Assignments and Participations. (a) Each Lender may, upon at least five Business Days’ notice to such Lender and the Administrative Agent, assign to one or more Eligible Assignees all or a portion of its rights and obligations under this Agreement (including all or a portion of its Term Loan Commitment, the Term Loan Advances owing to it and the Note or Notes held by it); provided, however, that (i) each such assignment shall be of a uniform, and not a varying, percentage of all rights and obligations under this Agreement, (ii) except in the case of an assignment to a Person that, immediately prior to such assignment, was a Lender, an Affiliate of any Lender or an Approved Fund of any Lender or an assignment of all of a Lender’s rights and obligations under this Agreement, the aggregate amount of the Term Loan Commitments or Term Loan Advances being assigned to such Eligible Assignee pursuant to such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $5,000,000 (or such lesser amount as shall be approved by the Administrative Agent and, so long as no Default shall have occurred and be continuing at the time of effectiveness of such assignment, BMCA), (iii) each such assignment shall be to an Eligible Assignee, (iv) except in the case of an assignment by a Person that, immediately prior to such assignment, was a Lender, to one of its Affiliates, no such assignments shall be permitted without the consent of the Administrative Agent and, so long as no Default shall have occurred and be continuing at the time of effectiveness of such assignment, BMCA (in each case, which consents shall not be unreasonably withheld) and (v) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together with any Note or Notes subject to such assignment and a processing and recordation fee of $3,500. (b) Upon such execution, delivery, acceptance and recording, from and after the effective date specified in such 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, have the rights and obligations of a Lender hereunder and (ii) the Lender assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (other than its rights under Sections 2.09, 2.11 and 8.04 to the extent any claim thereunder relates to an event arising prior to such assignment) and be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all of the remaining portion of an assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto). (c) By executing and delivering an Assignment and Acceptance, each Lender assignor thereunder and each assignee thereunder confirm to and agree with each other and the other parties thereto and hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with any Loan Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value of, or the perfection or priority of any lien or security interest created or purported to be created under or in connection with, any Loan Document or any other instrument or document furnished pursuant thereto; (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party or the performance or observance by any Loan Party of any of its obligations under any Loan Document or any other instrument or document furnished pursuant thereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 4.01 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) such assignee will, independently and without reliance upon any Agent, such assigning Lender or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) such assignee confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes each Agent to take such action as agent on its behalf and to exercise such powers and discretion under the Loan Documents as are delegated to such Agent by the terms hereof and thereof, together with such powers and discretion as are reasonably incidental thereto; and (vii) such assignee agrees that it will perform in accordance with their terms all of the obligations that by the terms of this Agreement are required to be performed by it as a Lender. (d) The Administrative Agent acting for this purpose (but only for this purpose) as the agent of the Borrowers, shall maintain at its address referred to in Section 8.02 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 Lenders and the Term Loan Commitment of, and principal amount of the Term Loan Advances 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 Borrowers, the Agents and the Lenders shall treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrowers or any Agent or any Lender at any reasonable time and from time to time upon reasonable prior notice. (e) Notwithstanding anything to the contrary contained in clause (b) above, the Term Loan Advances (including the Notes evidencing such Term Loan Advances) are registered obligations and the right, title, and interest of the Lenders and their assignees in and to such Term Loan Advances shall be transferable only upon notation of such transfer in the Register. A Note shall only evidence the Lender’s or an assignee’s right title and interest in and to the related Term Loan Advance, and in no event is any such Note to be considered a bearer instrument or obligation. This Section 8.07 shall be construed so that the Term Loan Advances are at all times maintained in “registered form” within the meaning of sections 163(f), 871(h)(2) and 881(c)(2) of the Internal Revenue Code and any related regulations (or any successor provisions of the Internal Revenue Code or such regulations). Solely for purposes of this and for tax purposes only, the Administrative Agent shall act as each Borrower’s agent for purposes of maintaining such notations of transfer in the Register. (f) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee, together with any Note or Notes subject to such assignment, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit C hereto, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to BMCA and each other Agent. In the case of any assignment by a Lender, within five Business Days after its receipt of such notice, the Borrowers, at their own expense, shall, if requested by the assignee, execute and deliver to the Administrative Agent in exchange for the surrendered Note or Notes an amended and restated Note (which shall be marked “Amended and Restated”) to the order of such Eligible Assignee in an amount equal to the Term Loan Commitment assumed by it under each Facility pursuant to such Assignment and Acceptance and, if any assigning Lender has retained a Term Loan Commitment hereunder under such Facility and has requested a replacement Note, an amended and restated Note to the order of such assigning Lender in an amount equal to the Term Loan Commitment retained by it hereunder. Such amended and restated 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 Assignment and Acceptance and shall otherwise be in substantially the form of Exhibit A hereto. (g) Each Lender may sell participations to one or more Persons (other than any Loan Party or any of its Affiliates) in or to all or a portion of its rights and obligations under this Agreement (including all or a portion of its Term Loan Commitments, the Term Loan Advances owing to it and the Note or Notes (if any) held by it); provided, however, that (i) such Lender’s obligations under this Agreement (including its Term Loan Commitments) shall remain unchanged, (ii) 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, (iv) the Borrowers, the Agents and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and (v) no participant under any such participation shall have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent requires the consent of all Lenders. (h) Any Lender may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section 8.07, disclose to the assignee or participant or proposed assignee or participant any information relating to the Borrowers furnished to such Lender by or on behalf of the Borrowers; provided, however, 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 received by it from such Lender in accordance with the terms of Section 8.09. (i) Notwithstanding any other provision set forth in this Agreement, any Lender may at any time create a security interest in all or any portion of its rights under this Agreement (including the Term Loan 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 System. (j) Notwithstanding anything to the contrary contained herein, any Lender that is a fund that invests in bank loans may create a security interest in all or any portion of the Term Loan Advances owing to it and the Note or Notes held by it to the trustee for holders of obligations owed, or securities issued, by such fund as security for such obligations or securities, provided, that unless and until such trustee actually becomes a Lender in compliance with the other provisions of this Section 8.07, (i) no such pledge shall release the pledging Lender from any of its obligations under the Loan Documents and (ii) such trustee shall not be entitled to exercise any of the rights of a Lender under the Loan Documents even though such trustee may have acquired ownership rights with respect to the pledged interest through foreclosure or otherwise. (k) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Lender”) may grant to a special purpose funding vehicle identified as such in writing from time to time by the Granting Lender to the Administrative Agent and BMCA (an “SPC”) the option to provide all or any part of any Term Loan Advance that such Granting Lender would otherwise be obligated to make pursuant to this Agreement, provided that (i) nothing herein shall constitute a commitment by any SPC to fund any Term Loan Advance, and (ii) if an SPC elects not to exercise such option or otherwise fails to make all or any part of such Term Loan Advance, the Granting Lender shall be obligated to make such Term Loan Advance pursuant to the terms hereof. The making of an Advance by an SPC hereunder shall utilize the Term Loan Commitment of the Granting Lender to the same extent, and as if, such Term Loan Advance were made by such Granting Lender. Each party hereto hereby agrees that (i) no SPC shall be liable for any indemnity or similar payment obligation under this Agreement for which a Lender would be liable, (ii) no SPC shall be entitled to the benefits of Sections 2.09 and 2.11 (or any other increased costs protection provision) and (iii) the Granting Bank shall for all purposes, including the approval of any amendment or waiver of any provision of any Loan Document, remain the Lender of record hereunder. In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior Debt of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency, or liquidation proceeding under the laws of the United States or any State thereof. Notwithstanding anything to the contrary contained in this Agreement, any SPC may (i) with notice to, but without prior consent of, BMCA and the Administrative Agent and with the payment of a processing fee of $500 and without paying any processing fee therefor, assign all or any portion of its interest in any Term Loan Advance to the Granting Lender and (ii) disclose on a confidential basis any non-public information relating to its funding of Term Loan Advance to any rating agency, commercial paper dealer or provider of any surety or guarantee or credit or liquidity enhancement to such SPC. This subsection (k) may not be amended without the prior written consent of each Granting Lender, all or any part of whose Term Loan Advances are being funded by the SPC at the time of such amendment.

Appears in 2 contracts

Samples: Term Loan Agreement (BMCA Acquisition Sub Inc.), Term Loan Agreement (Building Materials Manufacturing Corp)

Assignments and Participations. (a) ~~Each Lender may~~Subject to the EKN General Conditions, ~~upon at least five Business Days’ notice to such Lender~~ the prior approval of EKN and the prior written consent of the Administrative Agent (which, in the case of the Administrative Agent, shall not be unreasonably withheld), each Lender may assign to one or more ~~Eligible Assignees~~ banks or other entities (including any trust or other Person in connection with a securitization or monetization of the Advances or other indirect raising of capital) all or a portion of its rights and obligations under this Agreement (including all or a ~~portion of its Term Loan Commitment, the Term Loan Advances owing to it and the Note or Notes held by it); provided, however, that~~ 125 (i) each such assignment of any Commitments shall be of a uniform, and not a varying, percentage of all rights and obligations under ~~this Agreement,~~ and in respect of all Commitments; (ii) except in the case of an assignment to a Person that, immediately prior to such assignment, was a ~~Lender, an Affiliate of any Lender or an Approved Fund of any~~ Lender or an assignment of all of a Lender’s 's rights and obligations under this Agreement, the ~~aggregate~~ amount of the ~~Term Loan Commitments or Term Loan~~ Commitment and/or portions of Advances of the assigning Lender being assigned ~~to such Eligible Assignee~~ pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $5,000,000 ~~(or such lesser amount as~~ and shall be ~~approved by the Administrative Agent and, so long as no Default shall have occurred and be continuing at the time~~ an integral multiple of ~~effectiveness of such assignment, BMCA),~~ $1,000,000; (iii) each such assignment shall be to an Eligible Assignee, (iv) except in the case of an assignment by a Person that, immediately prior to such assignment, was a Lender, to one of its Affiliates, no such assignments shall be permitted without the consent of the Administrative Agent and, so long as no Default shall have occurred and be continuing at the time of effectiveness of such assignment, BMCA (in each case, which consents shall not be unreasonably withheld) and (v) the parties to each such assignment ~~shall~~ shall: (A) execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together with ~~any Note or Notes subject to such assignment and~~ a processing and recordation fee of $~~3,500~~2,500; and (B) deliver a copy of such Assignment and Acceptance to the Borrower at the time it delivers a copy to the Administrative Agent; and (iv) unless the Borrower shall have consented thereto, no such assignment of undrawn Commitments shall be made: (A) except to a Person that shall have represented that it has a combined capital and surplus in excess of $50,000,000; and (B) except to a Person, other than a commercial bank or other financial institution, that shall have represented that such Person is not engaged in, and does not have an Affiliate that is engaged in, the business of providing PCS telecommunications services to the public. (b) Upon such execution, delivery, acceptance and recording, from and after the effective date specified in such Assignment and Acceptance, : (i) the assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder and under the Intercreditor Agreement have been assigned to it pursuant to such Assignment and Acceptance, have the rights and obligations of a Lender hereunder and thereunder; and (ii) the Lender assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights ~~(other than its rights under Sections 2.09, 2.11 and 8.04 to the extent any claim thereunder relates to an event arising prior to such assignment)~~ and be released from its obligations under this Agreement and the Intercreditor Agreement (and, in the case of an Assignment and Acceptance covering all of or the remaining portion of an assigning Lender’s 's rights and obligations under this Agreement, such Lender shall cease to be a party hereto). (c) By executing and delivering an Assignment and Acceptance, ~~each~~ the Lender assignor thereunder and ~~each~~ the assignee thereunder confirm to and agree with each other and the other parties ~~thereto and~~ hereto as follows: : (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with ~~any Loan Document~~ this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value ~~of, or the perfection or priority~~ of ~~any lien or security interest created or purported to be created under or in connection with, any Loan Document~~ this Agreement or any other instrument or document furnished pursuant ~~thereto;~~ hereto; (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of ~~any Loan Party~~ the Borrower or the performance or observance by ~~any Loan Party~~ the Borrower of any of its obligations under ~~any Loan Document~~ this Agreement or any other instrument or document furnished pursuant ~~thereto;~~ hereto; (iii) such assignee confirms that it has received a copy of this Agreement, the Intercreditor Agreement and each other Loan Document, together with copies of the financial statements referred to in Section ~~4.01~~ 10.1(bb) and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; ; (iv) such assignee will, independently and without reliance upon ~~any Agent~~the Administrative Agent or the Arranger, such assigning Lender or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; ; (v~~) such assignee confirms that it is an Eligible Assignee; (vi~~) such assignee appoints and authorizes ~~each~~ the Administrative Agent to take such action as agent on its behalf and to exercise such powers and discretion under ~~the Loan Documents~~ this Agreement as are delegated to ~~such~~ the Administrative Agent by the terms ~~hereof and thereof~~hereof, together with such powers and discretion as are reasonably incidental thereto~~; and~~ ; (~~vii~~vi) such assignee agrees that it will perform in accordance with their terms all of the obligations that by the terms of this Agreement and the Intercreditor Agreement are required to be performed by it as a Lender; 127 (vii) such assignee makes the representations set forth in subsection (a)(iv) above and in Section 13.13; and (viii) such assignee confirms that it is bound by the confidentiality provisions set forth in Section 14.14. (d) The Administrative Agent ~~acting for this purpose (but only for this purpose) as the agent of the Borrowers,~~ shall maintain at its address referred to in Section ~~8.02~~ 14.2 a copy of each Assignment and Acceptance delivered to and accepted by it and a register for the recordation of the names and addresses of the Lenders and the ~~Term Loan Commitment~~ Commitments of, and portions of the principal amount of the ~~Term Loan~~ 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 ~~Borrowers~~Borrower, the ~~Agents~~ Administrative Agent and the Lenders ~~shall~~ 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 Agent~~ Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice. (e) Notwithstanding anything to the contrary contained in clause (b) above, the Term Loan Advances (including the Notes evidencing such Term Loan Advances) are registered obligations and the right, title, and interest of the Lenders and their assignees in and to such Term Loan Advances shall be transferable only upon notation of such transfer in the Register. A Note shall only evidence the Lender’s or an assignee’s right title and interest in and to the related Term Loan Advance, and in no event is any such Note to be considered a bearer instrument or obligation. This Section 8.07 shall be construed so that the Term Loan Advances are at all times maintained in “registered form” within the meaning of sections 163(f), 871(h)(2) and 881(c)(2) of the Internal Revenue Code and any related regulations (or any successor provisions of the Internal Revenue Code or such regulations). Solely for purposes of this and for tax purposes only, the Administrative Agent shall act as each Borrower’s agent for purposes of maintaining such notations of transfer in the Register. (f) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee, ~~together with any Note or Notes subject to such assignment,~~ the Administrative Agent shall, if such Assignment and Acceptance has been completed and is substantially in ~~substantially~~ the form of Exhibit ~~C hereto~~C, --------- (i) accept such Assignment and Acceptance, ; (ii) record the information contained therein in the ~~Register and~~ Register; and (iii) give prompt notice thereof to ~~BMCA and each other Agent. In~~ the case of any assignment by a Lender, within five Business Days after its receipt of such notice, the Borrowers, at their own expense, shall, if requested by the assignee, execute and deliver to the Administrative Agent in exchange for the surrendered Note or Notes an amended and restated Note (which shall be marked “Amended and Restated”) to the order of such Eligible Assignee in an amount equal to the Term Loan Commitment assumed by it under each Facility pursuant to such Assignment and Acceptance and, if any assigning Lender has retained a Term Loan Commitment hereunder under such Facility and has requested a replacement Note, an amended and restated Note to the order of such assigning Lender in an amount equal to the Term Loan Commitment retained by it hereunder. Such amended and restated 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 Assignment and Acceptance and shall otherwise be in substantially the form of Exhibit A heretoBorrower. (g) Each Lender may sell participations to one or more Persons (other than any Loan Party or any of its Affiliates) in or to all or a portion of its rights and obligations under this Agreement (including all or a portion of its Term Loan Commitments, the Term Loan Advances owing to it and the Note or Notes (if any) held by it); provided, however, that (i) such Lender’s obligations under this Agreement (including its Term Loan Commitments) shall remain unchanged, (ii) 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, (iv) the Borrowers, the Agents and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and (v) no participant under any such participation shall have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent requires the consent of all Lenders. (hf) Any Lender may, in connection with any assignment or ~~participation or~~ proposed assignment ~~or participation~~ pursuant to this Section ~~8.07~~14.9, disclose to the assignee or participant or proposed assignee or ~~participant~~ participant, any information relating to the ~~Borrowers~~ Borrower furnished to such Lender by or on behalf of the ~~Borrowers~~Borrower; ~~provided, however,~~ 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 received by it from such ~~Lender in accordance with the terms of Section 8.09~~Lender. (ig) Notwithstanding any other provision set forth in this Agreement, any Lender may at any time create a security interest in all or any portion of its rights under this Agreement (including its Commitment Percentage in the ~~Term Loan Advances owing to it and the Note or Notes held by it~~Advances) in favor of any Federal Reserve Bank in accordance with Regulation A of the Board of Governors of the Federal Reserve System. (jh) Notwithstanding anything to the contrary contained herein, any Lender that is a fund that invests in bank loans may create a security interest in all or any portion of the Term Loan Advances owing to it and the Note or Notes held by it to the trustee for holders of obligations owed, or securities issued, by such fund as security for such obligations or securities, provided, that unless and until such trustee actually becomes a Lender in compliance with the other provisions of this Section 8.07, (i) no such pledge shall release the pledging Lender from any of its obligations under the Loan Documents and (ii) such trustee shall not be entitled to exercise any of the rights of a Lender under the Loan Documents even though such trustee may have acquired ownership rights with respect to the pledged interest through foreclosure or otherwise. (k) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Lender”) may grant to a special purpose funding vehicle identified as such in writing from time to time by the Granting Lender to the Administrative Agent and BMCA (an “SPC”) the option to provide all or any part of any Term Loan Advance that such Granting Lender would otherwise be obligated to make pursuant to this Agreement, provided that (i) nothing herein shall constitute a commitment by any SPC to fund any Term Loan Advance, and (ii) if an SPC elects not to exercise such option or otherwise fails to make all or any part of such Term Loan Advance, the Granting Lender shall be obligated to make such Term Loan Advance pursuant to the terms hereof. The making of an Advance by an SPC hereunder shall utilize the Term Loan Commitment of the Granting Lender to the same extent, and as if, such Term Loan Advance were made by such Granting Lender. Each party hereto hereby agrees that (i) no SPC shall be liable for any indemnity or similar payment obligation under this Agreement for which a Lender would be liable, (ii) no SPC shall be entitled to the benefits of Sections 2.09 and 2.11 (or any other ~~increased costs protection provision) and (iii) the Granting Bank shall for all purposes, including the approval of any amendment or waiver of any~~ provision of any Loan Document, remain the Lender of record hereunder. In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior Debt of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency, or liquidation proceeding under the laws of the United States or any State thereof. Notwithstanding anything to the contrary contained set forth in this Agreement, any ~~SPC~~ Lender may ~~(i) with notice to, but without prior consent of, BMCA and the Administrative Agent and with the payment of a processing fee of $500 and without paying~~ at any ~~processing fee therefor,~~ time assign all or ~~any~~ a portion of its ~~interest~~ rights and obligations hereunder to EKN in ~~any Term Loan Advance to~~ accordance with the Granting Lender and (ii) disclose on a confidential basis any non-public information relating to its funding of Term Loan Advance to any rating agency, commercial paper dealer or provider of any surety or guarantee or credit or liquidity enhancement to such SPCEKN Documents. ~~This subsection (k) may not be amended without the prior written consent of each Granting Lender, all or any part of whose Term Loan Advances are being funded by the SPC at the time of such amendment.~~128

Appears in 2 contracts

Samples: Loan Agreement (Omnipoint Corp \De\), Loan Agreement (Omnipoint Corp \De\)

Assignments and Participations. (a) Each Lender may, upon at least five Business Days’ notice to such Lender and the Administrative Agent, assign to one or more Eligible Assignees all or a portion of its rights and obligations under this Agreement (including all or a portion of its ~~Term Loan~~ Commitment, the ~~Term Loan~~ Advances owing to it and the Note or Notes held by it); provided, however, that (i) each such assignment shall be of a uniform, and not a varying, percentage of all rights and obligations under ~~this Agreement~~and in respect of any or all of the Facilities, (ii) except in the case of an assignment to a Person that, immediately prior to such assignment, was a Lender, an Affiliate of any Lender or an Approved Fund of any Lender or an assignment of all of a Lender’s rights and obligations under this Agreement, the aggregate amount of the ~~Term Loan~~ Commitments or ~~Term Loan~~ Advances being assigned to such Eligible Assignee pursuant to such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $5,000,000 (or such lesser amount as shall be approved by the Administrative Agent and, so long as no Default shall have occurred and be continuing at the time of effectiveness of such assignment, ~~BMCA~~the Borrowers), (iii) each such assignment shall be to an Eligible Assignee, (iv) except in the case of an assignment by a Person that, immediately prior to such assignment, was a Lender, to one of its Affiliates, no such assignments shall be permitted without the consent of the Administrative Agent and, so long as no Default shall have occurred and be continuing at the time of effectiveness of such assignment, BMCA (in each case, which consents shall not be unreasonably withheld) and (v) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together with any Note or Notes subject to such assignment and a processing and recordation fee of $3,500. (b) Upon such execution, delivery, acceptance and recording, from and after the effective date specified in such 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, have the rights and obligations of a Lender or Issuing Bank, as the case may be, hereunder and (ii) the Lender or Issuing Bank assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (other than its rights under Sections ~~2.09~~2.10, ~~2.11~~ 2.12 and 8.04 to the extent any claim thereunder relates to an event arising prior to such assignment) and be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all of the remaining portion of an assigning Lender’s or Issuing Bank’s rights and obligations under this Agreement, such Lender or Issuing Bank shall cease to be a party hereto). (c) By executing and delivering an Assignment and Acceptance, each Lender Party assignor thereunder and each assignee thereunder confirm to and agree with each other and the other parties thereto and hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender Party makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with any Loan Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value of, or the perfection or priority of any lien or security interest created or purported to be created under or in connection with, any Loan Document or any other instrument or document furnished pursuant thereto; (ii) such assigning Lender Party makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party or the performance or observance by any Loan Party of any of its obligations under any Loan Document or any other instrument or document furnished pursuant thereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 4.01 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) such assignee will, independently and without reliance upon any Agent, such assigning Lender Party or any other Lender Party and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) such assignee confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes each Agent to take such action as agent on its behalf and to exercise such powers and discretion under the Loan Documents as are delegated to such Agent by the terms hereof and thereof, together with such powers and discretion as are reasonably incidental thereto; and (vii) such assignee agrees that it will perform in accordance with their terms all of the obligations that by the terms of this Agreement are required to be performed by it as a ~~Lender~~Lender or Issuing Bank, as the case may be. (d) The Administrative Agent acting for this purpose (but only for this purpose) as the agent of the Borrowers, shall maintain at its address referred to in Section 8.02 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 ~~Lenders~~ Lender Parties and the ~~Term Loan~~ Commitment under each Facility of, and principal amount of the ~~Term Loan~~ Advances owing under each Facility to, each Lender Party from time to time (the “Register”). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrowers, the Agents and the ~~Lenders~~ Lender Parties shall treat each Person whose name is recorded in the Register as a Lender Party hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrowers or any Agent or any Lender Party at any reasonable time and from time to time upon reasonable prior notice. (e) Notwithstanding anything to the contrary contained in clause (b) above, the ~~Term Loan~~ Advances (including the Notes evidencing such ~~Term Loan~~ Advances) are registered obligations and the right, title, and interest of the ~~Lenders~~ Lender Parties and their assignees in and to such ~~Term Loan~~ Advances shall be transferable only upon notation of such transfer in the Register. A Note shall only evidence the ~~Lender~~Lender Party’s or an assignee’s right title and interest in and to the related ~~Term Loan~~ Advance, and in no event is any such Note to be considered a bearer instrument or obligation. This Section 8.07 shall be construed so that the ~~Term Loan~~ Advances are at all times maintained in “registered form” within the meaning of sections 163(f), 871(h)(2) and 881(c)(2) of the Internal Revenue Code and any related regulations (or any successor provisions of the Internal Revenue Code or such regulations). Solely for purposes of this and for tax purposes only, the Administrative Agent shall act as ~~each Borrower’s~~ the Borrowers’ agent for purposes of maintaining such notations of transfer in the Register. (f) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender Party and an assignee, together with any Note or Notes subject to such assignment, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit C hereto, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to BMCA and each other Agent. In the case of any assignment by a Lender, within five Business Days after its receipt of such notice, the Borrowers, at their own expense, shall, if requested by the assignee, execute and deliver to the Administrative Agent in exchange for the surrendered Note or Notes an amended and restated Note (which shall be marked “Amended and Restated”) to the order of such Eligible Assignee in an amount equal to the ~~Term Loan~~ Commitment assumed by it under each Facility pursuant to such Assignment and Acceptance and, if any assigning Lender has retained a ~~Term Loan~~ Commitment hereunder under such Facility and ~~has~~ has requested a replacement Note, an amended and restated Note to the order of such assigning Lender in an amount equal to the ~~Term Loan~~ Commitment retained by it hereunder. Such amended and restated 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 Assignment and Acceptance and shall otherwise be in substantially the form of Exhibit A hereto. (g) The Issuing Bank may assign to an Eligible Assignee all of its rights and obligations under the undrawn portion of its Letter of Credit Commitment at any time; provided, however, that (i) each such assignment shall be to an Eligible Assignee and (ii) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together with a processing and recordation fee of $3,500. (h) Each Lender Party may sell participations to one or more Persons (other than any Loan Party or any of its Affiliates) in or to all or a portion of its rights and obligations under this Agreement (including all or a portion of its ~~Term Loan~~ Commitments, the ~~Term Loan~~ Advances owing to it and the Note or Notes (if any) held by it); provided, however, that (i) such ~~Lender~~Lender Party’s obligations under this Agreement (including its ~~Term Loan~~ Commitments) shall remain unchanged, (ii) such Lender Party shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) such Lender Party shall remain the holder of any such Note for all purposes of this Agreement, (iv) the Borrowers, the Agents and the other ~~Lenders~~ Lender Parties shall continue to deal solely and directly with such Lender Party in connection with such ~~Lender~~Lender Party’s rights and obligations under this Agreement and (v) no participant under any such participation shall have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent requires the consent of all ~~Lenders~~Lender Parties. (hi) Any Lender Party may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section 8.07, disclose to the assignee or participant or proposed assignee or participant any information relating to the Borrowers furnished to such Lender Party by or on behalf of the Borrowers; provided, however, 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 received by it from such Lender Party in accordance with the terms of Section ~~8.09~~8.10. (ij) Notwithstanding any other provision set forth in this Agreement, any Lender Party may at any time create a security interest in all or any portion of its rights under this Agreement (including the ~~Term Loan~~ 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 System. (jk) Notwithstanding anything to the contrary contained herein, any Lender that is a fund that invests in bank loans may create a security interest in all or any portion of the ~~Term Loan~~ Advances owing to it and the Note or Notes held by it to the trustee for holders of obligations owed, or securities issued, by such fund as security for such obligations or securities, provided, that unless and until such trustee actually becomes a Lender in compliance with the other provisions of this Section 8.07, (i) no such pledge shall release the pledging Lender from any of its obligations under the Loan Documents and (ii) such trustee shall not be entitled to exercise any of the rights of a Lender under the Loan Documents even though such trustee may have acquired ownership rights with respect to the pledged interest through foreclosure or otherwise. (kl) Notwithstanding anything to the contrary contained herein, any Lender Party (a “Granting Lender”) may grant to a special purpose funding vehicle identified as such in writing from time to time by the Granting Lender to the Administrative Agent and BMCA (an “SPC”) the option to provide all or any part of any ~~Term Loan~~ Advance that such Granting Lender would otherwise be obligated to make pursuant to this Agreement, provided that (i) nothing herein shall constitute a commitment by any SPC to fund any ~~Term Loan~~ Advance, and (ii) if an SPC elects not to exercise such option or otherwise fails to make all or any part of such ~~Term Loan~~ Advance, the Granting Lender shall be obligated to make such ~~Term Loan~~ Advance pursuant to the terms hereof. The making of an Advance by an SPC hereunder shall utilize the ~~Term Loan~~ Commitment of the Granting Lender to the same extent, and as if, such ~~Term Loan~~ Advance were made by such Granting Lender. Each party hereto hereby agrees that (i) no SPC shall be liable for any indemnity or similar payment obligation under this Agreement for which a Lender Party would be liable, (ii) no SPC shall be entitled to the benefits of Sections ~~2.09~~ 2.10 and ~~2.11~~ 2.12 (or any other increased costs protection provision) and (iii) the Granting Bank shall for all purposes, including the approval of any amendment or waiver of any provision of any Loan Document, remain the Lender Party of record hereunder. In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior Debt of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency, or liquidation proceeding under the laws of the United States or any State thereof. Notwithstanding anything to the contrary contained in this Agreement, any SPC may (i) with notice to, but without prior consent of, BMCA and the Administrative Agent and with the payment of a processing fee of $500 and without paying any processing fee therefor, assign all or any portion of its interest in any ~~Term Loan~~ Advance to the Granting Lender and (ii) disclose on a confidential basis any non-public information relating to its funding of ~~Term Loan Advance~~ Advances to any rating agency, commercial paper dealer or provider of any surety or guarantee or credit or liquidity enhancement to such SPC. This subsection (k) may not be amended without the prior written consent of each Granting Lender, all or any part of whose ~~Term Loan~~ Advances are being funded by the SPC at the time of such amendment.

Appears in 2 contracts

Samples: Revolving Credit Agreement (BMCA Acquisition Sub Inc.), Revolving Credit Agreement (Building Materials Manufacturing Corp)

Assignments and Participations. (a) Each Lender ~~may~~may and, so long as no Default shall have occurred and be continuing, if demanded by the Borrowers (following a demand by such Lender pursuant to Section 2.10 or 2.12) upon at least five Business Days’ ' notice to such Lender and the Administrative Agent, will assign to one or more Eligible Assignees all or a portion of its rights and obligations under this Agreement (~~including~~ including, without limitation, all or a portion of its ~~Term Loan Commitment~~Commitment or Commitments, the ~~Term Loan~~ Advances owing to it and the Note or Notes held by it); ~~provided~~PROVIDED, ~~however~~HOWEVER, that (i) each such assignment shall be of a uniform, and not a varying, percentage of all rights and obligations under ~~this Agreement~~and in respect of one or more Facilities, (ii) except in the case of an assignment to a Person that, immediately prior to such assignment, was a Lender, an Affiliate of any Lender or an Approved Fund of any Lender or an assignment of all of a Lender’s 's rights and obligations under this Agreement, the aggregate amount of the ~~Term Loan~~ Commitments ~~or Term Loan Advances~~ being assigned to such Eligible Assignee pursuant to such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $5,000,000 or an integral multiple of $1,000,000 in excess thereof (or such lesser amount as shall be approved by the Administrative Agent and, so long as no Default shall have occurred and be continuing at the time of effectiveness of such assignment, ~~BMCA)~~the Borrowers) under each Facility for which a Commitment is being assigned, (iii) each such assignment shall be to an Eligible Assignee, (iv) ~~except in~~ each such assignment made as a result of a demand by the ~~case of~~ Borrowers pursuant to this Section 9.07(a) shall be arranged by the Borrowers after consultation with the Administrative Agent and shall be either an assignment of all of the rights and obligations of the assigning Lender under this Agreement or an assignment of a portion of such rights and obligations made concurrently with another such assignment or other such assignments that together cover all of the rights and obligations of the assigning Lender under this Agreement, (v) no Lender shall be obligated to make any such assignment as a result of a demand by ~~a Person that, immediately prior~~ the Borrowers pursuant to this Section 9.07(a) unless and until such Lender shall have received one or more payments from either the Borrowers or one or more Eligible Assignees in an aggregate amount at least equal to the aggregate outstanding principal amount of the Advances owing to such ~~assignment, was a~~ Lender, together with accrued interest thereon to ~~one~~ the date of ~~its Affiliates~~payment of such principal amount and all other amounts payable to such Lender under this Agreement, (vi) no such assignments shall be permitted without the consent of the Administrative Agent ~~and, so long as no Default~~ until the Administrative Agent shall have ~~occurred and be continuing at~~ notified the ~~time~~ Lender Parties that syndication of ~~effectiveness of such assignment, BMCA (in each case, which consents shall not be unreasonably withheld)~~ the Commitments hereunder has been completed and (vvii) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together with any Note or Notes subject to such assignment and a processing and recordation fee of $3,500; PROVIDED, HOWEVER, that for each such assignment made as a result of a demand by any Borrower pursuant to this Section 9.07(a), such Borrower shall pay to the Administrative Agent the applicable processing and recordation fee. (b) Upon such execution, delivery, acceptance and recording, from and after the effective date specified in such 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, have the rights and obligations of a Lender or Issuing Bank, as the case may be, hereunder and (ii) the Lender or Issuing Bank assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (other than its rights under Sections ~~2.09~~2.10, ~~2.11~~ 2.12 and ~~8.04~~ 9.04 to the extent any claim thereunder relates to an event arising prior to such assignment) and be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all of the remaining portion of an assigning Lender’s 's or Issuing Bank's rights and obligations under this Agreement, such Lender or Issuing Bank shall cease to be a party hereto). (c) By executing and delivering an Assignment and Acceptance, each Lender Party assignor thereunder and each assignee thereunder confirm to and agree with each other and the other parties thereto and hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender Party makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with any Loan Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value of, or the perfection or priority of any lien or security interest created or purported to be created under or in connection with, any Loan Document or any other instrument or document furnished pursuant thereto; (ii) such assigning Lender Party makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party or the performance or observance by any Loan Party of any of its obligations under any Loan Document or any other instrument or document furnished pursuant thereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 4.01 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) such assignee will, independently and without reliance upon any Agent, such assigning Lender Party or any other Lender Party and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) such assignee confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes each Agent to take such action as agent on its behalf and to exercise such powers and discretion under the Loan Documents as are delegated to such Agent by the terms hereof and thereof, together with such powers and discretion as are reasonably incidental thereto; and (vii) such assignee agrees that it will perform in accordance with their terms all of the obligations that by the terms of this Agreement are required to be performed by it as a ~~Lender~~Lender or Issuing Bank, as the case may be. (d) The Administrative Agent ~~acting for this purpose (but only for this purpose) as the agent of the Borrowers,~~ shall maintain at its address referred to in Section ~~8.02~~ 9.02 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 ~~Lenders~~ Lender Parties and the ~~Term Loan~~ Commitment under each Facility of, and principal amount of the ~~Term Loan~~ Advances owing under each Facility to, each Lender Party from time to time (the ~~“Register”~~"REGISTER"). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and ~~the Borrowers~~each Borrower, the Agents and the ~~Lenders shall~~ Lender Parties may treat each Person whose name is recorded in the Register as a Lender Party hereunder for all purposes of this Agreement. The Register shall be available for inspection by ~~the Borrowers~~ any Borrower or any Agent or any Lender Party at any reasonable time and from time to time upon reasonable prior notice. (e) Notwithstanding anything to the contrary contained in clause (b) above, the Term Loan Advances (including the Notes evidencing such Term Loan Advances) are registered obligations and the right, title, and interest of the Lenders and their assignees in and to such Term Loan Advances shall be transferable only upon notation of such transfer in the Register. A Note shall only evidence the Lender’s or an assignee’s right title and interest in and to the related Term Loan Advance, and in no event is any such Note to be considered a bearer instrument or obligation. This Section 8.07 shall be construed so that the Term Loan Advances are at all times maintained in “registered form” within the meaning of sections 163(f), 871(h)(2) and 881(c)(2) of the Internal Revenue Code and any related regulations (or any successor provisions of the Internal Revenue Code or such regulations). Solely for purposes of this and for tax purposes only, the Administrative Agent shall act as each Borrower’s agent for purposes of maintaining such notations of transfer in the Register. (f) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender Party and an assignee, together with any Note or Notes subject to such assignment, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit C hereto, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to ~~BMCA~~ the Borrowers and each other Agent. In the case of any assignment by a Lender, within five Business Days after its receipt of such notice, ~~the Borrowers~~each Borrower, at ~~their~~ its own expense, ~~shall, if requested by the assignee,~~ shall execute and deliver to the Administrative Agent in exchange for the surrendered Note or Notes ~~an amended and restated~~ a new Note ~~(which shall be marked “Amended and Restated”)~~ to the order of such Eligible Assignee in an amount equal to the ~~Term Loan~~ Commitment assumed by it under each Facility pursuant to such Assignment and Acceptance and, if any assigning Lender has retained a ~~Term Loan~~ Commitment hereunder under such ~~Facility and has requested~~ Facility, a ~~replacement Note, an amended and restated~~ new Note to the order of such assigning Lender in an amount equal to the ~~Term Loan~~ Commitment retained by it hereunder. Such ~~amended and restated~~ 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 Assignment and Acceptance and shall otherwise be in substantially the form of Exhibit A A-1 or A-2 hereto, as the case may be. (f) Each Issuing Bank may assign to one or more Eligible Assignees all or a portion of its rights and obligations under the undrawn portion of its Letter of Credit Commitment at any time; PROVIDED, HOWEVER, that (i) except in the case of an assignment to a Person that immediately prior to such assignment was an Issuing Bank or an assignment of all of an Issuing Bank's rights and obligations under this Agreement, the amount of the Letter of Credit Commitment of the assigning Issuing Bank being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $5,000,000 and shall be in an integral multiple of $1,000,000 in excess thereof, (ii) each such assignment shall be to an Eligible Assignee and (iii) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together with a processing and recordation fee of $3,500. (g) Each Lender Party may sell participations to one or more Persons (other than any Loan Party or any of its Affiliates) in or to all or a portion of its rights and obligations under this Agreement (~~including~~ including, without limitation, all or a portion of its ~~Term Loan~~ Commitments, the ~~Term Loan~~ Advances owing to it and the Note or Notes (if any) held by it); ~~provided~~PROVIDED, ~~however~~HOWEVER, that (i) such ~~Lender’s~~ Lender Party's obligations under this Agreement (~~including~~ including, without limitation, its ~~Term Loan~~ Commitments) shall remain unchanged, (ii) such Lender Party shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) such Lender Party shall remain the holder of any such Note for all purposes of this Agreement, (iv) the Borrowers, the Agents and the other ~~Lenders~~ Lender Parties shall continue to deal solely and directly with such Lender Party in connection with such ~~Lender’s~~ Lender Party's rights and obligations under this Agreement and (v) no participant under any such participation shall have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent ~~requires~~ would reduce the ~~consent~~ principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, postpone any date fixed for any payment of principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, or release all ~~Lenders~~or substantially all of the Collateral. (h) Any Lender Party may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section ~~8.07~~9.07, disclose to the assignee or participant or proposed assignee or participant any information relating to the Borrowers furnished to such Lender Party by or on behalf of the Borrowers; ~~provided~~PROVIDED, ~~however~~HOWEVER, 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 received by it from such Lender ~~in accordance with the terms of Section 8.09~~Party. (i) Notwithstanding any other provision set forth in this Agreement, any Lender Party may at any time create a security interest in all or any portion of its rights under this Agreement (~~including~~ including, without limitation, the ~~Term Loan~~ 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 System. (j) Notwithstanding anything to the contrary contained herein, any Lender that is a fund that invests in bank loans may create a security interest in all or any portion of the Term Loan Advances owing to it and the Note or Notes held by it to the trustee for holders of obligations owed, or securities issued, by such fund as security for such obligations or securities, provided, that unless and until such trustee actually becomes a Lender in compliance with the other provisions of this Section 8.07Party, (~~i) no such pledge shall release the pledging Lender from any of its obligations under the Loan Documents and (ii) such trustee shall not be entitled to exercise any of the rights of~~ a Lender under the Loan Documents even though such trustee may have acquired ownership rights with respect to the pledged interest through foreclosure or otherwise. (k) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Lender”"GRANTING LENDER") may grant to a special purpose funding vehicle identified as such in writing from time to time by the Granting Lender to the Administrative Agent and ~~BMCA~~ the Borrowers (an “"SPC”") the option to provide all or any part of any ~~Term Loan~~ Advance that such Granting Lender would otherwise be obligated to make pursuant to this Agreement~~, provided~~ ; PROVIDED that (i) nothing herein shall constitute a commitment by any SPC to fund any ~~Term Loan~~ Advance, and (ii) if an SPC elects not to exercise such option or otherwise fails to make all or any part of such ~~Term Loan~~ Advance, the Granting Lender shall be obligated to make such ~~Term Loan~~ Advance pursuant to the terms hereof. The making of an Advance by an SPC hereunder shall utilize the ~~Term Loan~~ Commitment of the Granting Lender to the same extent, and as if, such ~~Term Loan~~ Advance were made by such Granting Lender. Each party hereto hereby agrees that (i) no SPC shall be liable for any indemnity or similar payment obligation under this Agreement for which a Lender Party would otherwise be ~~liable~~liable for so long as, and to the extent, the Granting Lender provides such indemnity or makes such payment and (ii) no SPC shall be entitled to the benefits of Sections ~~2.09~~ 2.10 and ~~2.11~~ 2.12 (or any other increased costs protection provision~~) and (iii) the Granting Bank shall for all purposes, including the approval of any amendment or waiver of any provision of any Loan Document, remain the Lender of record hereunder~~). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior Debt of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency, or liquidation proceeding under the laws of the United States or any State thereof. Notwithstanding anything to the contrary contained in this Agreement, any SPC may (i) with notice to, but without prior consent of, ~~BMCA~~ the Borrower, the Syndication Agent and the Administrative Agent ~~and with the payment of a processing fee of $500~~ and without paying any processing fee therefor, assign all or any portion of its interest in any ~~Term Loan~~ Advance to the Granting Lender and (ii) disclose on a confidential basis any non-public information relating to its funding of ~~Term Loan Advance~~ Advances to any rating agency, commercial paper dealer or provider of any surety or guarantee or credit or liquidity enhancement to such SPC. This subsection (k9.07(j) may not be amended without the prior written consent of each Granting Lender, all or any part of whose ~~Term Loan~~ Advances are being funded by the SPC at the time of such amendment. For the avoidance of doubt, with respect to the Agents, the other Lender Parties and the Borrowers, the Granting Bank shall for all purposes, including, without limitation, the approval of any amendment or waiver of any provision of any Loan Document, be the Lender Party of record hereunder. (k) Notwithstanding any other provision set forth in this Agreement, any Lender Party that is a fund that invests in bank loans may pledge all or any portion of its rights in connection with this Agreement to the trustee for holders of obligations owed, or securities issued, by such fund as security for such obligations or securities; PROVIDED that nothing contained herein shall affect any obligations of the Lender Party or such pledgee to comply with the requirements of Section 9.07 in order for such pledgee to become a Lender Party under this Agreement. No pledge described in the immediately preceding sentence shall release such Lender Party from its obligations under this Agreement.

Appears in 1 contract

Samples: Credit Agreement (Broadwing Inc)

Assignments and Participations. (a) Each Lender ~~may, upon at least five Business Days’ notice to such Lender and the Administrative Agent,~~ may assign to one or more ~~Eligible Assignees~~ banks or other entities all or a portion of its rights and obligations under this Agreement (~~including~~ including, without limitation, all or a portion of its ~~Term Loan Commitment~~Commitment or Commitments, the ~~Term Loan~~ Advances owing to it and the Note or Notes held by it); provided, however, that (i) ~~each such assignment shall be of a uniform, and not a varying, percentage of all rights and obligations under this Agreement, (ii)~~ except in the case of an assignment ~~to a Person that, immediately prior to such assignment, was a Lender, an Affiliate of any Lender or an Approved Fund of any Lender or an assignment~~ of all of a Lender’s 's rights and obligations under this Agreement, the ~~aggregate~~ amount of the ~~Term Loan Commitments or Term Loan Advances~~ Commitment of the assigning Lender being assigned ~~to such Eligible Assignee~~ pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $5,000,000 (~~or such lesser amount as shall be approved by the Administrative Agent and~~or, ~~so long as no Default shall have occurred and be continuing at the time of effectiveness of such assignment, BMCA), (iii) each such assignment shall be to an Eligible Assignee, (iv) except~~ in the ~~case of an~~ event that the assignment by is to a Person that, immediately prior to such assignment, was a Lender, ~~to one of its Affiliates~~$1,000,000), ~~no such assignments~~ unless a lesser amount shall be ~~permitted without the consent of~~ approved by the Administrative Agent ~~and~~and the Borrowers in their reasonable judgment, ~~so long~~ and shall be an integral multiple of $1,000,000, (ii) except in the case of an assignment of all of a Lender's rights and obligations under this Agreement, the amount of the Commitment of the assigning Lender being retained after giving effect to any such assignment (determined as ~~no Default shall have occurred~~ of the date of the Assignment and ~~be continuing at the time of effectiveness of~~ Acceptance with respect to such assignment) shall in no event be less than $5,000,000, ~~BMCA~~ (in iii) each ~~case, which consents~~ such assignment shall ~~not~~ be ~~unreasonably withheld)~~ to an Eligible Assignee and (viv) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together with any Note or Notes subject (except in the case of an Affiliate of a Lender) to such assignment and a processing and recordation fee of $~~3,500. (b)~~ 3,000. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in such Assignment and Acceptance, (ix) the assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, have the rights and obligations of a Lender hereunder and (iiy) the Lender assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights ~~(other than its rights under Sections 2.09, 2.11 and 8.04 to the extent any claim thereunder relates to an event arising prior to such assignment)~~ and be released from ~~its~~ such obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all of or the remaining portion of an assigning Lender’s 's rights and obligations under this Agreement, such Lender shall cease to be a party hereto). (cb) By executing and delivering an Assignment and Acceptance, ~~each~~ the Lender assignor thereunder and ~~each~~ the assignee thereunder confirm to and agree with each other and the other parties ~~thereto and~~ hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with ~~any Loan Document~~ this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value ~~of, or the perfection or priority~~ of ~~any lien or security interest created or purported to be created under or in connection with, any Loan Document~~ this Agreement or any other instrument or document furnished pursuant ~~thereto~~hereto; (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of ~~any Loan Party~~ the Borrowers or the performance or observance by ~~any Loan Party~~ the Borrowers of any of its obligations under ~~any Loan Document~~ this Agreement or any other instrument or document furnished pursuant ~~thereto~~hereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 4.01 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) such assignee will, independently and without reliance upon any Agent, such assigning Lender or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) such assignee confirms that it is an Eligible ~~Assignee~~Assignee or an Affiliate of the assignor; (vi) such assignee appoints and authorizes ~~each~~ the Administrative Agent to take such action as agent on its behalf and to exercise such powers and discretion under ~~the Loan Documents~~ this Agreement as are delegated to ~~such~~ the Administrative Agent by the terms ~~hereof and thereof~~hereof, together with such powers and discretion as are reasonably incidental thereto; and (vii) such assignee agrees that it will perform in accordance with their terms all of the obligations that by the terms of this Agreement are required to be performed by it as a Lender. (dc) The Administrative Agent ~~acting for this purpose (but only for this purpose) as the agent of the Borrowers,~~ shall maintain at its address referred to in Section 8.02 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 Lenders and the ~~Term Loan~~ Commitment of, and principal amount of the ~~Term Loan~~ 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 Borrowers, ~~the Agents~~ each Agent and the Lenders ~~shall~~ 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 ~~Agent or any~~ Lender at any reasonable time and from time to time upon reasonable prior notice. (e) Notwithstanding anything to the contrary contained in clause (b) above, the Term Loan Advances (including the Notes evidencing such Term Loan Advances) are registered obligations and the right, title, and interest of the Lenders and their assignees in and to such Term Loan Advances shall be transferable only upon notation of such transfer in the Register. A Note shall only evidence the Lender’s or an assignee’s right title and interest in and to the related Term Loan Advance, and in no event is any such Note to be considered a bearer instrument or obligation. This Section 8.07 shall be construed so that the Term Loan Advances are at all times maintained in “registered form” within the meaning of sections 163(f), 871(h)(2) and 881(c)(2) of the Internal Revenue Code and any related regulations (or any successor provisions of the Internal Revenue Code or such regulations). Solely for purposes of this and for tax purposes only, the Administrative Agent shall act as each Borrower’s agent for purposes of maintaining such notations of transfer in the Register. (fd) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee, together with any Note or Notes subject to such assignment, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit C hereto, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to ~~BMCA and each other Agent~~the Borrowers. ~~In the case of any assignment by a Lender, within~~ Within five Business Days after its receipt of such notice, the Borrowers, at their own expense, ~~shall, if requested by the assignee,~~ shall execute and deliver to the Administrative Agent in exchange for the surrendered Note or Notes ~~an amended and restated~~ a new Note ~~(which shall be marked “Amended and Restated”)~~ or Notes to the order of such Eligible Assignee in an amount equal to the ~~Term Loan~~ Commitment assumed by it ~~under each Facility~~ pursuant to such Assignment and Acceptance and, if ~~any~~ the assigning Lender has retained a ~~Term Loan~~ Commitment ~~hereunder under such Facility and has requested~~ hereunder, a ~~replacement Note, an amended and restated~~ new Note or Notes to the order of ~~such~~ the assigning Lender in an amount equal to the ~~Term Loan~~ Commitment retained by it hereunder. Such ~~amended and restated~~ 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 Assignment and Acceptance and shall otherwise be in substantially the form of Exhibit A hereto. (ge) Each Lender may sell participations ~~to one or more Persons (other than any Loan Party or any of its Affiliates)~~ in or to all or a portion of its rights and obligations under this Agreement (~~including~~ including, without limitation, all or a portion of its ~~Term Loan~~ Commitment or Commitments, the ~~Term Loan~~ Advances owing to it and the Note or Notes ~~(if any)~~ held by it); provided, however, that (i) such Lender’s 's obligations under this Agreement (~~including~~ including, without limitation, its ~~Term Loan~~ Commitment or Commitments) shall remain unchanged, (ii) 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 or Notes for all purposes of this Agreement, (iv) the Borrowers, the Agents and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s 's rights and obligations under this Agreement and (v) no participant under any such participation shall have any right to approve any amendment or waiver of any provision of this Agreement or any ~~Loan Document~~Note, or any consent to any departure by any ~~Loan Party~~ Borrower therefrom, except to the extent that such amendment, waiver or consent ~~requires~~ would (A) reduce the principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation or (B) postpone any date fixed for any payment of principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation. If the Administrative Agent or such Lender shall request the written consent of such participant to any of the actions set forth in this paragraph (e), and shall not receive either the consent thereto or denial thereof in writing within five Business Days of ~~all Lenders~~making such request, such participant shall be deemed to have given its consent. (hf) Any Lender may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section 8.07, disclose to the assignee or participant or proposed assignee or ~~participant~~ participant, any information relating to the Borrowers furnished to such Lender by or on behalf of the Borrowers; provided, however, 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 received by it from such ~~Lender in accordance with the terms of Section 8.09~~Lender. (ig) Notwithstanding any other provision set forth in this Agreement, any Lender may at any time create a security interest in all or any portion of its rights under this Agreement (~~including~~ including, without limitation, the ~~Term Loan~~ 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 System. (jh) ~~Notwithstanding anything to~~ The Borrowers and each Lender agree that, at the ~~contrary contained herein, any Lender that is a fund that invests in bank loans may create a security interest in all or any portion~~ request of the ~~Term Loan Advances owing~~ Administrative Agent, the Borrowers or such Lender will reexecute this Agreement to ~~it and~~ reflect the ~~Note or Notes held by it to the trustee for holders of obligations owed, or securities issued, by such fund as security for such obligations or securities, provided,~~ assignments that ~~unless and until such trustee actually becomes a Lender~~ have been effected in ~~compliance~~ accordance with ~~the other provisions of~~ this Section 8.07, (i) no such pledge shall release the pledging Lender from any of its obligations under the Loan Documents and (ii) such trustee shall not be entitled to exercise any of the rights of a Lender under the Loan Documents even though such trustee may have acquired ownership rights with respect to the pledged interest through foreclosure or otherwise. (k) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Lender”) may grant to a special purpose funding vehicle identified as such in writing from time to time by the Granting Lender to the Administrative Agent and BMCA (an “SPC”) the option to provide all or any part of any Term Loan Advance that such Granting Lender would otherwise be obligated to make pursuant to this Agreement, provided that (i) nothing herein shall constitute a commitment by any SPC to fund any Term Loan Advance, and (ii) if an SPC elects not to exercise such option or otherwise fails to make all or any part of such Term Loan Advance, the Granting Lender shall be obligated to make such Term Loan Advance pursuant to the terms hereof. The making of an Advance by an SPC hereunder shall utilize the Term Loan Commitment of the Granting Lender to the same extent, and as if, such Term Loan Advance were made by such Granting Lender. Each party hereto hereby agrees that (i) no SPC shall be liable for any indemnity or similar payment obligation under this Agreement for which a Lender would be liable, (ii) no SPC shall be entitled to the benefits of Sections 2.09 and 2.11 (or any other increased costs protection provision) and (iii) the Granting Bank shall for all purposes, including the approval of any amendment or waiver of any provision of any Loan Document, remain the Lender of record hereunder. In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior Debt of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency, or liquidation proceeding under the laws of the United States or any State thereof. Notwithstanding anything to the contrary contained in this Agreement, any SPC may (i) with notice to, but without prior consent of, BMCA and the Administrative Agent and with the payment of a processing fee of $500 and without paying any processing fee therefor, assign all or any portion of its interest in any Term Loan Advance to the Granting Lender and (ii) disclose on a confidential basis any non-public information relating to its funding of Term Loan Advance to any rating agency, commercial paper dealer or provider of any surety or guarantee or credit or liquidity enhancement to such SPC. This subsection (k) may not be amended without the prior written consent of each Granting Lender, all or any part of whose Term Loan Advances are being funded by the SPC at the time of such amendment.

Appears in 1 contract

Samples: Term Credit Agreement (General Nutrition Companies Inc)

Assignments and Participations. ~~(a)~~ Each Lender ~~may, upon at least five Business Days’ notice to such Lender and the Administrative Agent,~~ may assign to one or more Eligible Assignees all or a portion of its rights and obligations under this Agreement (~~including~~ including, without limitation, all or a portion of its ~~Term Loan Commitment~~Commitment or Commitments, the ~~Term Loan Advances~~ Loans owing to it it, and the Note or Notes held by it); provided, however, that (i) each such assignment shall be of a uniform, and not a varying, percentage of all rights and obligations under ~~this Agreement~~and in respect of the Facilities, (ii) except in the case of an assignment to a Person that, immediately prior to such assignment, was a Lender, an Affiliate of any Lender or an Approved Fund of any Lender or an assignment of all of a Lender’s rights and obligations under this Agreement, the aggregate amount of the ~~Term Loan~~ Commitments ~~or Term Loan Advances~~ being assigned to such Eligible Assignee pursuant to such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $~~5,000,000~~ 2,000,000 (or such lesser amount as shall be approved by the Administrative Agent in its sole and absolute discretion and, so long as no Default shall have occurred and be continuing at the time of effectiveness of such assignment, ~~BMCA~~the Borrower Representative), (iii) each such assignment shall be to an Eligible Assignee, (iv) ~~except in the case of an assignment by a Person that, immediately prior to such assignment, was a Lender, to one of its Affiliates,~~ no such assignments shall be permitted without US 7362483v.35 the written consent of (A) if the Administrative Agent ~~and~~is an Affiliate of the initial Term Loan A Lender, ~~so long as no Default shall have occurred and be continuing at~~ the ~~time~~ Administrative Agent or (B) if the Administrative Agent is not an Affiliate of ~~effectiveness of such assignment~~the initial Term Loan A Lender, ~~BMCA (~~the Required Lenders, in each case, ~~which consents shall not be unreasonably withheld~~in its (or their) sole and absolute discretion, and (v) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together with any Note or Notes ~~subject to such assignment and a processing and recordation fee of $3,500.~~ (bif any) Upon such execution, delivery, acceptance and recording, from and after the effective date specified in such 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, have the rights and obligations of a Lender hereunder and (ii) the Lender assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (other than its rights under Sections 2.09, 2.11 and 8.04 to the extent any claim thereunder relates to an event arising prior to such assignment) and be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all of the remaining portion of an assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto). (c) By executing and delivering an Assignment and Acceptance, each Lender assignor thereunder and each assignee thereunder confirm to and agree with each other and the other parties thereto and hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with any Loan Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value of, or the perfection or priority of any lien or security interest created or purported to be created under or in connection with, any Loan Document or any other instrument or document furnished pursuant thereto; (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party or the performance or observance by any Loan Party of any of its obligations under any Loan Document or any other instrument or document furnished pursuant thereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 4.01 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) such assignee will, independently and without reliance upon any Agent, such assigning Lender or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) such assignee confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes each Agent to take such action as agent on its behalf and to exercise such powers and discretion under the Loan Documents as are delegated to such Agent by the terms hereof and thereof, together with such powers and discretion as are reasonably incidental thereto; and (vii) such assignee agrees that it will perform in accordance with their terms all of the obligations that by the terms of this Agreement are required to be performed by it as a Lender. (d) The Administrative Agent acting for this purpose (but only for this purpose) as the agent of the Borrowers, shall maintain at its address referred to in Section 8.02 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 Lenders and the Term Loan Commitment of, and principal amount of the Term Loan Advances 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 Borrowers, the Agents and the Lenders shall treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrowers or any Agent or any Lender at any reasonable time and from time to time upon reasonable prior notice. (e) Notwithstanding anything to the contrary contained in clause (b) above, the Term Loan Advances (including the Notes evidencing such Term Loan Advances) are registered obligations and the right, title, and interest of the Lenders and their assignees in and to such Term Loan Advances shall be transferable only upon notation of such transfer in the Register. A Note shall only evidence the Lender’s or an assignee’s right title and interest in and to the related Term Loan Advance, and in no event is any such Note to be considered a bearer instrument or obligation. This Section 8.07 shall be construed so that the Term Loan Advances are at all times maintained in “registered form” within the meaning of sections 163(f), 871(h)(2) and 881(c)(2) of the Internal Revenue Code and any related regulations (or any successor provisions of the Internal Revenue Code or such regulations). Solely for purposes of this and for tax purposes only, the Administrative Agent shall act as each Borrower’s agent for purposes of maintaining such notations of transfer in the Register. (f) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee, together with any Note or Notes subject to such assignment, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit C hereto, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to BMCA and each other Agent. In the case of any assignment by a Lender, within five Business Days after its receipt of such notice, the Borrowers, at their own expense, shall, if requested by the assignee, execute and deliver to the Administrative Agent in exchange for the surrendered Note or Notes an amended and restated Note (which shall be marked “Amended and Restated”) to the order of such Eligible Assignee in an amount equal to the Term Loan Commitment assumed by it under each Facility pursuant to such Assignment and Acceptance and, if any assigning Lender has retained a Term Loan Commitment hereunder under such Facility and has requested a replacement Note, an amended and restated Note to the order of such assigning Lender in an amount equal to the Term Loan Commitment retained by it hereunder. Such amended and restated 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 Assignment and Acceptance and shall otherwise be in substantially the form of Exhibit A hereto. (g) Each Lender may sell participations to one or more Persons (other than any Loan Party or any of its Affiliates) in or to all or a portion of its rights and obligations under this Agreement (including all or a portion of its Term Loan Commitments, the Term Loan Advances owing to it and the Note or Notes (if any) held by it); provided, however, that (i) such Lender’s obligations under this Agreement (including its Term Loan Commitments) shall remain unchanged, (ii) 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, (iv) the Borrowers, the Agents and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and (v) no participant under any such participation shall have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent requires the consent of all Lenders. (h) Any Lender may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section 8.07, disclose to the assignee or participant or proposed assignee or participant any information relating to the Borrowers furnished to such Lender by or on behalf of the Borrowers; provided, however, 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 received by it from such Lender in accordance with the terms of Section 8.09. (i) Notwithstanding any other provision set forth in this Agreement, any Lender may at any time create a security interest in all or any portion of its rights under this Agreement (including the Term Loan 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 System. (j) Notwithstanding anything to the contrary contained herein, any Lender that is a fund that invests in bank loans may create a security interest in all or any portion of the Term Loan Advances owing to it and the Note or Notes held by it to the trustee for holders of obligations owed, or securities issued, by such fund as security for such obligations or securities, provided, that unless and until such trustee actually becomes a Lender in compliance with the other provisions of this Section 8.07, (i) no such pledge shall release the pledging Lender from any of its obligations under the Loan Documents and (ii) such trustee shall not be entitled to exercise any of the rights of a Lender under the Loan Documents even though such trustee may have acquired ownership rights with respect to the pledged interest through foreclosure or otherwise. (k) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Lender”) may grant to a special purpose funding vehicle identified as such in writing from time to time by the Granting Lender to the Administrative Agent and BMCA (an “SPC”) the option to provide all or any part of any Term Loan Advance that such Granting Lender would otherwise be obligated to make pursuant to this Agreement, provided that (i) nothing herein shall constitute a commitment by any SPC to fund any Term Loan Advance, and (ii) if an SPC elects not to exercise such option or otherwise fails to make all or any part of such Term Loan Advance, the Granting Lender shall be obligated to make such Term Loan Advance pursuant to the terms hereof. The making of an Advance by an SPC hereunder shall utilize the Term Loan Commitment of the Granting Lender to the same extent, and as if, such Term Loan Advance were made by such Granting Lender. Each party hereto hereby agrees that (i) no SPC shall be liable for any indemnity or similar payment obligation under this Agreement for which a Lender would be liable, (ii) no SPC shall be entitled to the benefits of Sections 2.09 and 2.11 (or any other increased costs protection provision) and (iii) the Granting Bank shall for all purposes, including the approval of any amendment or waiver of any provision of any Loan Document, remain the Lender of record hereunder. In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior Debt of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency, or liquidation proceeding under the laws of the United States or any State thereof. Notwithstanding anything to the contrary contained in this Agreement, any SPC may (i) with notice to, but without prior consent of, BMCA and the Administrative Agent and with the payment of a processing fee of $500 and without paying any processing fee therefor, assign all or any portion of its interest in any Term Loan Advance to the Granting Lender and (ii) disclose on a confidential basis any non-public information relating to its funding of Term Loan Advance to any rating agency, commercial paper dealer or provider of any surety or guarantee or credit or liquidity enhancement to such SPC. This subsection (k) may not be amended without the prior written consent of each Granting Lender, all or any part of whose Term Loan Advances are being funded by the SPC at the time of such amendment.

Appears in 1 contract

Samples: Credit Agreement (Kosmos Energy Ltd.)

Assignments and Participations. (a) No Lender may assign or otherwise transfer any of its rights or obligations hereunder except (i) to an assignee in accordance with the provisions of Section 8.07(b), (ii) by way of participation in accordance with the provisions of Section 8.07(f), or (iii) by way of pledge or assignment of a security interest subject to the restrictions of Section 8.07(h) (and any other attempted assignment or transfer by any Lender shall be null and void). Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby, participants to the extent provided in Section 8.07(f) and, to the extent expressly contemplated hereby, the respective officers, directors, employees, agents and advisors of each of the Agent, the Issuing Banks and the Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement. (b) Each Lender ~~may~~may and, if demanded by the Borrower in accordance with Section 2.20, upon at least five Business Days’ notice to such Lender and the ~~Administrative~~ Agent, will assign to one or more ~~Eligible Assignees~~ Persons all or a portion of its rights and obligations under this Agreement (~~including~~ including, without limitation, all or a portion of its ~~Term Loan~~ Revolving Credit Commitment, the ~~Term Loan~~ Revolving Credit Advances owing to it it, its participations in Letters of Credit and the Revolving Credit Note or Revolving Credit Notes held by it); provided, however, that (i) each such assignment shall be of a ~~uniform~~constant, and not a varying, percentage of all rights and obligations under this Agreement, (ii) except in the case of an assignment to a Person that, immediately prior to such assignment, was a ~~Lender, an Affiliate of any Lender or an Approved Fund of any~~ Lender or an assignment of all of a Lender’s rights and obligations under this Agreement, the ~~aggregate~~ amount of the ~~Term Loan Commitments or Term Loan Advances~~ Revolving Credit Commitment of the assigning Lender being assigned ~~to such Eligible Assignee~~ pursuant to each such assignment (determined as of the date of the Assignment and ~~Acceptance~~ Assumption with respect to such assignment) shall in no event be less than $~~5,000,000 (~~10,000,000 or ~~such lesser amount as shall be approved by~~ an integral multiple of $1,000,000 in excess thereof, unless the ~~Administrative~~ Borrower and the Agent ~~and, so long as no Default shall have occurred and be continuing at the time of effectiveness of such assignment, BMCA)~~otherwise agree, (iii) each such assignment shall be to an Eligible Assignee, (iv) ~~except~~ each such assignment made as a result of a demand by the Borrower in accordance with Section 2.20 shall be arranged by the ~~case of~~ Borrower after consultation with the Agent and shall be either an assignment of all of the rights and obligations of the assigning Lender under this Agreement or an assignment of a portion of such rights and obligations made concurrently with another such assignment or other such assignments that together cover all of the rights and obligations of the assigning Lender under this Agreement, (v) no Lender shall be obligated to make any such assignment as a result of a demand by ~~a Person that, immediately prior~~ the Borrower in accordance with Section 2.20 unless and until such Lender shall have received one or more payments from either the Borrower or one or more Eligible Assignees in an aggregate amount at least equal to the aggregate outstanding principal amount of the Revolving Credit Advances owing to such ~~assignment, was a~~ Lender, together with accrued interest thereon to ~~one~~ the date of ~~its Affiliates~~payment of such principal amount and all other amounts payable to such Lender under this Agreement, ~~no such assignments shall be permitted without~~ (vi) the consent of the ~~Administrative Agent and, so long as no Default shall have occurred and be continuing at the time of effectiveness of~~ Issuing Banks (such ~~assignment, BMCA (in each case, which consents shall~~ consent not to be unreasonably ~~withheld~~withheld or delayed) ~~and~~ shall be required for any assignment that increases the obligation of the assignee to participate in exposure under one or more Letters of Credit (vwhether or not then outstanding), (vii) the parties to each such assignment shall execute and deliver to the ~~Administrative~~ Agent, for its acceptance and recording in the Register, an Assignment and ~~Acceptance~~Assumption, together with an Administrative Questionnaire from any assignee that is not a Lender, and any Revolving Credit Note ~~or Notes~~ subject to such assignment and a processing and recordation fee of $~~3,500.~~ 3,500 payable by the assignor or the Eligible Assignee, as applicable, provided, however, that in the case of each assignment made as a result of a demand by the Borrower, such recordation fee shall be payable by the Borrower except that no such recordation fee shall be payable in the case of an assignment made at the request of the Borrower to an Eligible Assignee that is an existing Lender, and (bviii) any Lender may, without the approval of the Borrower and the Agent, assign all or a portion of its rights to any of its Affiliates. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in ~~such~~ each Assignment and ~~Acceptance~~Assumption, (ix) 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~~Assumption, have the rights and obligations of a Lender hereunder and (iiy) the Lender assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and ~~Acceptance~~Assumption, relinquish its rights (other than its rights under ~~Sections 2.09~~Section 2.11, ~~2.11~~ 2.14 and 8.04 to the extent any claim thereunder relates to an event arising prior such assignment) and be released from its obligations (other than its obligations under Section 8.05 to the extent any claim thereunder relates to an event arising prior to such assignment) ~~and be released from its obligations~~ under this Agreement (and, in the case of an Assignment and ~~Acceptance~~ Assumption covering all of or the remaining portion of an assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto). (c) By executing and delivering an Assignment and ~~Acceptance~~Assumption, ~~each~~ the Lender assignor thereunder and ~~each~~ the assignee thereunder confirm to and agree with each other and the other parties ~~thereto and~~ hereto as follows: (i) other than as provided in such Assignment and ~~Acceptance~~Assumption, 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 ~~any Loan Document~~ this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of, or the perfection or priority of any lien or security interest created or purported to be created under or in connection with, ~~any Loan Document~~ this Agreement or any other instrument or document furnished pursuant ~~thereto~~hereto; (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of ~~any Loan Party~~ the Borrower or the performance or observance by ~~any Loan Party~~ the Borrower of any of its obligations under ~~any Loan Document~~ this Agreement or any other instrument or document furnished pursuant ~~thereto~~hereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 4.01 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and ~~Acceptance~~Assumption; (iv) such assignee will, independently and without reliance upon ~~any~~ the Agent, such assigning Lender or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) such assignee confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes ~~each~~ the Agent to take such action as agent on its behalf and to exercise such powers and discretion under ~~the Loan Documents~~ this Agreement as are delegated to ~~such~~ the Agent by the terms ~~hereof and thereof~~hereof, together with such powers and discretion as are reasonably incidental thereto; and (vii) such assignee agrees that it will perform in accordance with their terms all of the obligations that by the terms of this Agreement are required to be performed by it as a Lender, including providing such documentation as is required under Section 2.14(f). (d) Upon its receipt of an Assignment and Assumption executed by an assigning Lender and an assignee representing that it is an Eligible Assignee, together with any Revolving Credit Notes subject to such assignment, the Agent shall, if such Assignment and Assumption has been completed and is in substantially the form of Exhibit C hereto, (i) accept such Assignment and Assumption, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the Borrower. (e) The ~~Administrative~~ Agent ~~acting for this purpose (but only for this purpose) as the agent of the Borrowers,~~ shall maintain at its address referred to in Section 8.02 a copy of each Assumption Agreement and each Assignment and ~~Acceptance~~ Assumption delivered to and accepted by it and a register for the recordation of the names and addresses of the Lenders and the ~~Term Loan~~ Commitment of, and principal amount of the ~~Term Loan~~ Revolving Credit 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 ~~Borrowers~~Borrower, the ~~Agents~~ Agent and the Lenders shall treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the ~~Borrowers or any Agent~~ Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice. (e) Notwithstanding anything to the contrary contained in clause (b) above, the Term Loan Advances (including the Notes evidencing such Term Loan Advances) are registered obligations and the right, title, and interest of the Lenders and their assignees in and to such Term Loan Advances shall be transferable only upon notation of such transfer in the Register. A Note shall only evidence the Lender’s or an assignee’s right title and interest in and to the related Term Loan Advance, and in no event is any such Note to be considered a bearer instrument or obligation. This Section 8.07 shall be construed so that the Term Loan Advances are at all times maintained in “registered form” within the meaning of sections 163(f), 871(h)(2) and 881(c)(2) of the Internal Revenue Code and any related regulations (or any successor provisions of the Internal Revenue Code or such regulations). Solely for purposes of this and for tax purposes only, the Administrative Agent shall act as each Borrower’s agent for purposes of maintaining such notations of transfer in the Register. (f) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee, together with any Note or Notes subject to such assignment, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit C hereto, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to BMCA and each other Agent. In the case of any assignment by a Lender, within five Business Days after its receipt of such notice, the Borrowers, at their own expense, shall, if requested by the assignee, execute and deliver to the Administrative Agent in exchange for the surrendered Note or Notes an amended and restated Note (which shall be marked “Amended and Restated”) to the order of such Eligible Assignee in an amount equal to the Term Loan Commitment assumed by it under each Facility pursuant to such Assignment and Acceptance and, if any assigning Lender has retained a Term Loan Commitment hereunder under such Facility and has requested a replacement Note, an amended and restated Note to the order of such assigning Lender in an amount equal to the Term Loan Commitment retained by it hereunder. Such amended and restated 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 Assignment and Acceptance and shall otherwise be in substantially the form of Exhibit A hereto. (g) Each Lender may sell participations to one or more ~~Persons~~ banks or other entities (other than ~~any Loan Party~~ the Borrower or any of its Affiliates) in or to all or a portion of its rights and obligations under this Agreement (~~including~~ including, without limitation, all or a portion of its ~~Term Loan Commitments~~Commitment, the ~~Term Loan~~ Revolving Credit Advances owing to it and ~~the~~ any Revolving Credit Note or Revolving Credit Notes ~~(if any)~~ held by it); provided, however, that (i) such Lender’s obligations under this Agreement (~~including~~ including, without limitation, its ~~Term Loan Commitments~~Commitment to the Borrower hereunder) shall remain unchanged, (ii) 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 Revolving Credit Note for all purposes of this Agreement, (iv) the ~~Borrowers~~Borrower, the ~~Agents~~ Agent, the Issuing Banks and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and (v) no participant under any such participation shall have any right to approve any amendment or waiver of any provision of this Agreement or any ~~Loan Document~~Revolving Credit Note, or any consent to any departure by ~~any Loan Party~~ the Borrower therefrom, except to the extent that such amendment, waiver or consent ~~requires~~ would reduce the ~~consent~~ principal of, or interest on, the Revolving Credit Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, or postpone any date fixed for any payment of ~~all Lenders~~principal of, or interest on, the Revolving Credit Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation. (hg) Any Lender may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section 8.07, disclose to the assignee or participant or proposed assignee or ~~participant~~ participant, any information relating to the ~~Borrowers~~ Borrower furnished to such Lender by or on behalf of the ~~Borrowers~~Borrower; ~~provided, however,~~ 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 Borrower received by it from such Lender and the Borrower shall be a named third party beneficiary under such confidentiality agreement executed by such assignee or participant or proposed assignee or participant. (h) Each Lender that sells a participation, acting solely for this purpose as a non-fiduciary agent of the Borrower, shall maintain a register on which it enters the name and address of each participant and the principal amounts (and stated interest) of each participant’s interest in ~~accordance with~~ the Revolving Credit Notes or other obligations under this Agreement (the “Participant Register”), provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to the Borrower or any other Person (including the identity of any Participant or any information relating to a Participant’s interest in any Revolving Credit Advance or its other obligations under this Agreement or any Revolving Credit Note) except to the extent that such disclosure is necessary to establish that the Revolving Credit Advances or such other obligations are in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive, and such Lender, Borrower and the Agent shall treat each person whose name is recorded in the Participant Register pursuant to the terms hereof as the owner of ~~Section 8.09~~such participation for all purposes of this Agreement, notwithstanding notice to the contrary. (i) Notwithstanding any other provision set forth in this Agreement, any Lender may at any time create a security interest in all or any portion of its rights under this Agreement (~~including~~ including, without limitation, the ~~Term Loan~~ Revolving Credit Advances owing to it and ~~the~~ any Revolving Credit Note or Revolving Credit 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 System. (j) Notwithstanding anything to the contrary contained herein, any Lender that is a fund that invests in bank loans may create a security interest in all or any portion of the Term Loan Advances owing to it and the Note or Notes held by it to the trustee for holders of obligations owed, or securities issued, by such fund as security for such obligations or securities, provided, that unless and until such trustee actually becomes a Lender in compliance with the other provisions of this Section 8.07, (i) no such pledge shall release the pledging Lender from any of its obligations under the Loan Documents and (ii) such trustee shall not be entitled to exercise any of the rights of a Lender under the Loan Documents even though such trustee may have acquired ownership rights with respect to the pledged interest through foreclosure or otherwise. (k) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Lender”) may grant to a special purpose funding vehicle identified as such in writing from time to time by the Granting Lender to the Administrative Agent and BMCA (an “SPC”) the option to provide all or any part of any Term Loan Advance that such Granting Lender would otherwise be obligated to make pursuant to this Agreement, provided that (i) nothing herein shall constitute a commitment by any SPC to fund any Term Loan Advance, and (ii) if an SPC elects not to exercise such option or otherwise fails to make all or any part of such Term Loan Advance, the Granting Lender shall be obligated to make such Term Loan Advance pursuant to the terms hereof. The making of an Advance by an SPC hereunder shall utilize the Term Loan Commitment of the Granting Lender to the same extent, and as if, such Term Loan Advance were made by such Granting Lender. Each party hereto hereby agrees that (i) no SPC shall be liable for any indemnity or similar payment obligation under this Agreement for which a Lender would be liable, (ii) no SPC shall be entitled to the benefits of Sections 2.09 and 2.11 (or any other increased costs protection provision) and (iii) the Granting Bank shall for all purposes, including the approval of any amendment or waiver of any provision of any Loan Document, remain the Lender of record hereunder. In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other ~~senior Debt of any SPC, it will not institute against, or join any other person in instituting against,~~ central bank having jurisdiction over such SPC any bankruptcy, reorganization, arrangement, insolvency, or liquidation proceeding under the laws of the United States or any State thereof. Notwithstanding anything to the contrary contained in this Agreement, any SPC may (i) with notice to, but without prior consent of, BMCA and the Administrative Agent and with the payment of a processing fee of $500 and without paying any processing fee therefor, assign all or any portion of its interest in any Term Loan Advance to the Granting Lender and (ii) disclose on a confidential basis any non-public information relating to its funding of Term Loan Advance to any rating agency, commercial paper dealer or provider of any surety or guarantee or credit or liquidity enhancement to such SPC. This subsection (k) may not be amended without the prior written consent of each Granting Lender~~, all or any part of whose Term Loan Advances are being funded by the SPC at the time of such amendment~~.

Appears in 1 contract

Samples: Credit Agreement (Travelers Companies, Inc.)

Assignments and Participations. (a) Each Lender may, ~~upon at least five Business Days’ notice to such Lender and~~ with the consent of the Administrative Agent, and, so long as no Event of Default has occurred and is continuing, with the consent of the Appropriate Borrower (in each case, such consent not to be unreasonably withheld), assign to one or more Eligible Assignees all or a portion of its rights and obligations under this Agreement (~~including~~ including, without limitation, all or a portion of its ~~Term Loan Commitment~~Commitment or Commitments, the ~~Term Loan~~ Advances owing to it and the Note or Notes held by it); ~~provided~~PROVIDED, however, that no consent by either Borrower or the Administrative Agent shall be required for an assignment to any Person who is an Affiliate of such Lender, and PROVIDED, FURTHER, that (i) each such assignment shall be of a uniform, and not a varying, percentage of all rights and obligations under ~~this Agreement~~and in respect of one or more Facilities, (ii) except in the case of an assignment to a Person that, immediately prior to such assignment, was a ~~Lender, an Affiliate of any Lender or an Approved Fund of any~~ Lender or an assignment of all of a Lender’s 's rights and obligations under this ~~Agreement~~Agreement or all of a Lender's rights and obligations with respect to its Term B Commitment, the ~~aggregate~~ amount of the ~~Term Loan Commitments or Term Loan Advances~~ Commitment of the assigning Lender being assigned ~~to such Eligible Assignee~~ pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $5,000,000 (or ~~such lesser amount as shall be approved by the Administrative Agent and, so long as no Default shall have occurred and be continuing at the time~~ integral multiples of ~~effectiveness of such assignment, BMCA~~$1,000,000 in excess thereof), (iii) each such assignment shall be to an Eligible Assignee, (iv) except in the case of an assignment by a Person that, immediately prior to such assignment, was a Lender, to one of its Affiliates, no such assignments shall be permitted without the consent of the Administrative Agent and, so long as no Default shall have occurred and be continuing at the time of effectiveness of such assignment, BMCA (in each case, which consents shall not be unreasonably withheld) and (vvi) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together with any Note or Notes subject to such assignment ~~and~~ and, other than in the case of an assignment to an Affiliate of such Lender, a processing and recordation fee of $~~3,500.~~3,000; PROVIDED, however, that the foregoing processing and recordation fee for any assignment made pursuant to this Section 9.07 on or prior to March 31, 1998 which is, in the opinion of the Administrative Agent, associated with the original syndication of the Facilities, will be waived. 104 (b) Upon such execution, delivery, acceptance and recording, from and after the effective date specified in such Assignment and Acceptance, (ix) the assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, have the rights and obligations of a Lender or Issuing Bank, as the case may be, hereunder and (iiy) the Lender or Issuing Bank assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights ~~(other than its rights under Sections 2.09, 2.11 and 8.04 to the extent any claim thereunder relates to an event arising prior to such assignment)~~ and be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all of or the remaining portion of an assigning Lender’s 's or Issuing Bank's rights and obligations under this Agreement, such Lender or Issuing Bank shall cease to be a party hereto). (c) By executing and delivering an Assignment and Acceptance, ~~each~~ the Lender Party assignor thereunder and ~~each~~ the assignee thereunder confirm to and agree with each other and the other parties ~~thereto and~~ hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender Party makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or any other Loan Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value of, or the perfection or priority of any lien or security interest created or purported to be created under or in connection with, this Agreement or any other Loan Document or any other instrument or document furnished pursuant hereto or thereto; (ii) such assigning Lender Party makes no representation or warranty and assumes no responsibility with respect to the financial condition of either Borrower or any other Loan Party or the performance or observance by any Loan Party of any of its obligations under any Loan Document or any other instrument or document furnished pursuant thereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 4.01 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) such assignee will, independently and without reliance upon ~~any~~ the Administrative Agent, such assigning Lender Party or any other Lender Party and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) such assignee confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes ~~each~~ the Administrative Agent to take such action as agent on its behalf and to exercise such powers and discretion under the Loan Documents as are delegated to ~~such~~ the Administrative Agent by the terms ~~hereof and thereof~~hereof, together with such powers and discretion as are reasonably incidental thereto; and (vii) such assignee agrees that it will perform in accordance with their terms all of the obligations ~~that~~ which by the terms of this Agreement are required to be performed by it as a ~~Lender~~Lender or Issuing Bank, as the case may be. (d) The Administrative ~~Agent~~ Agent, acting for this purpose (but only for this purpose) as the agent of the Borrowers, shall maintain at its address referred to in Section ~~8.02~~ 9.02 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 ~~Lenders~~ Lender Parties and the ~~Term Loan~~ Commitment under each Facility of, and principal amount of the ~~Term Loan~~ Advances owing under each Facility to, each Lender Party from time to time (the ~~“Register”~~"REGISTER"). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrowers, the ~~Agents~~ Administrative Agent and the ~~Lenders~~ Lender Parties shall treat each Person whose name is recorded in the Register as a Lender Party hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrowers or any Agent or any Lender at any reasonable time and from time to time upon reasonable prior notice. (e) Notwithstanding anything to the contrary contained in clause (b) above, the Term Loan Advances (including the Notes evidencing such Term Loan Advances) are registered obligations and the right, title, and interest of the Lenders and their assignees in and to such Term Loan Advances shall be transferable only upon notation of such transfer in the Register. A Note shall only evidence the Lender’s or an assignee’s right title and interest in and to the related Term Loan Advance, and in no event is any such Note to be considered a bearer instrument or obligation. This Section 8.07 shall be construed so that the Term Loan Advances are at all times maintained in “registered form” within the meaning of sections 163(f), 871(h)(2) and 881(c)(2) of the Internal Revenue Code and any related regulations (or any successor provisions of the Internal Revenue Code or such regulations). Solely for purposes of this and for tax purposes only, the Administrative Agent shall act as each Borrower’s agent for purposes of maintaining such notations of transfer in the Register. (f) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee, together with any Note or Notes subject to such assignment, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit C hereto, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to BMCA and each other Agent. In the case of any assignment by a Lender, within five Business Days after its receipt of such notice, the Borrowers, at their own expense, shall, if requested by the assignee, execute and deliver to the Administrative Agent in exchange for the surrendered Note or Notes an amended and restated Note (which shall be marked “Amended and Restated”) to the order of such Eligible Assignee in an amount equal to the Term Loan Commitment assumed by it under each Facility pursuant to such Assignment and Acceptance and, if any assigning Lender has retained a Term Loan Commitment hereunder under such Facility and has requested a replacement Note, an amended and restated Note to the order of such assigning Lender in an amount equal to the Term Loan Commitment retained by it hereunder. Such amended and restated 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 Assignment and Acceptance and shall otherwise be in substantially the form of Exhibit A hereto. (g) Each Lender may sell participations to one or more Persons (other than any Loan Party or any of its Affiliates) in or to all or a portion of its rights and obligations under this Agreement (including all or a portion of its Term Loan Commitments, the Term Loan Advances owing to it and the Note or Notes (if any) held by it); provided, however, that (i) such Lender’s obligations under this Agreement (including its Term Loan Commitments) shall remain unchanged, (ii) 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, (iv) the Borrowers, the Agents and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and (v) no participant under any such participation shall have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent requires the consent of all Lenders. (h) Any Lender may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section 8.07, disclose to the assignee or participant or proposed assignee or participant any information relating to the Borrowers furnished to such Lender by or on behalf of the Borrowers; provided, however, 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 received by it from such Lender in accordance with the terms of Section 8.09. (i) Notwithstanding any other provision set forth in this Agreement, any Lender may at any time create a security interest in all or any portion of its rights under this Agreement (including the Term Loan 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 System. (j) Notwithstanding anything to the contrary contained herein, any Lender that is a fund that invests in bank loans may create a security interest in all or any portion of the Term Loan Advances owing to it and the Note or Notes held by it to the trustee for holders of obligations owed, or securities issued, by such fund as security for such obligations or securities, provided, that unless and until such trustee actually becomes a Lender in compliance with the other provisions of this Section 8.07, (i) no such pledge shall release the pledging Lender from any of its obligations under the Loan Documents and (ii) such trustee shall not be entitled to exercise any of the rights of a Lender under the Loan Documents even though such trustee may have acquired ownership rights with respect to the pledged interest through foreclosure or otherwise. (k) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Lender”) may grant to a special purpose funding vehicle identified as such in writing from time to time by the Granting Lender to the Administrative Agent and BMCA (an “SPC”) the option to provide all or any part of any Term Loan Advance that such Granting Lender would otherwise be obligated to make pursuant to this Agreement, provided that (i) nothing herein shall constitute a commitment by any SPC to fund any Term Loan Advance, and (ii) if an SPC elects not to exercise such option or otherwise fails to make all or any part of such Term Loan Advance, the Granting Lender shall be obligated to make such Term Loan Advance pursuant to the terms hereof. The making of an Advance by an SPC hereunder shall utilize the Term Loan Commitment of the Granting Lender to the same extent, and as if, such Term Loan Advance were made by such Granting Lender. Each party hereto hereby agrees that (i) no SPC shall be liable for any indemnity or similar payment obligation under this Agreement for which a Lender would be liable, (ii) no SPC shall be entitled to the benefits of Sections 2.09 and 2.11 (or any other increased costs protection provision) and (iii) the Granting Bank shall for all purposes, including the approval of any amendment or waiver of any provision of any Loan Document, remain the Lender of record hereunder. In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior Debt of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency, or liquidation proceeding under the laws of the United States or any State thereof. Notwithstanding anything to the contrary contained in this Agreement, any SPC may (i) with notice to, but without prior consent of, BMCA and the Administrative Agent and with the payment of a processing fee of $500 and without paying any processing fee therefor, assign all or any portion of its interest in any Term Loan Advance to the Granting Lender and (ii) disclose on a confidential basis any non-public information relating to its funding of Term Loan Advance to any rating agency, commercial paper dealer or provider of any surety or guarantee or credit or liquidity enhancement to such SPC. This subsection (k) may not be amended without the prior written consent of each Granting Lender, all or any part of whose Term Loan Advances are being funded by the SPC at the time of such amendment.105

Appears in 1 contract

Samples: Credit Agreement (Accuride Corp)

Assignments and Participations. ~~(a)~~ Each Lender ~~may, upon at least five Business Days’ notice to such Lender and the Administrative Agent,~~ may assign to one or more Eligible Assignees all or a portion of its rights and obligations under this Agreement (~~including~~ including, without limitation, all or a portion of its ~~Term Loan Commitment~~Commitment or Commitments, the ~~Term Loan~~ Advances owing to it and the Note or Notes held by it); provided, however, that (i) each such assignment shall be of a uniform, and not a varying, percentage of all rights and obligations under ~~this Agreement~~and in respect of any Facility, (ii) except in the case of an assignment to a Person that, immediately prior to such ~~assignment,~~ assignment was a ~~Lender,~~ Lender or an Affiliate of ~~any Lender or an Approved Fund of any~~ a Lender or an assignment of all of a Lender’s 's rights and obligations under this Agreement, the ~~aggregate~~ amount of the ~~Term Loan Commitments or Term Loan Advances~~ Commitment of the assigning Lender being assigned ~~to such Eligible Assignee~~ pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less ~~than~~ than, with respect to the Working Capital Facility, the lesser of 5% of the Working Capital Facility or $5,000,000 ~~(or such lesser amount as shall be approved by the Administrative Agent~~ and, ~~so long as no Default shall have occurred and be continuing at~~ with respect to the ~~time of effectiveness of such assignment~~Term Facility, ~~BMCA)~~$5,000,000, (iii) each such assignment shall be to an Eligible Assignee, (iv) ~~except in the case of an assignment by a Person that, immediately prior to such assignment, was a Lender, to one of its Affiliates,~~ no such assignments shall be permitted without the consent of the ~~Administrative~~ Syndication Agent ~~and~~until June 30, ~~so long as no Default~~ 1998 or, if earlier, the date the Syndication Agent shall have ~~occurred and be continuing at~~ notified the ~~time~~ Lender Parties that syndication of ~~effectiveness of such assignment~~the Commitments hereunder has been completed, ~~BMCA (in each case, which consents shall not be unreasonably withheld)~~ and (v) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together with any Note or Notes subject to such assignment and a processing and recordation fee of $~~3,500~~2,000. (b) Upon such execution, delivery, acceptance and recording, from and after the effective date specified in such 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, have the rights and obligations of a Lender hereunder and (ii) the Lender assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (other than its rights under Sections 2.09, 2.11 and 8.04 to the extent any claim thereunder relates to an event arising prior to such assignment) and be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all of the remaining portion of an assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto). (c) By executing and delivering an Assignment and Acceptance, each Lender assignor thereunder and each assignee thereunder confirm to and agree with each other and the other parties thereto and hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with any Loan Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value of, or the perfection or priority of any lien or security interest created or purported to be created under or in connection with, any Loan Document or any other instrument or document furnished pursuant thereto; (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party or the performance or observance by any Loan Party of any of its obligations under any Loan Document or any other instrument or document furnished pursuant thereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 4.01 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) such assignee will, independently and without reliance upon any Agent, such assigning Lender or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) such assignee confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes each Agent to take such action as agent on its behalf and to exercise such powers and discretion under the Loan Documents as are delegated to such Agent by the terms hereof and thereof, together with such powers and discretion as are reasonably incidental thereto; and (vii) such assignee agrees that it will perform in accordance with their terms all of the obligations that by the terms of this Agreement are required to be performed by it as a Lender. (d) The Administrative Agent acting for this purpose (but only for this purpose) as the agent of the Borrowers, shall maintain at its address referred to in Section 8.02 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 Lenders and the Term Loan Commitment of, and principal amount of the Term Loan Advances 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 Borrowers, the Agents and the Lenders shall treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrowers or any Agent or any Lender at any reasonable time and from time to time upon reasonable prior notice. (e) Notwithstanding anything to the contrary contained in clause (b) above, the Term Loan Advances (including the Notes evidencing such Term Loan Advances) are registered obligations and the right, title, and interest of the Lenders and their assignees in and to such Term Loan Advances shall be transferable only upon notation of such transfer in the Register. A Note shall only evidence the Lender’s or an assignee’s right title and interest in and to the related Term Loan Advance, and in no event is any such Note to be considered a bearer instrument or obligation. This Section 8.07 shall be construed so that the Term Loan Advances are at all times maintained in “registered form” within the meaning of sections 163(f), 871(h)(2) and 881(c)(2) of the Internal Revenue Code and any related regulations (or any successor provisions of the Internal Revenue Code or such regulations). Solely for purposes of this and for tax purposes only, the Administrative Agent shall act as each Borrower’s agent for purposes of maintaining such notations of transfer in the Register. (f) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee, together with any Note or Notes subject to such assignment, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit C hereto, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to BMCA and each other Agent. In the case of any assignment by a Lender, within five Business Days after its receipt of such notice, the Borrowers, at their own expense, shall, if requested by the assignee, execute and deliver to the Administrative Agent in exchange for the surrendered Note or Notes an amended and restated Note (which shall be marked “Amended and Restated”) to the order of such Eligible Assignee in an amount equal to the Term Loan Commitment assumed by it under each Facility pursuant to such Assignment and Acceptance and, if any assigning Lender has retained a Term Loan Commitment hereunder under such Facility and has requested a replacement Note, an amended and restated Note to the order of such assigning Lender in an amount equal to the Term Loan Commitment retained by it hereunder. Such amended and restated 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 Assignment and Acceptance and shall otherwise be in substantially the form of Exhibit A hereto. (g) Each Lender may sell participations to one or more Persons (other than any Loan Party or any of its Affiliates) in or to all or a portion of its rights and obligations under this Agreement (including all or a portion of its Term Loan Commitments, the Term Loan Advances owing to it and the Note or Notes (if any) held by it); provided, however, that (i) such Lender’s obligations under this Agreement (including its Term Loan Commitments) shall remain unchanged, (ii) 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, (iv) the Borrowers, the Agents and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and (v) no participant under any such participation shall have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent requires the consent of all Lenders. (h) Any Lender may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section 8.07, disclose to the assignee or participant or proposed assignee or participant any information relating to the Borrowers furnished to such Lender by or on behalf of the Borrowers; provided, however, 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 received by it from such Lender in accordance with the terms of Section 8.09. (i) Notwithstanding any other provision set forth in this Agreement, any Lender may at any time create a security interest in all or any portion of its rights under this Agreement (including the Term Loan 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 System. (j) Notwithstanding anything to the contrary contained herein, any Lender that is a fund that invests in bank loans may create a security interest in all or any portion of the Term Loan Advances owing to it and the Note or Notes held by it to the trustee for holders of obligations owed, or securities issued, by such fund as security for such obligations or securities, provided, that unless and until such trustee actually becomes a Lender in compliance with the other provisions of this Section 8.07, (i) no such pledge shall release the pledging Lender from any of its obligations under the Loan Documents and (ii) such trustee shall not be entitled to exercise any of the rights of a Lender under the Loan Documents even though such trustee may have acquired ownership rights with respect to the pledged interest through foreclosure or otherwise. (k) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Lender”) may grant to a special purpose funding vehicle identified as such in writing from time to time by the Granting Lender to the Administrative Agent and BMCA (an “SPC”) the option to provide all or any part of any Term Loan Advance that such Granting Lender would otherwise be obligated to make pursuant to this Agreement, provided that (i) nothing herein shall constitute a commitment by any SPC to fund any Term Loan Advance, and (ii) if an SPC elects not to exercise such option or otherwise fails to make all or any part of such Term Loan Advance, the Granting Lender shall be obligated to make such Term Loan Advance pursuant to the terms hereof. The making of an Advance by an SPC hereunder shall utilize the Term Loan Commitment of the Granting Lender to the same extent, and as if, such Term Loan Advance were made by such Granting Lender. Each party hereto hereby agrees that (i) no SPC shall be liable for any indemnity or similar payment obligation under this Agreement for which a Lender would be liable, (ii) no SPC shall be entitled to the benefits of Sections 2.09 and 2.11 (or any other increased costs protection provision) and (iii) the Granting Bank shall for all purposes, including the approval of any amendment or waiver of any provision of any Loan Document, remain the Lender of record hereunder. In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior Debt of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency, or liquidation proceeding under the laws of the United States or any State thereof. Notwithstanding anything to the contrary contained in this Agreement, any SPC may (i) with notice to, but without prior consent of, BMCA and the Administrative Agent and with the payment of a processing fee of $500 and without paying any processing fee therefor, assign all or any portion of its interest in any Term Loan Advance to the Granting Lender and (ii) disclose on a confidential basis any non-public information relating to its funding of Term Loan Advance to any rating agency, commercial paper dealer or provider of any surety or guarantee or credit or liquidity enhancement to such SPC. This subsection (k) may not be amended without the prior written consent of each Granting Lender, all or any part of whose Term Loan Advances are being funded by the SPC at the time of such amendment.

Appears in 1 contract

Samples: Credit Agreement (Applebees International Inc)

Assignments and Participations. (a) Each Lender ~~may, upon at least five Business Days’ notice to such Lender and the Administrative Agent,~~ Party may assign to one or more Eligible Assignees all or a portion of its rights and obligations under this Agreement (including (y) all or a portion of its Revolving Commitment, the Revolving Advances owing to it, L/C Credit Extensions and the Revolving Note or Revolving Notes held by it, and/or (z) all or a portion of its Term ~~Loan~~ Commitment, the Term ~~Loan~~ Advances owing to it it, and the Term Note or Term Notes held by it), including any pledge or assignment to secure obligations to a Federal Reserve Bank; provided, however, that (i~~) each such assignment shall be of a uniform, and not a varying, percentage of all rights and obligations under this Agreement, (ii~~) except in the case of an assignment to a Person that, immediately prior to such assignment, was a ~~Lender~~Lender Party, an Affiliate of any Lender Party or an Approved Fund ~~of any Lender~~ or an assignment of all of a ~~Lender~~Lender Party’s rights and obligations under this Agreement, the aggregate amount of ~~the~~ (A) any Term ~~Loan Commitments~~ Commitment or Term ~~Loan Advances~~ Advance being assigned to such Person pursuant to such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $5,000,000 (or such lesser amount as shall be approved by the Administrative Agent) and shall be in increments of $1,000,000 in excess thereof, or (B) any Revolving Commitment or Revolving Commitment being assigned to such Eligible Assignee pursuant to such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $5,000,000 (or such lesser amount as shall be approved by the Administrative ~~Agent and, so long as no Default~~ Agent) and shall ~~have occurred and~~ be ~~continuing at the time~~ in increments of ~~effectiveness of such assignment, BMCA)~~$1,000,000 in excess thereof, (~~iii~~ii) each such assignment shall be to an Eligible Assignee; provided that the Issuing Bank shall have sole discretion to consent to such Person being an Eligible Assignee, (iviii) ~~except in the case of an assignment by a Person that, immediately prior~~ (A) with respect to ~~such assignment, was a Lender, to one of its Affiliates~~any Term Commitment or any Term Advance, no such assignments shall be permitted without the consent of the Administrative Agent (such consent not to be unreasonably withheld) and, so long as no Default ~~shall have~~ has occurred and ~~be continuing at~~ is continuing, the ~~time~~ consent of ~~effectiveness of~~ the Borrower (such ~~assignment, BMCA (in each case, which consents shall~~ consent not to be unreasonably withheld) ), except assignments to any other Lender Party, an Affiliate of any Lender, an Approved Fund or to any Federal Reserve Bank, and (vB) with respect to any Revolving Commitment, Revolving Advance, L/C Credit Extension or L/C Borrowing, no such assignments shall be permitted without the consent of any Issuing Bank acting in its sole discretion, the Administrative Agent (such consent not to be unreasonably withheld or delayed) and, so long as no Default has occurred and is continuing, the consent of the Borrower (such consent not to be unreasonably withheld), except, with respect to the Borrower’s consent only, assignments to any other Lender Party, an Affiliate of any Lender, any Approved Fund or to any Federal Reserve Bank, and (iv) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together with any Note or Notes subject to such assignment and a processing and recordation fee of $3,500; provided that only one such fee shall be payable in the case of contemporaneous assignments to or by two or more Approved Funds and (v) with respect to Revolving Commitment or Revolving Advance, each such assignment thereof shall be made on a pro rata basis with respect to each of (A) such Revolving Lender’s Revolving Advances and L/C Credit Extensions and (B) such Revolving Lender’s Revolving Commitment. (b) Any Issuing Bank may assign to an Eligible Assignee all of its rights and obligations under the undrawn portion of any Letter of Credit Commitment at any time; provided, however, that (i) each such assignment shall be to an Eligible Assignee and (ii) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together with a processing and recordation fee of $3,500. (c) Upon such execution, delivery, acceptance and recording, from and after the effective date specified in such 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, have the rights and obligations of a Lender or Issuing Bank, as the case may be, hereunder and (ii) the Lender or Issuing Bank assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (other than its rights under Sections ~~2.09~~2.11, ~~2.11~~ 2.13 and 8.04 to the extent any claim thereunder relates to an event arising prior to such assignment) and be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all of the remaining portion of an assigning Lender’s or Issuing Bank’s rights and obligations under this Agreement, such Lender or Issuing Bank shall cease to be a party hereto). (cd) By executing and delivering an Assignment and Acceptance, each Lender Party assignor thereunder and each assignee thereunder confirm to and agree with each other and the other parties thereto and hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender Party makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with any Loan Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value ~~of, or the perfection or priority~~ of ~~any lien or security interest created or purported to be created under or in connection with,~~ any Loan Document or any other instrument or document furnished pursuant thereto; (ii) such assigning Lender Party makes no representation or warranty and assumes no responsibility with respect to the financial condition of ~~any Loan Party~~ the Borrower or the performance or observance by ~~any Loan Party~~ the Borrower of any of its obligations under any Loan Document or any other instrument or document furnished pursuant thereto; (iii) such assignee confirms that it has received a copy of this ~~Agreement~~Agreement and each other Loan Document, together with copies of the financial statements referred to in ~~Section 4.01~~ Sections 3.01(a)(vi), 4.01(f), 5.03(b) and 5.03(c) and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) such assignee will, independently and without reliance upon ~~any~~ the Administrative Agent, such assigning Lender Party or any other Lender Party 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 or any other Loan Document; (v) such assignee confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes ~~each~~ the Administrative Agent to take such action as agent on its behalf and to exercise such powers and discretion under the Loan Documents as are delegated to ~~such~~ the Administrative Agent by the terms hereof and thereof, together with such powers and discretion as are reasonably incidental thereto; and (vii) such assignee agrees that it will perform in accordance with their terms all of the obligations that by the terms of this Agreement and the other Loan Documents are required to be performed by it as a ~~Lender~~Lender or Issuing Bank, as the case may be. (de) The Administrative Agent ~~acting for this purpose (but only for this purpose) as the agent of the Borrowers,~~ shall maintain at its address referred to in Section 8.02 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 ~~Lenders~~ Lender Parties and the ~~Term Loan Commitment~~ Commitments of, and principal amount of the ~~Term Loan~~ Advances and L/C Borrowings owing to, each Lender Party from time to time (the “Register”). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the ~~Borrowers~~Borrower, the ~~Agents~~ Administrative Agent and the ~~Lenders~~ Lender Parties shall treat each Person whose name is recorded in the Register as a Lender Party hereunder for all purposes of this Agreement. The Register shall be available for inspection by the ~~Borrowers~~ Borrower or ~~any~~ the Administrative Agent or any Lender Party at any reasonable time and from time to time upon reasonable prior notice. (e) Notwithstanding anything to the contrary contained in clause (b) above, the Term Loan Advances (including the Notes evidencing such Term Loan Advances) are registered obligations and the right, title, and interest of the Lenders and their assignees in and to such Term Loan Advances shall be transferable only upon notation of such transfer in the Register. A Note shall only evidence the Lender’s or an assignee’s right title and interest in and to the related Term Loan Advance, and in no event is any such Note to be considered a bearer instrument or obligation. This Section 8.07 shall be construed so that the Term Loan Advances are at all times maintained in “registered form” within the meaning of sections 163(f), 871(h)(2) and 881(c)(2) of the Internal Revenue Code and any related regulations (or any successor provisions of the Internal Revenue Code or such regulations). Solely for purposes of this and for tax purposes only, the Administrative Agent shall act as each Borrower’s agent for purposes of maintaining such notations of transfer in the Register. (f) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender Party and an assignee, together with any Note or Notes subject to such assignment, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit ~~C hereto~~C, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to ~~BMCA and each other Agent~~the Borrower. In the case of any assignment by a Lender, within five Business Days after its receipt of such notice, the ~~Borrowers~~Borrower, at ~~their~~ its own expense, ~~shall, if requested by the assignee,~~ shall execute and deliver to the Administrative Agent in exchange for the surrendered Note or Notes ~~an amended and restated~~ a new Note ~~(which shall be marked “Amended and Restated”)~~ to the order of such Eligible Assignee in an amount equal to the Revolving Commitment or Term ~~Loan Commitment~~ Commitment, as the case may be, assumed by it ~~under each Facility~~ pursuant to such Assignment and Acceptance and, if any assigning Lender has retained a Revolving Commitment or Term ~~Loan Commitment hereunder under such Facility and has requested~~ Commitment, as the case may be, hereunder, a ~~replacement Note, an amended and restated~~ new Note to the order of such assigning Lender in an amount equal to the Revolving Commitment or Term ~~Loan Commitment~~ Commitment, as the case may be, retained by it hereunder. Such ~~amended and restated~~ 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 Assignment and Acceptance and shall otherwise be in substantially the form of Exhibit ~~A hereto.~~A. (g) Each Lender Party may sell participations to one or more Persons (other than ~~any Loan Party~~ the Borrower or any Affiliate of ~~its Affiliates~~the Borrower) in or to all or a portion of its rights and obligations under this Agreement (including (i) all or a portion of its Revolving Commitment, the Revolving Advances owing to it, L/C Credit Extensions and the Revolving Note or Revolving Notes (if any) held by it, and/or (ii) all or a portion of its Term ~~Loan Commitments~~Commitment, the Term ~~Loan~~ Advances owing to it it, and the Term Note or Term Notes (if any) held by it); provided, however, that (i) such ~~Lender~~Lender Party’s obligations under this Agreement (including its Revolving Commitment and L/C Credit Extensions or Term ~~Loan Commitments~~Commitment, as the case may be) shall remain unchanged, (ii) such Lender Party shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) such Lender Party shall remain the holder of any such Note for all purposes of this Agreement, (iv) the ~~Borrowers~~Borrower, the ~~Agents~~ Administrative Agent and the other ~~Lenders~~ Lender Parties shall continue to deal solely and directly with such Lender Party in connection with such ~~Lender~~Lender Party’s rights and obligations under this Agreement and (v) no participant under any such participation shall have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by ~~any Loan Party~~ the Borrower therefrom, except to the extent that such amendment, waiver or consent ~~requires~~ would reduce the ~~consent~~ principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, postpone any date fixed for any payment of ~~all Lenders~~principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation. (h) Notwithstanding anything in this Agreement to the contrary (including any other provision regarding assignments, participations, transfers or novations), any Lender (a “Granting Lender”) may, without the consent of any other party hereto, grant to a special purpose vehicle (whether a corporation, partnership, limited liability company, trust or otherwise, an “SPV”) sponsored or managed by the Granting Lender or any Affiliate thereof, a participation in all or any part of any Advance (including the Commitment therefor) that such Granting Lender has made or will make pursuant to this Agreement; provided that (i) such Granting Lender’s obligations under this Agreement (including its Commitment) shall remain unchanged; (ii) such Granting Lender shall remain the holder of its Note for all purposes under this Agreement; and (iii) the Borrower, the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Granting Lender in connection with such Granting Lender’s rights and obligations under the Loan Documents. Each party hereto hereby agrees that (A) no SPV will be entitled to any rights or benefits that a Lender would not otherwise be entitled to under this Agreement or any other Loan Document; and (B) an SPV may assign its interest in any Advance under this Agreement to any Person that would constitute a Lender subject to the satisfaction of all requirements for an assignment by any Lender set forth in this Section 8.07. Notwithstanding anything in this Agreement to the contrary, the Granting Lender and any SPV may, without the consent of any other party to this Agreement, and without limiting any other rights of disclosure of the Granting Lender under this Agreement, disclose on a confidential basis any non-public information relating to its funding of its Advances to (1) (in the case of the Granting Lender) any actual or prospective SPV, (2) (in the case of an SPV) its lenders, sureties, reinsurers, guarantors or credit liquidity enhancers, (3) their respective directors, officers, and advisors, and (4) any rating agency. (i) Any Lender Party may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section 8.07, disclose to the assignee or participant or proposed assignee or participant any information relating to the ~~Borrowers~~ Borrower furnished to such Lender Party by or on behalf of the ~~Borrowers~~Borrower; ~~provided, however,~~ 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 received by it from such Lender ~~in accordance with the terms of Section 8.09~~Party. (ij) Notwithstanding any other provision set forth in this Agreement, any Lender Party may at any time ~~create~~ pledge or assign a security interest in all or any portion of its rights under this Agreement (including the ~~Term Loan~~ Advances owing to it and the Note or Notes held by it) ~~in favor~~ to secure the obligations of such Lender Party, including any pledge or assignment to secure obligations to a Federal Reserve ~~Bank in accordance with Regulation A of the Board of Governors of the Federal Reserve System. (j) Notwithstanding anything to the contrary contained herein, any Lender~~ Bank; provided that is a fund that invests in bank loans may create a security interest in all or any portion of the Term Loan Advances owing to it and the Note or Notes held by it to the trustee for holders of obligations owed, or securities issued, by such fund as security for such obligations or securities, provided, that unless and until such trustee actually becomes a Lender in compliance with the other provisions of this Section 8.07, (i) no such pledge or assignment shall release ~~the pledging~~ such Lender Party from any of its obligations ~~under the Loan Documents and (ii)~~ hereunder or substitute any such ~~trustee shall not be entitled to exercise any of the rights of~~ pledgee or assignee for such Lender Party as a ~~Lender under the Loan Documents even though such trustee may have acquired ownership rights with respect to the pledged interest through foreclosure or otherwise~~party hereto. (k) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Lender”) may grant to a special purpose funding vehicle identified as such in writing from time to time by the Granting Lender to the Administrative Agent and BMCA (an “SPC”) the option to provide all or any part of any Term Loan Advance that such Granting Lender would otherwise be obligated to make pursuant to this Agreement, provided that (i) nothing herein shall constitute a commitment by any SPC to fund any Term Loan Advance, and (ii) if an SPC elects not to exercise such option or otherwise fails to make all or any part of such Term Loan Advance, the Granting Lender shall be obligated to make such Term Loan Advance pursuant to the terms hereof. The making of an Advance by an SPC hereunder shall utilize the Term Loan Commitment of the Granting Lender to the same extent, and as if, such Term Loan Advance were made by such Granting Lender. Each party hereto hereby agrees that (i) no SPC shall be liable for any indemnity or similar payment obligation under this Agreement for which a Lender would be liable, (ii) no SPC shall be entitled to the benefits of Sections 2.09 and 2.11 (or any other increased costs protection provision) and (iii) the Granting Bank shall for all purposes, including the approval of any amendment or waiver of any provision of any Loan Document, remain the Lender of record hereunder. In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior Debt of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency, or liquidation proceeding under the laws of the United States or any State thereof. Notwithstanding anything to the contrary contained in this Agreement, any SPC may (i) with notice to, but without prior consent of, BMCA and the Administrative Agent and with the payment of a processing fee of $500 and without paying any processing fee therefor, assign all or any portion of its interest in any Term Loan Advance to the Granting Lender and (ii) disclose on a confidential basis any non-public information relating to its funding of Term Loan Advance to any rating agency, commercial paper dealer or provider of any surety or guarantee or credit or liquidity enhancement to such SPC. This subsection (k) may not be amended without the prior written consent of each Granting Lender, all or any part of whose Term Loan Advances are being funded by the SPC at the time of such amendment.

Appears in 1 contract

Samples: Credit Agreement (Allegheny Energy Inc)

Assignments and Participations. (a) Each ~~Lender~~ Bank may, and so long as no Default shall have occurred and be continuing, if demanded by the Company pursuant to Section 2.11 upon at least five (5) Business Days’ ' notice to such ~~Lender~~ Bank and the Administrative Agent, will, assign to one or more Eligible Assignees all or a portion of its rights and obligations under this Agreement (including all or a portion of its ~~Term Loan~~ Commitment, its LOC Participating Interests and the ~~Term Loan Advances~~ LOC Disbursements owing to ~~it and the Note or Notes held by~~ it); ~~provided, however,~~ provided that (i) each such assignment shall be of a uniform, and not a varying, percentage of all rights and obligations ~~under this Agreement~~of such Bank hereunder, (ii) except in the case of an assignment to a Person that, immediately prior to such assignment, was (x) a ~~Lender,~~ Bank or an Affiliate of ~~any Lender or an Approved Fund of any Lender or an assignment of all of~~ a ~~Lender’s rights and obligations under this Agreement~~Bank, the aggregate amount of the ~~Term Loan Commitments or Term Loan Advances~~ Commitment being assigned to such Eligible Assignee pursuant to such assignment (determined as of the date of the Assignment and ~~Acceptance~~ Assumption with respect to such assignment) shall in no event be less than $1,000,000 unless it is an assignment of the entire amount of such assignor's Commitment, or (y) not a Bank or an Affiliate of any Bank, the aggregate amount of the Commitment being assigned to such Eligible Assignee pursuant to such assignment (determined as of the date of the Assignment and Assumption with respect to such assignment) shall in no event be less than $5,000,000 ~~(or such lesser~~ unless it is an assignment of the entire amount ~~as shall be approved by the Administrative Agent and, so long as no Default shall have occurred and be continuing at the time of effectiveness~~ of such ~~assignment, BMCA)~~assignor's Commitment, (iii) each such assignment shall be to an Eligible ~~Assignee, (iv) except in the case of an~~ Assignee and such assignment is consented to and approved by ~~a Person that, immediately prior to such assignment, was a Lender, to one of its Affiliates, no such assignments shall be permitted without the consent of~~ the Administrative ~~Agent~~ Agent, the Issuing Bank and, so long as there then exists no ~~Default~~ Event of Default, the Company (such approvals not to be unreasonably withheld), (iv) each assignment made as a result of a demand by the Company pursuant to Section 2.11 shall be arranged by the Company after consultation with the Administrative Agent, and shall be either an assignment of all of the rights and obligations of the assigning Bank under this Agreement or an assignment of a portion of such rights and obligations made concurrently with another such assignment or other such assignments that together cover all of the rights and obligations of the assigning Bank under this Agreement, (v) no Bank shall be obligated to make any such assignment as a result of a demand by the Company pursuant to Section 2.11 unless and until such Bank shall have ~~occurred~~ received one or more payments from either the Company or other Eligible Assignees in an aggregate amount at least equal to the aggregate outstanding principal amount of the LOC Disbursements made by such Bank, together with accrued interest thereon to the date of payment of such principal amount and ~~be continuing at the time of effectiveness~~ all other amounts payable to such Bank under this Agreement, (vi) as a result of such assignment, ~~BMCA (in each case, which consents~~ the Company shall not be ~~unreasonably withheld)~~ subject to additional amounts under Section 2.06 or 2.08, and (vvii) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and ~~Acceptance~~Assumption, together with ~~any Note or Notes subject to such assignment and~~ a processing and recordation fee of $3,500. (b) Upon such execution, delivery, acceptance and recording, from and after the effective date specified in such Assignment and ~~Acceptance~~Assumption, (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~~Assumption, have the rights and obligations of a ~~Lender hereunder~~ Bank hereunder, and (ii) the ~~Lender~~ Bank assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and ~~Acceptance~~Assumption, relinquish its rights (other than its rights under Sections ~~2.09~~2.06, ~~2.11~~ 2.08 and ~~8.04~~ 9.04 to the extent any claim thereunder relates to an event arising prior to such ~~assignment~~assignment and any other rights that are expressly provided hereunder to survive) and be released from its obligations under this Agreement (and, in the case of an Assignment and ~~Acceptance~~ Assumption covering all of the remaining portion of an assigning ~~Lender’s~~ Bank's rights and obligations under this Agreement, such ~~Lender~~ Bank shall cease to be a party hereto). (c) By executing and delivering an Assignment and ~~Acceptance~~Assumption, each ~~Lender~~ Bank assignor thereunder and each assignee thereunder confirm to and agree with each other and the other parties thereto and hereto as follows: (i) other than as provided in such Assignment and ~~Acceptance~~Assumption, such assigning ~~Lender~~ Bank makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with any Loan Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value of, or the perfection or priority of any ~~lien or security interest~~ Lien created or purported to be created under or in connection with, any Loan Document or any other instrument or document furnished pursuant thereto; (ii) such assigning ~~Lender~~ Bank makes no representation or warranty and assumes no responsibility with respect to the financial condition of the Company or any ~~Loan Party~~ of its Subsidiaries or the performance or observance by the Company or any ~~Loan Party~~ of its Subsidiaries of any of its obligations under any Loan Document or any other instrument or document furnished pursuant thereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements ~~referred to in Section 4.01~~ and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and ~~Acceptance~~Assumption; (iv) such assignee will, independently and without reliance upon ~~any~~ the Administrative 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, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) such assignee confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes ~~each~~ the Administrative Agent to take such action as agent on its behalf and to exercise such powers and discretion under the Loan Documents as are delegated to ~~such~~ the Administrative Agent by the terms hereof and thereof, together with such powers and discretion as are reasonably incidental thereto; and (vii) such assignee agrees that it will perform in accordance with their terms all of the obligations that by the terms of this Agreement are required to be performed by it as a ~~Lender~~Bank. (d) The Administrative ~~Agent~~ Agent, acting for this purpose (but only for this purpose) as the agent of the ~~Borrowers~~Company, shall maintain at its address referred to in Section ~~8.02~~ 9.02 a copy of each Assignment and ~~Acceptance~~ Assumption delivered to and accepted by it and ~~a register for~~ the ~~recordation of the names and addresses of the Lenders and the Term Loan Commitment of, and principal amount of the Term Loan Advances 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 ~~Borrowers~~Company, the ~~Agents~~ other Applicants, the Administrative Agent and the ~~Lenders~~ Banks shall treat each Person whose name is recorded in the Register as a ~~Lender~~ Bank hereunder for all purposes of this Agreement. The Register shall be available for inspection by the ~~Borrowers~~ Company or any ~~Agent or any Lender~~ Bank at any reasonable time and from time to time upon reasonable prior notice. (e) ~~Notwithstanding anything~~ Upon its receipt of a completed Assignment and Assumption executed by an assigning Bank and an assignee and consented to by the ~~contrary contained in clause (b) above~~Administrative Agent, the ~~Term Loan Advances (including the Notes evidencing such Term Loan Advances) are registered obligations and the right~~Issuing Bank, ~~title~~and, ~~and interest of the Lenders and their assignees in and~~ where required, pursuant to such Term Loan Advances shall be transferable only upon notation of such transfer in the Register. A Note shall only evidence the Lender’s or an assignee’s right title and interest in and to the related Term Loan Advance, and in no event is any such Note to be considered a bearer instrument or obligation. This Section ~~8.07 shall be construed so that the Term Loan Advances are at all times maintained in “registered form” within the meaning of sections 163(f~~9.07(a), ~~871(h)(2) and 881(c)(2) of~~ the ~~Internal Revenue Code and any related regulations (or any successor provisions of the Internal Revenue Code or such regulations). Solely for purposes of this and for tax purposes only~~Company, the Administrative Agent shall act as each Borrower’s agent for purposes of maintaining such notations of transfer in the Register. (f) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee, together with any Note or Notes subject to such assignment, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit C hereto, (i) accept such Assignment and ~~Acceptance~~Assumption, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to ~~BMCA~~ the Company and each other Agent. In the case of any assignment by a Lender, within five Business Days after its receipt of such notice, the Borrowers, at their own expense, shall, if requested by the assignee, execute and deliver to the Administrative Agent in exchange for the surrendered Note or Notes an amended and restated Note (which shall be marked “Amended and Restated”) to the order of such Eligible Assignee in an amount equal to the Term Loan Commitment assumed by it under each Facility pursuant parties to such Assignment and Acceptance and, if any assigning Lender has retained a Term Loan Commitment hereunder under such Facility and has requested a replacement Note, an amended and restated Note to the order of such assigning Lender in an amount equal to the Term Loan Commitment retained by it hereunder. Such amended and restated 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 Assignment and Acceptance and shall otherwise be in substantially the form of Exhibit A heretoAssumption. (gf) Each ~~Lender~~ Bank may sell participations to one or more Persons (other than ~~any Loan Party~~ the Company or any of its Affiliates) in or to all or a portion of its rights and obligations under this Agreement (including all or a portion of its ~~Term Loan Commitments~~Commitment, its LOC Participating Interests and the ~~Term Loan Advances~~ LOC Disbursements owing to ~~it and the Note or Notes (if any) held by~~ it); ~~provided, however,~~ provided that (i) such ~~Lender’s~~ Bank's obligations under this Agreement (including its ~~Term Loan Commitments~~Commitment and its LOC Participating Interests) shall remain unchanged, (ii) such ~~Lender~~ Bank 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, (iv) the Borrowers~~Company, the ~~Agents~~ other Applicants, the Administrative Agent and the other ~~Lenders~~ Banks shall continue to deal solely and directly with such ~~Lender~~ Bank in connection with such ~~Lender’s~~ Bank's rights and obligations under this ~~Agreement~~ Agreement, and (viv) no participant under any such participation shall have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by ~~any Loan Party~~ the Company therefrom, except to the extent that such amendment, waiver or consent ~~requires~~ would reduce the ~~consent~~ principal of, or interest on, reimbursement obligations or any fees or other amounts payable hereunder, or postpone any date fixed for any payment thereof, in each case to the extent subject to such participation. Each Bank shall, as agent of ~~all Lenders~~the Company solely for the purposes of this Section 9.07, record in book entries maintained by such Bank, the name and amount of the participating interest of each Person entitled to receive payments in respect of any participating interests sold pursuant to this Section 9.07. (hg) Any ~~Lender~~ Bank may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section ~~8.07~~9.07, disclose to the assignee or participant or proposed assignee or participant any information relating to the ~~Borrowers~~ Company or any of its Subsidiaries furnished to such ~~Lender~~ Bank by or on behalf of the ~~Borrowers~~Company or any such Subsidiary; ~~provided, however,~~ 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 received by it from such ~~Lender in accordance with the terms of Section 8.09~~Bank. (ih) Notwithstanding any other provision set forth in this Agreement, any ~~Lender~~ Bank may at any time create a security interest in all or any portion of its rights under this Agreement (including the ~~Term Loan Advances~~ LOC Disbursements 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 System. (j) Notwithstanding anything to the contrary contained herein, any Lender that is a fund that invests in bank loans may create a security interest in all or any portion of the Term Loan Advances owing to it and the Note or Notes held by it to the trustee for holders of obligations owed, or securities issued, by such fund as security for such obligations or securities, provided, that unless and until such trustee actually becomes a Lender in compliance with the other provisions of this Section 8.07, (i) no such pledge shall release the pledging Lender from any of its obligations under the Loan Documents and (ii) such trustee shall not be entitled to exercise any of the rights of a Lender under the Loan Documents even though such trustee may have acquired ownership rights with respect to the pledged interest through foreclosure or otherwise. (k) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Lender”) may grant to a special purpose funding vehicle identified as such in writing from time to time by the Granting Lender to the Administrative Agent and BMCA (an “SPC”) the option to provide all or any part of any Term Loan Advance that such Granting Lender would otherwise be obligated to make pursuant to this Agreement, provided that (i) nothing herein shall constitute a commitment by any SPC to fund any Term Loan Advance, and (ii) if an SPC elects not to exercise such option or otherwise fails to make all or any part of such Term Loan Advance, the Granting Lender shall be obligated to make such Term Loan Advance pursuant to the terms hereof. The making of an Advance by an SPC hereunder shall utilize the Term Loan Commitment of the Granting Lender to the same extent, and as if, such Term Loan Advance were made by such Granting Lender. Each party hereto hereby agrees that (i) no SPC shall be liable for any indemnity or similar payment obligation under this Agreement for which a Lender would be liable, (ii) no SPC shall be entitled to the benefits of Sections 2.09 and 2.11 (or any other increased costs protection provision) and (iii) the Granting Bank shall for all purposes, including the approval of any amendment or waiver of any provision of any Loan Document, remain the Lender of record hereunder. In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior Debt of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency, or liquidation proceeding under the laws of the United States or any State thereof. Notwithstanding anything to the contrary contained in this Agreement, any SPC may (i) with notice to, but without prior consent of, BMCA and the Administrative Agent and with the payment of a processing fee of $500 and without paying any processing fee therefor, assign all or any portion of its interest in any Term Loan Advance to the Granting Lender and (ii) disclose on a confidential basis any non-public information relating to its funding of Term Loan Advance to any rating agency, commercial paper dealer or provider of any surety or guarantee or credit or liquidity enhancement to such SPC. This subsection (k) may not be amended without the prior written consent of each Granting Lender, all or any part of whose Term Loan Advances are being funded by the SPC at the time of such amendment.

Appears in 1 contract

Samples: Letter of Credit Facility Agreement (Sunpower Corp)

Assignments and Participations. (a) Each Lender ~~may~~may (and, so long as no Default shall have occurred and be continuing, if demanded by the Borrower (following a demand by such Lender pursuant to Section 2.10 or 2.12 or if such Lender shall be a Defaulting Lender) upon at least ~~five~~ 5 Business Days’ ' notice to such Lender and the Administrative Agent, will) assign to one or more Eligible Assignees all or a portion of its rights and obligations under this Agreement and the other Loan Documents (~~including~~ including, without limitation, all or a portion of its ~~Term Loan Commitment~~Commitment or Commitments, the ~~Term Loan~~ Advances owing to it and the Note or Notes held by it); provided, however, that (i) each such assignment shall be of a uniform, and not a varying, percentage of all rights and obligations under ~~this Agreement~~and in respect of one or more Facilities, (ii) except in the case of an assignment to a Person that, immediately prior to such assignment, was a ~~Lender, an Affiliate of any Lender or an Approved Fund of any~~ Lender or an assignment of all of a Lender’s 's rights and obligations under this Agreement, the ~~aggregate~~ amount of the ~~Term Loan~~ Commitment or Commitments ~~or Term Loan Advances~~ of the assigning Lender being assigned ~~to such Eligible Assignee~~ pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $5,000,000 (or such lesser amount as shall be approved by the Administrative Agent and, so long as no Default shall have occurred and be continuing at the time of effectiveness of such assignment, BMCA)5,000,000, (iii) each such assignment shall be to an Eligible Assignee, (iv) ~~except in~~ each such assignment made as a result of a demand by the ~~case of an assignment by a Person that, immediately prior~~ Borrower pursuant to ~~such assignment, was a Lender, to one of its Affiliates, no such assignments~~ this Section 8.07(a) shall be ~~permitted without~~ arranged by the ~~consent of~~ Borrower after consultation with the Administrative Agent ~~and~~and shall be either an assignment of all of the rights and obligations of the assigning Lender under this Agreement and the other Loan Documents or an assignment of a portion of such rights and obligations made concurrently with another such assignment or other such assignments that together cover all of the rights and obligations of the assigning Lender under this Agreement and the other Loan Documents, ~~so long~~ (v) no Lender shall be obligated to make any such assignment as ~~no Default~~ a result of a demand by the Borrower pursuant to this Section 8.07(a) unless and until such Lender shall have ~~occurred and be continuing~~ received one or more payments from either the Borrower or one or more Eligible Assignees in an aggregate amount at least equal to the ~~time~~ aggregate outstanding principal amount of ~~effectiveness~~ the Advances owing to such Lender, 147 141 together with accrued interest thereon to the date of payment of such ~~assignment~~principal amount and all other amounts payable to such Lender under this Agreement, ~~BMCA (in each case, which consents shall not be unreasonably withheld)~~ and (vvi) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together with any Note or Notes subject to such assignment and a processing and recordation fee of $~~3,500~~1,500 for each Assignment and Acceptance between a Lender and one of its Affiliates or another Lender or $3,000 for each other Assignment and Acceptance, provided, however, that for each such assignment made as a result of a demand by the Borrower pursuant to this Section 8.07(a), the Borrower shall pay to the Administrative Agent the applicable processing and recordation fee. (b) Upon such execution, delivery, acceptance and recording, from and after the effective date specified in such Assignment and Acceptance, (ix) the assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, have the rights and obligations of a Lender or Issuing Bank, as the case may be, hereunder and (iiy) the Lender or Issuing Bank assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (other than its rights under Sections ~~2.09~~2.10, ~~2.11~~ 2.12 and 8.04 to the extent any claim thereunder relates to an event arising prior to such assignment) and be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all of or the remaining portion of an assigning Lender’s 's or Issuing Bank's rights and obligations under this Agreement, such Lender or Issuing Bank shall cease to be a party hereto). (c) By executing and delivering an Assignment and Acceptance, ~~each~~ the Lender Party assignor thereunder and ~~each~~ the assignee thereunder confirm to and agree with each other and the other parties ~~thereto and~~ hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender Party makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or any other Loan Document or any other instrument or document furnished pursuant hereto or thereto or the execution, legality, validity, enforceability, genuineness, sufficiency or value of, or the perfection or priority of any lien or security interest created or purported to be created under or in connection with, this Agreement or any other Loan Document or any other instrument or document furnished pursuant hereto or thereto; (ii) such assigning Lender Party makes no representation or warranty and assumes no responsibility with respect to the financial condition of the Borrower or any other Loan Party or the performance or observance by any Loan Party of any of its obligations under any Loan Document or any other instrument or document furnished pursuant thereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 4.01 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) such assignee will, 148 142 independently and without reliance upon any Agent, such assigning Lender Party or any other Lender Party and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) such assignee confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes each Agent to take such action as agent on its behalf and to exercise such powers and discretion under the Loan Documents as are delegated to such Agent by the terms ~~hereof and thereof~~hereof, together with such powers and discretion as are reasonably incidental thereto; and (vii) such assignee agrees that it will perform in accordance with their terms all of the obligations ~~that~~ which by the terms of this Agreement are required to be performed by it as a ~~Lender~~Lender or Issuing Bank, as the case may be. (d) The Administrative ~~Agent~~ Agent, acting for this purpose (but only for this purpose) as the agent of the ~~Borrowers~~Borrower, shall maintain at its address referred to in Section 8.02 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 ~~Lenders~~ Lender Parties and the ~~Term Loan~~ Commitment under each Facility of, and principal amount of the ~~Term Loan~~ Advances owing under each Facility to, each Lender Party from time to time (the “"Register”"). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the ~~Borrowers~~Borrower, the Agents and the ~~Lenders~~ Lender Parties shall treat each Person whose name is recorded in the Register as a Lender Party hereunder for all purposes of this Agreement. The Register shall be available for inspection by the ~~Borrowers or any Agent~~ Borrower or any Lender Party at any reasonable time and from time to time upon reasonable prior notice. (e) Notwithstanding anything to the contrary contained in clause (b) above, the Term Loan Advances (including the Notes evidencing such Term Loan Advances) are registered obligations and the right, title, and interest of the Lenders and their assignees in and to such Term Loan Advances shall be transferable only upon notation of such transfer in the Register. A Note shall only evidence the Lender’s or an assignee’s right title and interest in and to the related Term Loan Advance, and in no event is any such Note to be considered a bearer instrument or obligation. This Section 8.07 shall be construed so that the Term Loan Advances are at all times maintained in “registered form” within the meaning of sections 163(f), 871(h)(2) and 881(c)(2) of the Internal Revenue Code and any related regulations (or any successor provisions of the Internal Revenue Code or such regulations). Solely for purposes of this and for tax purposes only, the Administrative Agent shall act as each Borrower’s agent for purposes of maintaining such notations of transfer in the Register. (f) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender Party and an assignee, together with any Note or Notes subject to such assignment, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit C hereto, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to ~~BMCA~~ the Borrower and ~~each~~ the other ~~Agent~~Agents. In the case of any assignment by a Lender, within five Business Days after its receipt of such notice, the ~~Borrowers~~Borrower, at ~~their~~ its own expense, ~~shall, if requested by the assignee,~~ shall execute and deliver to the Administrative Agent in exchange for the surrendered Note or Notes ~~an amended and restated~~ a new Note ~~(which shall be marked “Amended and Restated”)~~ to the order of such Eligible Assignee in an amount equal to the ~~Term Loan~~ Commitment assumed by it under ~~each~~ a Facility pursuant to such Assignment and Acceptance and, if ~~any~~ the assigning Lender has retained a ~~Term Loan~~ Commitment hereunder under such ~~Facility and has requested~~ Facility, a ~~replacement Note, an amended and restated~~ new Note to the order of ~~such~~ the assigning Lender in an amount equal to the ~~Term Loan~~ Commitment retained by it hereunder. Such ~~amended and restated~~ 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 Assignment and Acceptance and shall otherwise be in substantially the form of Exhibit A A-1, X-0, X-0 xx A-4 hereto, as the case may be. (f) Each Issuing Bank may assign to one or more Eligible Assignees all or a portion of its rights and obligations under the undrawn portion of its Letter of Credit 149 143 Commitment at any time; provided, however, that (i) except in the case of an assignment to a Person that immediately prior to such assignment was an Issuing Bank or an assignment of all of an Issuing Bank's rights and obligations under this Agreement, the amount of the Letter of Credit Commitment of the assigning Issuing Bank being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $5,000,000 and shall be in an integral multiple of $1,000,000 in excess thereof, (ii) each such assignment shall be to an Eligible Assignee and (iii) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together with a processing and recordation fee of $3,000. (g) Each Lender Party may sell participations to one or more Persons (other than any Loan Party or any of its Affiliates) in or to all or a portion of its rights and obligations under this Agreement (~~including~~ including, without limitation, all or a portion of its ~~Term Loan~~ Commitments, the ~~Term Loan~~ Advances owing to it and the Note or Notes (if any) held by it); provided, however, that (i) such ~~Lender’s~~ Lender Party's obligations under this Agreement (~~including~~ including, without limitation, its ~~Term Loan~~ Commitments) shall remain unchanged, (ii) such Lender Party shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) such Lender Party shall remain the holder of any such Note for all purposes of this Agreement, (iv) the ~~Borrowers~~Borrower, the ~~Agents~~ Administrative Agent and the other ~~Lenders~~ Lender Parties shall continue to deal solely and directly with such Lender Party in connection with such ~~Lender’s~~ Lender Party's rights and obligations under this Agreement and (v) no participant under any such participation shall have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent ~~requires~~ would reduce the ~~consent~~ principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, postpone any date fixed for any payment of principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, release any Guarantor or Guarantors to the extent that such release would have the effect of releasing all ~~Lenders~~or substantially all of the Collateral, or release all or substantially all of the Collateral. (h) Any Lender Party may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section 8.07, disclose to the assignee or participant or proposed assignee or ~~participant~~ participant, any information relating to the ~~Borrowers~~ Borrower furnished to such Lender Party by or on behalf of the ~~Borrowers~~Borrower; provided, however, 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 received by it from such Lender ~~in accordance with the terms of Section 8.09~~Party. (i) Notwithstanding any other provision set forth in this Agreement, any Lender Party may at any time create a security interest in all or any portion of its rights 150 144 under this Agreement (~~including~~ including, without limitation, the ~~Term Loan~~ 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 System. (j) Notwithstanding anything to the contrary contained herein, any Lender that is a fund that invests in bank loans may create a security interest in all or any portion of the Term Loan Advances owing to it and the Note or Notes held by it to the trustee for holders of obligations owed, or securities issued, by such fund as security for such obligations or securities, provided, that unless and until such trustee actually becomes a Lender in compliance with the other provisions of this Section 8.07, (i) no such pledge shall release the pledging Lender from any of its obligations under the Loan Documents and (ii) such trustee shall not be entitled to exercise any of the rights of a Lender under the Loan Documents even though such trustee may have acquired ownership rights with respect to the pledged interest through foreclosure or otherwise. (k) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Lender”) may grant to a special purpose funding vehicle identified as such in writing from time to time by the Granting Lender to the Administrative Agent and BMCA (an “SPC”) the option to provide all or any part of any Term Loan Advance that such Granting Lender would otherwise be obligated to make pursuant to this Agreement, provided that (i) nothing herein shall constitute a commitment by any SPC to fund any Term Loan Advance, and (ii) if an SPC elects not to exercise such option or otherwise fails to make all or any part of such Term Loan Advance, the Granting Lender shall be obligated to make such Term Loan Advance pursuant to the terms hereof. The making of an Advance by an SPC hereunder shall utilize the Term Loan Commitment of the Granting Lender to the same extent, and as if, such Term Loan Advance were made by such Granting Lender. Each party hereto hereby agrees that (i) no SPC shall be liable for any indemnity or similar payment obligation under this Agreement for which a Lender would be liable, (ii) no SPC shall be entitled to the benefits of Sections 2.09 and 2.11 (or any other increased costs protection provision) and (iii) the Granting Bank shall for all purposes, including the approval of any amendment or waiver of any provision of any Loan Document, remain the Lender of record hereunder. In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior Debt of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency, or liquidation proceeding under the laws of the United States or any State thereof. Notwithstanding anything to the contrary contained in this Agreement, any SPC may (i) with notice to, but without prior consent of, BMCA and the Administrative Agent and with the payment of a processing fee of $500 and without paying any processing fee therefor, assign all or any portion of its interest in any Term Loan Advance to the Granting Lender and (ii) disclose on a confidential basis any non-public information relating to its funding of Term Loan Advance to any rating agency, commercial paper dealer or provider of any surety or guarantee or credit or liquidity enhancement to such SPC. This subsection (k) may not be amended without the prior written consent of each Granting Lender, all or any part of whose Term Loan Advances are being funded by the SPC at the time of such amendment.

Appears in 1 contract

Samples: Credit Agreement (Amf Bowling Inc)

Assignments and Participations. (a) Each Lender ~~may~~may and, so long as no Default shall have occurred and be continuing, if demanded by the Borrower pursuant to Section 2.10(e) upon at least five Business Days’ notice to such Lender and the Administrative Agent, will assign to one or more Eligible Assignees all or a portion of its rights and obligations under this Agreement (~~including~~ including, without limitation, all or a portion of its Term ~~Loan~~ C Commitment, the ~~Term Loan~~ Advances owing to it and the Term C Note or Term C Notes held by it); provided, however, that (i) each such assignment shall be of a uniform, and not a varying, percentage of all rights and obligations under ~~this Agreement~~and in respect of the Facility, (ii) except in the case of an assignment to a Person that, immediately prior to such assignment, was a Lender, an Affiliate of any Lender or an Approved Fund of any Lender or an assignment of all of a Lender’s rights and obligations under this Agreement, the aggregate amount of the Term ~~Loan~~ C Commitments ~~or Term Loan Advances~~ being assigned to such Eligible Assignee pursuant to such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $~~5,000,000~~ 1,000,000 (or such lesser amount as shall be approved by the Administrative Agent and, so long as no Default shall have occurred and be continuing at the time of effectiveness of such assignment, ~~BMCA~~the Borrower); provided, that simultaneous assignments to or by two or more Related Funds shall be treated as one assignment for purposes of the minimum assignment requirement, (iii) each such assignment shall be to an Eligible Assignee, (iv) ~~except in~~ each such assignment made as a result of a demand by the ~~case of~~ Borrower pursuant to Section 2.10(e) shall be arranged by the Borrower after consultation with the Administrative Agent and shall be either an assignment of all of the rights and obligations of the assigning Lender under this Agreement or an assignment of a portion of such rights and obligations made concurrently with another such assignment or other such assignments that together cover all of the rights and obligations of the assigning Lender under this Agreement, (v) no Lender shall be obligated to make any such assignment as a result of a demand by ~~a Person that, immediately prior~~ the Borrower pursuant to Section 2.10(e) unless and until such Lender shall have received one or more payments from either the Borrower or one or more Eligible Assignees in an aggregate amount at least equal to the aggregate outstanding principal amount of the Advances owing to such ~~assignment, was a~~ Lender, together with accrued interest thereon to ~~one~~ the date of ~~its Affiliates~~payment of such principal amount and all other amounts payable to such Lender under this Agreement, (vi) no such assignments shall be permitted without the consent of the Administrative Agent ~~and, so long as no Default~~ until the Administrative Agent shall have ~~occurred and be continuing at~~ notified the ~~time~~ Lenders that syndication of ~~effectiveness of such assignment, BMCA (in each case, which consents shall not be unreasonably withheld)~~ the Term C Commitments hereunder has been completed and (vvii) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together with any Term C Note or Term C Notes (if any) subject to such ~~assignment and a processing and recordation fee of $3,500~~assignment. (b) Upon such execution, delivery, acceptance and recording, from and after the effective date specified in such 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, have the rights and obligations of a Lender hereunder and (ii) the Lender assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (other than its rights under Sections ~~2.09~~2.10, ~~2.11~~ 2.12 and ~~8.04~~ 9.04 to the extent any claim thereunder relates to an event arising prior to such assignment) and be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all of the remaining portion of an assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto). (c) By executing and delivering an Assignment and Acceptance, each Lender assignor thereunder and each assignee thereunder confirm to and agree with each other and the other parties thereto and hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with any Loan Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value of, or the perfection or priority of any lien or security interest created or purported to be created under or in connection with, any Loan Document or any other instrument or document furnished pursuant thereto; (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party or the performance or observance by any Loan Party of any of its obligations under any Loan Document or any other instrument or document furnished pursuant thereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 4.01 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) such assignee will, independently and without reliance upon any Agent, such assigning Lender or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) such assignee confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes each Agent to take such action as agent on its behalf and to exercise such powers and discretion under the Loan Documents as are delegated to such Agent by the terms hereof and thereof, together with such powers and discretion as are reasonably incidental thereto; and (vii) such assignee agrees that it will perform in accordance with their terms all of the obligations that by the terms of this Agreement are required to be performed by it as a Lender. (d) The Administrative Agent , acting for this purpose (but only for this purpose) as the agent of the ~~Borrowers~~Borrower, shall maintain at its address referred to in Section ~~8.02~~ 9.02 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 Lenders and the Term ~~Loan~~ C Commitment under each Facility of, and principal amount of the ~~Term Loan~~ Advances owing under each Facility 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 Borrowers~~Borrower, the Agents and the Lenders shall treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the ~~Borrowers~~ Borrower or any Agent or any Lender at any reasonable time and from time to time upon reasonable prior notice. (e) Notwithstanding anything to the contrary contained in clause (b) above, the Term Loan Advances (including the Notes evidencing such Term Loan Advances) are registered obligations and the right, title, and interest of the Lenders and their assignees in and to such Term Loan Advances shall be transferable only upon notation of such transfer in the Register. A Note shall only evidence the Lender’s or an assignee’s right title and interest in and to the related Term Loan Advance, and in no event is any such Note to be considered a bearer instrument or obligation. This Section 8.07 shall be construed so that the Term Loan Advances are at all times maintained in “registered form” within the meaning of sections 163(f), 871(h)(2) and 881(c)(2) of the Internal Revenue Code and any related regulations (or any successor provisions of the Internal Revenue Code or such regulations). Solely for purposes of this and for tax purposes only, the Administrative Agent shall act as each Borrower’s agent for purposes of maintaining such notations of transfer in the Register. (f) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee, together with any Term C Note or Term C Notes (if any) subject to such assignment, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit C hereto, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to ~~BMCA~~ the Borrower and each other Agent. In the case of any assignment by a Lender, within five Business Days after its receipt of such notice, the ~~Borrowers~~Borrower, at ~~their~~ its own expense, ~~shall, if requested by the assignee,~~ shall execute and deliver to the Administrative Agent in exchange for the surrendered Term C Note or Term C Notes (if any) an amended and restated Term C Note ~~(which shall be marked “Amended and Restated”)~~ to the order of such Eligible Assignee in an amount equal to the Term ~~Loan~~ C Commitment assumed by it under each Facility pursuant to such Assignment and Acceptance and, if any assigning Lender that had a Term C Note or Term C Notes prior to such assignment has retained a Term ~~Loan~~ C Commitment hereunder under such ~~Facility and has requested a replacement Note~~Facility, an amended and restated Term C Note to the order of such assigning Lender in an amount equal to the Term ~~Loan~~ C Commitment retained by it hereunder. Such amended and restated Term C Note or Term C Notes ~~shall be in an aggregate principal amount equal to the aggregate principal amount of such surrendered Note or Notes,~~ shall be dated the effective date of such Assignment and Acceptance and shall otherwise be in substantially the form of Exhibit A hereto. (f) [Reserved.] (g) Each Lender may sell participations to one or more Persons (other than any Loan Party or any of its Affiliates) in or to all or a portion of its rights and obligations under this Agreement (~~including~~ including, without limitation, all or a portion of its Term ~~Loan~~ C Commitments, the ~~Term Loan~~ Advances owing to it and the Term C Note or Term C Notes (if any) held by it); provided, however, that (i) such Lender’s obligations under this Agreement (~~including~~ including, without limitation, its Term ~~Loan Commitments~~C Commitment) shall remain unchanged, (ii) 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 Term C Note for all purposes of this Agreement, (iv) the ~~Borrowers~~Borrower, the Agents and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and (v) no participant under any such participation shall have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent ~~requires~~ would reduce the ~~consent~~ principal of, or interest on, the Advances or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, postpone any date fixed for any payment of principal of, or interest on, the Advances or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, or release all ~~Lenders~~or substantially all of the Collateral or the value of the Guaranties. (h) Any Lender may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section ~~8.07~~9.07, disclose to the assignee or participant or proposed assignee or participant any information relating to the ~~Borrowers~~ Borrower furnished to such Lender by or on behalf of the ~~Borrowers~~Borrower; provided, however, 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 received by it from such ~~Lender in accordance with the terms of Section 8.09~~Lender. (i) Notwithstanding any other provision set forth in this Agreement, any Lender may at any time create a security interest in all or any portion of its rights under this Agreement (~~including~~ including, without limitation, the ~~Term Loan Advances~~ Advance owing to it and the Term C Note or Term C Notes (if any) held by it) in favor of any Federal Reserve Bank in accordance with Regulation A of the Board of Governors of the Federal Reserve System. (j) Notwithstanding anything to the contrary contained herein, any Lender that is a ~~fund that invests in bank loans may~~ Fund may, without the consent of the Borrower or the Administrative Agent, create a security interest in all or any portion of the ~~Term Loan~~ Advances owing to it and ~~the~~ any Term C Note or Term C Notes held by it to the trustee ~~for~~ or other holders of obligations owed, or securities issued, by such ~~fund~~ Fund as security for such obligations or securities; provided that, ~~provided, that~~ unless and until such creditor, holder or trustee actually becomes a Lender in compliance with the other provisions of this Section ~~8.07~~9.07, (i) no such pledge shall release the pledging Lender from any of its obligations under the Loan Documents and (ii) such trustee shall not be entitled to exercise any of the rights of a Lender under the Loan Documents even though such trustee may have acquired ownership rights with respect to the pledged interest through foreclosure or otherwise. (k) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Lender”) may grant to a special purpose funding vehicle identified as such in writing from time to time by the Granting Lender to the Administrative Agent and ~~BMCA~~ the Borrower (an “SPC”) the option to provide all or any part of any ~~Term Loan~~ Advance that such Granting Lender would otherwise be obligated to make pursuant to this Agreement, ; provided that (i) nothing herein shall constitute a commitment by any SPC to fund any ~~Term Loan Advance,~~ Advance and (ii) if an SPC elects not to exercise such option or otherwise fails to make all or any part of such ~~Term Loan~~ Advance, the Granting Lender shall be obligated to make such ~~Term Loan~~ Advance pursuant to the terms hereof. The making of an Advance by an SPC hereunder shall utilize the Term ~~Loan~~ C Commitment of the Granting Lender to the same extent, and as if, such ~~Term Loan~~ Advance were made by such Granting Lender. Each party hereto hereby agrees that (i) no SPC shall be liable for any indemnity or similar payment obligation under this Agreement for which a Lender would be liable, (ii) no SPC shall be entitled to the benefits of Sections ~~2.09~~ 2.10 and ~~2.11~~ 2.12 (or any other increased costs protection provision) and (iii) the Granting ~~Bank~~ Lender shall for all purposes, ~~including~~ including, without limitation, the approval of any amendment or waiver of any provision of any Loan Document, remain the Lender of record hereunder. In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior Debt of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency, or liquidation proceeding under the laws of the United States or any State thereof. Notwithstanding anything to the contrary contained in this Agreement, any SPC may (i) with notice to, but without prior consent of, ~~BMCA~~ the Borrower and the Administrative Agent and with the payment of a processing fee of $~~500 and without paying any processing fee therefor~~500, assign all or any portion of its interest in any ~~Term Loan~~ Advance to the Granting Lender and (ii) disclose on a confidential basis any non-public information relating to its funding of ~~Term Loan Advance~~ Advances to any rating agency, commercial paper dealer or provider of any surety or guarantee or credit or liquidity enhancement to such SPC. This subsection (k) may not be amended without the prior written consent of each Granting Lender, all or any part of whose ~~Term Loan~~ Advances are being funded by the SPC at the time of such amendment.

Appears in 1 contract

Samples: Second Lien Credit Agreement (US Power Generating CO)

Assignments and Participations. (a) Each Lender ~~may, upon at least five Business Days’ notice to such Lender and the Administrative Agent,~~ may assign to one or more Eligible Assignees all or a portion of its rights and obligations under this Agreement (~~including~~ including, without limitation, all or a portion of its ~~Term Loan~~ Commitment, the ~~Term Loan Advances~~ Loans owing to it and the Note or Notes held by it); provided, ~~however,~~ however that (i) each such assignment shall be of a uniform, and not a varying, percentage of all rights and obligations under ~~this Agreement~~and in respect of its Loan, (ii) except in the case of an assignment to a Person that, immediately prior to such assignment, was a Lender, an Affiliate of any Lender or ~~an Approved~~ a Fund Affiliate of any Lender or an assignment of all of a Lender’s rights and obligations under this Agreement, the aggregate amount of the ~~Term Loan Commitments or Term Loan Advances~~ Commitment being assigned to such Eligible Assignee pursuant to such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $5,000,000 or an integral multiple of $1,000,000 in excess thereof (or such lesser amount as shall be approved by the Administrative Agent and, so long as no Default shall have occurred and be continuing at the time of effectiveness of such assignment, ~~BMCA~~the Borrower), (iii) each such assignment shall be to an Eligible Assignee, (iv) except in the case of an assignment by to a Person that, immediately prior to such assignment, was a Lender, an Affiliate of any Lender or a Fund Affiliate of any Lender, in which case notice of such assignment shall be provided to ~~one of its Affiliates~~the Administrative Agent and the Borrower, no such assignments shall be permitted without the consent, which such consent shall not be unreasonably withheld, of (A) the Administrative Agent ~~and,~~ and (B) so long as no Default or Event of Default shall have occurred and be continuing at the time of the effectiveness of such assignment, ~~BMCA (in each case, which consents shall not be unreasonably withheld)~~ the Borrower and (v) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together with any Note or Notes subject to such assignment ~~and~~ and, except if such assignment is being made by a Lender to an Affiliate or Fund Affiliate of such Lender, a processing and recordation fee of $3,500. (b) Upon such execution, delivery, acceptance and recording, from and after the effective date specified in such 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, have the rights and obligations of a Lender hereunder and (ii) the Lender assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (other than its rights under Sections ~~2.09~~2.10, ~~2.11~~ 2.12, 7.06, 8.05 and ~~8.04~~ 9.04 to the extent any claim thereunder relates to an event arising prior to such assignment) and be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all of the remaining portion of an assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto). (c) By executing and delivering an Assignment and Acceptance, each Lender assignor thereunder and each assignee thereunder confirm to and agree with each other and the other parties thereto and hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with any Loan Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value of, or the perfection or priority of any lien or security interest created or purported to be created under or in connection with, any Loan Document or any other instrument or document furnished pursuant thereto; (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party or the performance or observance by any Loan Party of any of its obligations under any Loan Document or any other instrument or document furnished pursuant thereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 4.01 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) such assignee will, independently and without reliance upon ~~any~~ the Administrative Agent, such assigning Lender or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) such assignee confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes ~~each~~ the Administrative Agent to take such action as agent on its behalf and to exercise such powers and discretion under the Loan Documents as are delegated to ~~such~~ the Administrative Agent by the terms hereof and thereof, together with such powers and discretion as are reasonably incidental thereto; and (vii) such assignee agrees that it will perform in accordance with their terms all of the obligations that by the terms of this Agreement are required to be performed by it as a Lender. (d) The Administrative Agent ~~acting for this purpose (but only for this purpose) as the agent of the Borrowers,~~ shall maintain at its address referred to in Section ~~8.02~~ 9.02 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 Lenders and the ~~Term Loan~~ Commitment ~~of,~~ and principal amount of the ~~Term Loan Advances~~ Loans owing under each Facility 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 ~~Borrowers~~Borrower, the ~~Agents~~ Administrative Agent and the Lenders ~~shall~~ 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~~ Borrower or ~~any~~ the Administrative Agent or any Lender at any reasonable time and from time to time upon reasonable prior notice. (e) Notwithstanding anything to the contrary contained in clause (b) above, the Term Loan Advances (including the Notes evidencing such Term Loan Advances) are registered obligations and the right, title, and interest of the Lenders and their assignees in and to such Term Loan Advances shall be transferable only upon notation of such transfer in the Register. A Note shall only evidence the Lender’s or an assignee’s right title and interest in and to the related Term Loan Advance, and in no event is any such Note to be considered a bearer instrument or obligation. This Section 8.07 shall be construed so that the Term Loan Advances are at all times maintained in “registered form” within the meaning of sections 163(f), 871(h)(2) and 881(c)(2) of the Internal Revenue Code and any related regulations (or any successor provisions of the Internal Revenue Code or such regulations). Solely for purposes of this and for tax purposes only, the Administrative Agent shall act as each Borrower’s agent for purposes of maintaining such notations of transfer in the Register. (f) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee, together with any Note or Notes subject to such assignment, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit C D hereto, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to ~~BMCA and each other Agent~~the Borrower. In the case of any assignment by a Lender, within five Business Days after its receipt of such notice, the ~~Borrowers~~Borrower, at ~~their~~ its own expense, shall, if requested by the ~~assignee~~applicable Lender, execute and deliver to the Administrative Agent in exchange for the surrendered Note or Notes ~~an amended and restated~~ a new Note ~~(which shall be marked “Amended and Restated”)~~ to the order of such Eligible Assignee in an amount equal to the ~~Term Loan~~ Commitment assumed by it ~~under each Facility~~ pursuant to such Assignment and Acceptance and, if any assigning Lender has retained a ~~Term Loan~~ Commitment ~~hereunder under such Facility and has requested~~ hereunder, a ~~replacement Note, an amended and restated~~ new Note to the order of such assigning Lender in an amount equal to the ~~Term Loan~~ Commitment retained by it hereunder. Such ~~amended and restated~~ new Note or ~~Notes~~ Notes, if any, shall be in an aggregate principal amount equal to the aggregate principal amount of such surrendered Note or Notes, shall be dated the effective date of such Assignment and Acceptance and shall otherwise be in substantially the form of Exhibit A hereto. (f) In the event the Borrower requests that certain amendments, modifications or waivers be made to this Agreement or any of the other Loan Documents which request is approved by the Administrative Agent but is not approved by one or more of the Lenders (any such non-consenting Lender shall hereafter be referred to as the “Non-Consenting Lender”), then, within thirty (30) Business Days after the Borrower’s receipt of notice of such disapproval by such Non-Consenting Lender, the Borrower shall have the right as to such Non-Consenting Lender, to be exercised by delivery of written notice delivered to the Administrative Agent and the Non-Consenting Lender within thirty (30) Business Days of receipt of such notice, to elect to cause the Non-Consenting Lender to transfer its Commitment. The Administrative Agent shall promptly notify the remaining Lenders that each of such Lenders shall have the right, but not the obligation, to acquire it Pro Rata Share of the Commitment of the Non-Consenting Lender (or if any of such Lenders does not elect to purchase its Pro Rata Share, then to such remaining Lenders in such proportion as approved by the Administrative Agent). In the event that the Lenders do not elect to acquire all of the Non-Consenting Lender’s Commitment, then the Administrative Agent shall endeavor to find a new Lender or Lenders to acquire such remaining Commitment. Upon any such purchase of the Commitment of the Non-Consenting Lender, the Non-Consenting Lender’s interests in the Obligations and its rights hereunder and under the Loan Documents shall terminate at the date of purchase, and the Non-Consenting Lender shall promptly execute and deliver any and all documents reasonably requested by the Administrative Agent to surrender and transfer such interest, including, without limitation, an Assignment and Acceptance and such Non-Consenting Lender’s original Note, if any. The purchase price for the Non-Consenting Lender’s Commitment shall equal any and all amounts outstanding and owed by Borrower to the Non-Consenting Lender, including principal and all accrued and unpaid interest or fees, plus any applicable amounts payable pursuant to Section 9.04(c) which would be owed to such Non-Consenting Lender if the Loans were to be repaid in full on the date of such purchase of the Non-Consenting Lender’s Commitment (provided that the Borrower may pay to such Non-Consenting Lender any interest, fees or other amounts (other than principal) owing to such Non-Consenting Lender). (g) Each Lender may sell participations to one or more Persons (other than any Loan Party or any of its Affiliates) in or to all or a portion of its rights and obligations under this Agreement (~~including~~ including, without limitation, all or a portion of its ~~Term Loan Commitments~~Commitment, the ~~Term Loan Advances~~ Loans owing to it and the Note or Notes (if any) held by it); provided, ~~however,~~ however that (i) such Lender’s obligations under this Agreement (~~including~~ including, without limitation, its ~~Term Loan Commitments~~Commitment) shall remain unchanged, (ii) 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, (iv) the ~~Borrowers~~Borrower, the ~~Agents~~ Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this ~~Agreement and~~ Agreement, (v) no participant under any such participation shall have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent ~~requires~~ would reduce the ~~consent~~ principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, or postpone any date fixed for any payment of ~~all Lenders~~principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, and (vi) if, at the time of such sale, such Lender was entitled to payments under Section 2.12(a) in respect of United States withholding tax with respect to interest paid at such date, then, to such extent, the term Taxes shall include (in addition to withholding taxes that may be imposed in the future or other amounts otherwise includable in Taxes) United States withholding tax, if any, applicable with respect to such participant on such date, provided that such participant complies with the requirements of Section 2.12(e). (h) Any Lender may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section ~~8.07~~9.07, disclose to the assignee or participant or proposed assignee or participant any information relating to the ~~Borrowers~~ Borrower furnished to such Lender by or on behalf of the ~~Borrowers~~Borrower; provided, ~~however,~~ however 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 received by it from such ~~Lender in accordance with the terms of Section 8.09~~Lender. (i) Notwithstanding any other provision set forth in this Agreement, any Lender may at any time create a security interest in all or any portion of its rights under this Agreement (~~including~~ including, without limitation, the ~~Term Loan Advances~~ Loans 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 System. (j) Notwithstanding anything to the contrary contained herein, any Lender that is a fund that invests in bank loans may create a security interest in all or any portion of the Term Loan Advances owing to it and the Note or Notes held by it to the trustee for holders of obligations owed, or securities issued, by such fund as security for such obligations or securities, provided, that unless and until such trustee actually becomes a Lender in compliance with the other provisions of this Section 8.07, (i) no such pledge shall release the pledging Lender from any of its obligations under the Loan Documents and (ii) such trustee shall not be entitled to exercise any of the rights of a Lender under the Loan Documents even though such trustee may have acquired ownership rights with respect to the pledged interest through foreclosure or otherwise. (k) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Lender”) may grant to a special purpose funding vehicle identified as such in writing from time to time by the Granting Lender to the Administrative Agent and BMCA (an “SPC”) the option to provide all or any part of any Term Loan Advance that such Granting Lender would otherwise be obligated to make pursuant to this Agreement, provided that (i) nothing herein shall constitute a commitment by any SPC to fund any Term Loan Advance, and (ii) if an SPC elects not to exercise such option or otherwise fails to make all or any part of such Term Loan Advance, the Granting Lender shall be obligated to make such Term Loan Advance pursuant to the terms hereof. The making of an Advance by an SPC hereunder shall utilize the Term Loan Commitment of the Granting Lender to the same extent, and as if, such Term Loan Advance were made by such Granting Lender. Each party hereto hereby agrees that (i) no SPC shall be liable for any indemnity or similar payment obligation under this Agreement for which a Lender would be liable, (ii) no SPC shall be entitled to the benefits of Sections 2.09 and 2.11 (or any other increased costs protection provision) and (iii) the Granting Bank shall for all purposes, including the approval of any amendment or waiver of any provision of any Loan Document, remain the Lender of record hereunder. In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior Debt of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency, or liquidation proceeding under the laws of the United States or any State thereof. Notwithstanding anything to the contrary contained in this Agreement, any SPC may (i) with notice to, but without prior consent of, BMCA and the Administrative Agent and with the payment of a processing fee of $500 and without paying any processing fee therefor, assign all or any portion of its interest in any Term Loan Advance to the Granting Lender and (ii) disclose on a confidential basis any non-public information relating to its funding of Term Loan Advance to any rating agency, commercial paper dealer or provider of any surety or guarantee or credit or liquidity enhancement to such SPC. This subsection (k) may not be amended without the prior written consent of each Granting Lender, all or any part of whose Term Loan Advances are being funded by the SPC at the time of such amendment.

Appears in 1 contract

Samples: Senior Secured Term Loan Agreement (American Campus Communities Inc)

Assignments and Participations. (a) Each Lender ~~may, upon at least five Business Days’ notice to such Lender and the Administrative Agent,~~ may assign to one or more Eligible Assignees all or a portion of its rights and obligations under this Agreement (~~including~~ including, without limitation, all or a portion of its ~~Term Loan Commitment~~Commitment or Commitments, the ~~Term Loan~~ Advances owing to it and the Note or Notes held by it); provided, however, that (i) each such assignment shall be of a uniform, and not a varying, percentage of all rights and obligations under ~~this Agreement~~and in respect of any or all Facilities, (ii) except in the case of an assignment to a Person that, immediately prior to such assignment, was a Lender, an Affiliate of any Lender or an Approved Fund of any Lender or an assignment of all of a Lender’s rights and obligations under this Agreement, the aggregate amount of the ~~Term Loan~~ Commitments ~~or Term Loan Advances~~ being assigned to such Eligible Assignee pursuant to such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $~~5,000,000~~ 1,000,000 and shall be an integral multiple of $250,000 in excess thereof (or or, in each case, such lesser amount as shall be approved by the Administrative Agent and, so long as no Event of Default shall have occurred and be continuing at the time of effectiveness of such assignment, ~~BMCA)~~the US Borrower) under each Facility for which a Commitment is being assigned, (iii) each such assignment shall be to an Eligible Assignee, (iv) ~~except in the case of an assignment by a Person that, immediately prior to such assignment, was a Lender, to one of its Affiliates,~~ no such assignments shall be permitted without the consent of the Administrative Agent ~~and, so long as no Default~~ until the Administrative Agent shall have ~~occurred and be continuing at~~ notified the ~~time~~ Lender Parties that syndication of ~~effectiveness of such assignment~~the Commitments hereunder has been completed, ~~BMCA (in each case, which consents shall not be unreasonably withheld) and~~ (v) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together with any Note or Notes subject to such assignment and a processing and recordation fee of $3,500, and (vi) each such Eligible Assignee shall comply with the requirements of Section 2.13(e), if applicable. (b) Upon such execution, delivery, acceptance and recording, from and after the effective date specified in such 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, have the rights and obligations of a Lender or Issuing Bank, as the case may be, hereunder and (ii) the Lender or Issuing Bank assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (other than its rights under Sections ~~2.09~~2.11, ~~2.11~~ 2.13 and 8.04 to the extent any claim thereunder relates to an event arising prior to such assignment) and be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all of the remaining portion of an assigning Lender’s or Issuing Bank’s rights and obligations under this Agreement, such Lender or Issuing Bank shall cease to be a party hereto). (c) By executing and delivering an Assignment and Acceptance, each Lender Party assignor thereunder and each assignee thereunder confirm to and agree with each other and the other parties thereto and hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender Party makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with any Loan Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value of, or the perfection or priority of any lien or security interest created or purported to be created under or in connection with, any Loan Document or any other instrument or document furnished pursuant thereto; (ii) such assigning Lender Party makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party or the performance or observance by any Loan Party of any of its obligations under any Loan Document or any other instrument or document furnished pursuant thereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 4.01 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) such assignee will, independently and without reliance upon any Agent, such assigning Lender Party or any other Lender Party and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) such assignee confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes each Agent to take such action as agent on its behalf and to exercise such powers and discretion under the Loan Documents as are delegated to such Agent by the terms hereof and thereof, together with such powers and discretion as are reasonably incidental thereto; and (vii) such assignee agrees that it will perform in accordance with their terms all of the obligations that by the terms of this Agreement are required to be performed by it as a ~~Lender~~Lender or Issuing Bank, as the case may be. (d) The Administrative ~~Agent~~ Agent, acting for this purpose (but only for this purpose) as the agent of the Borrowers, shall maintain at its address referred to in Section 8.02 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 ~~Lenders~~ Lender Parties and the ~~Term Loan~~ Commitment under each Facility of, and principal amount of the ~~Term Loan~~ Advances owing under each Facility to, each Lender Party from time to time (the “Register”). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrowers, the Agents and the ~~Lenders~~ Lender Parties shall treat each Person whose name is recorded in the Register as a Lender Party hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrowers or any Agent or any Lender Party at any reasonable time and from time to time upon reasonable prior notice. (e) Notwithstanding anything to the contrary contained in clause (b) above, the Term Loan Advances (including the Notes evidencing such Term Loan Advances) are registered obligations and the right, title, and interest of the Lenders and their assignees in and to such Term Loan Advances shall be transferable only upon notation of such transfer in the Register. A Note shall only evidence the Lender’s or an assignee’s right title and interest in and to the related Term Loan Advance, and in no event is any such Note to be considered a bearer instrument or obligation. This Section 8.07 shall be construed so that the Term Loan Advances are at all times maintained in “registered form” within the meaning of sections 163(f), 871(h)(2) and 881(c)(2) of the Internal Revenue Code and any related regulations (or any successor provisions of the Internal Revenue Code or such regulations). Solely for purposes of this and for tax purposes only, the Administrative Agent shall act as each Borrower’s agent for purposes of maintaining such notations of transfer in the Register. (f) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender Party and an assignee, together with any Note or Notes subject to such assignment, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit C hereto, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to ~~BMCA~~ the US Borrower and each other Agent. In the case of any assignment by a Lender, within five Business Days after its receipt of such notice, the ~~Borrowers~~applicable Borrower, at ~~their~~ its own expense, ~~shall, if requested by the assignee,~~ shall execute and deliver to the Administrative Agent in exchange for the surrendered Note or ~~Notes an amended and restated Note~~ Notes, if any, (which shall be marked “~~Amended and Restated~~Cancelled”) an amended and restated Note to the order of such Eligible ~~Assignee~~ Assignee, if requested by such Eligible Assignee, in an amount equal to the ~~Term Loan~~ Commitment assumed by it under each Facility pursuant to such Assignment and Acceptance and, if any assigning Lender has retained a ~~Term Loan~~ Commitment hereunder under such ~~Facility and has requested a replacement Note~~Facility, an amended and restated Note to the order of such assigning ~~Lender~~ Lender, if requested by such assigning Lender, in an amount equal to the ~~Term Loan~~ Commitment retained by it hereunder. Such amended and restated Note or ~~Notes~~ Notes, if any, shall be in an aggregate principal amount equal to the aggregate principal amount of such surrendered Note or Notes, if any, shall be dated the effective date of such Assignment and Acceptance and shall otherwise be in substantially the form of Exhibit A X-0, X-0 or A-3 hereto, as the case may be. (f) Each Issuing Bank may assign to one or more Eligible Assignees all or a portion of its rights and obligations under the undrawn portion of its Letter of Credit Commitment at any time; provided, however, that (i) except in the case of an assignment to a Person that immediately prior to such assignment was an Issuing Bank or an assignment of all of an Issuing Bank’s rights and obligations under this Agreement, the amount of the Letter of Credit Commitment of the assigning Issuing Bank being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $1,000,000 and shall be in an integral multiple of $1,000,000 in excess thereof, (ii) each such assignment shall be to an Eligible Assignee and (iii) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together with a processing and recordation fee of $3,500. (g) Each Lender Party may sell participations to one or more Persons (other than any Loan Party or any of its ~~Affiliates~~Affiliates or any other Person who is or whose Affiliates are primarily engaged in the transportation industry and is a direct competitor of any Loan Party) in or to all or a portion of its rights and obligations under this Agreement (~~including~~ including, without limitation, all or a portion of its ~~Term Loan~~ Commitments, the ~~Term Loan~~ Advances owing to it and the Note or Notes (if any) held by it); provided, however, that (i) such ~~Lender~~Lender Party’s obligations under this Agreement (~~including~~ including, without limitation, its ~~Term Loan~~ Commitments) shall remain unchanged, (ii) such Lender Party shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) such Lender Party shall remain the holder of any such Note for all purposes of this Agreement, (iv) the Borrowers, the Agents and the other ~~Lenders~~ Lender Parties shall continue to deal solely and directly with such Lender Party in connection with such ~~Lender~~Lender Party’s rights and obligations under this Agreement and (v) no participant under any such participation shall have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent ~~requires~~ would reduce the ~~consent~~ principal of, or interest on, the Notes or the Advances or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, postpone any date fixed for any payment of ~~all Lenders~~principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation. (h) Any Lender Party may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section 8.07, disclose to the assignee or participant or proposed assignee or participant any information relating to the Borrowers furnished to such Lender Party by or on behalf of ~~the Borrowers~~any Borrower; provided, however, 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 received by it from such Lender ~~in accordance with the terms of Section 8.09~~Party. (i) Notwithstanding any other provision set forth in this Agreement, any Lender Party may at any time create a security interest in all or any portion of its rights under this Agreement (~~including~~ including, without limitation, the ~~Term Loan~~ 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 System. (j) Notwithstanding anything to the contrary contained herein, any Lender that is a fund that invests in bank loans ~~may~~ may, without the consent of the Borrowers or the Administrative Agent, create a security interest in all or any portion of the ~~Term Loan~~ Advances owing to it and the Note or Notes held by it to the trustee for holders of obligations owed, or securities issued, by such fund as security for such obligations or securities, provided, that unless and until such trustee actually becomes a Lender in compliance with the other provisions of this Section 8.07, (i) no such pledge shall release the pledging Lender from any of its obligations under the Loan Documents and (ii) such trustee shall not be entitled to exercise any of the rights of a Lender under the Loan Documents even though such trustee may have acquired ownership rights with respect to the pledged interest through foreclosure or otherwise. (k) Notwithstanding anything to the contrary contained herein, any Lender Party (a “Granting Lender”) may grant to a special purpose funding vehicle identified as such in writing from time to time by the Granting Lender to the Administrative Agent and ~~BMCA~~ the US Borrower (an “SPC”) the option to provide all or any part of any ~~Term Loan~~ Advance that such Granting Lender would otherwise be obligated to make pursuant to this Agreement; provided, ~~provided~~ that (i) nothing herein shall constitute a commitment by any SPC to fund any ~~Term Loan~~ Advance, and (ii) if an SPC elects not to exercise such option or otherwise fails to make all or any part of such ~~Term Loan~~ Advance, the Granting Lender shall be obligated to make such ~~Term Loan~~ Advance pursuant to the terms hereof. The making of an Advance by an SPC hereunder shall utilize the ~~Term Loan~~ Commitment of the Granting Lender to the same extent, and as if, such ~~Term Loan~~ Advance were made by such Granting Lender. Each party hereto hereby agrees that (i) no SPC shall be liable for any indemnity or similar payment obligation under this Agreement for which a Lender Party would be liable provided such Granting Lender remains liable, (ii) no SPC shall be entitled to the benefits of Sections ~~2.09~~ 2.11 and ~~2.11~~ 2.13 (or any other increased costs protection provision) and (iii) the Granting ~~Bank~~ Lender shall for all purposes, ~~including~~ including, without limitation, the approval of any amendment or waiver of any provision of any Loan Document, remain the Lender Party of record hereunder. In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior Debt of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency, or liquidation proceeding under the laws of the United States or any State thereof. Notwithstanding anything to the contrary contained in this Agreement, any SPC may (i) with notice to, but without prior consent of, ~~BMCA~~ the Borrowers and the Administrative Agent and with the payment of a processing fee of $500 ~~and without paying any processing fee therefor~~to the Administrative Agent, assign all or any portion of its interest in any ~~Term Loan~~ Advance to the Granting Lender and (ii) disclose on a confidential basis any non-public information relating to its funding of ~~Term Loan Advance~~ Advances to any rating agency, commercial paper dealer or provider of any surety or guarantee or credit or liquidity enhancement to such SPC. This subsection (k) may not be amended without the prior written consent of each Granting Lender, all or any part of whose ~~Term Loan~~ Advances are being funded by the SPC at the time of such amendment.

Appears in 1 contract

Samples: Credit Agreement (Laidlaw International Inc)

Assignments and Participations. (a) Each Lender ~~may~~may and, so long as no Default shall have occurred and be continuing, if demanded by the Borrower (following a demand by such Lender pursuant to Section 2.10 or 2.12) upon at least five Business Days’ ' notice to such Lender and the Administrative ~~Agent~~Agent will, assign to one or more Eligible Assignees all or a portion of its rights and obligations under this Agreement and the other Loan Documents (~~including~~ including, without limitation, all or a portion of its ~~Term Loan Commitment~~Commitment or Commitments, the ~~Term Loan~~ Advances owing to it and the Note or Notes held by it); provided, however, that (i~~) each such assignment shall be of a uniform, and not a varying, percentage of all rights and obligations under this Agreement, (ii~~) except in the case of an assignment to a Person that, immediately prior to such assignment, was a Lender, an Affiliate of any Lender or an Approved Fund of any Lender or an assignment of all of a Lender’s 's rights and obligations under this Agreement, the aggregate amount of the ~~Term Loan~~ Commitments ~~or Term Loan Advances~~ being assigned to such Eligible Assignee pursuant to such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $~~5,000,000~~ 1,000,000 (or or, in each case, such lesser amount as shall be approved by the Administrative Agent and, so long as no Default shall have occurred and be continuing at the time of effectiveness of such assignment, ~~BMCA)~~the Borrower) under each Facility for which a Commitment is being assigned, (~~iii~~ii) each such assignment shall be to an Eligible Assignee, (iv) except in the case of an assignment by a Person that, immediately prior to such assignment, was a Lender, to one of its Affiliates, no such assignments shall be permitted without the consent of the Administrative Agent and, so long as no Default shall have occurred and be continuing at the time of effectiveness of such assignment, BMCA (in each case, which consents shall not be unreasonably withheld) Assignee and (viii) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together with any Note or Notes subject to such assignment and (except in the case of an assignment to a Person that, immediately prior to such assignment, was an Affiliate or an Approved Fund of the assigning Lender) a processing and recordation fee of $3,500. (b) Upon such execution, delivery, acceptance and recording, from and after the effective date specified in such 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, have the rights and obligations of a Lender or the Issuing Bank, as the case may be, hereunder and (ii) the Lender or the Issuing Bank assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (other than its rights under Sections ~~2.09~~2.10, ~~2.11~~ 2.12 and 8.04 to the extent any claim thereunder relates to an event arising prior to such assignment) and be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all of the remaining portion of an assigning Lender’s 's or the Issuing Bank's rights and obligations under this Agreement, such Lender or the Issuing Bank shall cease to be a party hereto). (c) By executing and delivering an Assignment and Acceptance, each Lender Party assignor thereunder and each assignee thereunder confirm to and agree with each other and the other parties thereto and hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender Party makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with any Loan Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value of, or the perfection or priority of any lien or security interest created or purported to be created under or in connection with, any Loan Document or any other instrument or document furnished pursuant thereto; (ii) such assigning Lender Party makes no representation or warranty and assumes no responsibility with respect to the <PAGE> 77 financial condition of any Loan Party or the performance or observance by any Loan Party of any of its obligations under any Loan Document or any other instrument or document furnished pursuant thereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 4.01 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) such assignee will, independently and without reliance upon any Agent, such assigning Lender Party or any other Lender Party and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) such assignee confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes each Agent to take such action as agent on its behalf and to exercise such powers and discretion under the Loan Documents as are delegated to such Agent by the terms hereof and thereof, together with such powers and discretion as are reasonably incidental thereto; and (vii) such assignee agrees that it will perform in accordance with their terms all of the obligations that by the terms of this Agreement are required to be performed by it as a ~~Lender~~Lender or the Issuing Bank, as the case may be. (d) The Administrative Agent ~~acting for this purpose (but only for this purpose) as the agent of the Borrowers,~~ shall maintain at its address referred to in Section 8.02 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 ~~Lenders~~ Lender Parties and the ~~Term Loan~~ Commitment under each Facility of, and principal amount of the ~~Term Loan~~ Advances owing under each Facility to, each Lender Party from time to time (the “"Register”"). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the ~~Borrowers~~Borrower, the Agents and the ~~Lenders shall~~ Lender Parties may treat each Person whose name is recorded in the Register as a Lender Party hereunder for all purposes of this Agreement. The Register shall be available for inspection by the ~~Borrowers~~ Borrower or any Agent or any Lender Party at any reasonable time and from time to time upon reasonable prior notice. (e) Notwithstanding anything to the contrary contained in clause (b) above, the Term Loan Advances (including the Notes evidencing such Term Loan Advances) are registered obligations and the right, title, and interest of the Lenders and their assignees in and to such Term Loan Advances shall be transferable only upon notation of such transfer in the Register. A Note shall only evidence the Lender’s or an assignee’s right title and interest in and to the related Term Loan Advance, and in no event is any such Note to be considered a bearer instrument or obligation. This Section 8.07 shall be construed so that the Term Loan Advances are at all times maintained in “registered form” within the meaning of sections 163(f), 871(h)(2) and 881(c)(2) of the Internal Revenue Code and any related regulations (or any successor provisions of the Internal Revenue Code or such regulations). Solely for purposes of this and for tax purposes only, the Administrative Agent shall act as each Borrower’s agent for purposes of maintaining such notations of transfer in the Register. (f) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender Party and an assignee, together with any Note or Notes subject to such assignment, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit C hereto, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to ~~BMCA~~ the Borrower and each other Agent. In the case of any assignment by a Lender, within five Business Days after its receipt of such notice, the ~~Borrowers~~Borrower, at ~~their~~ its own expense, ~~shall, if requested by the assignee,~~ shall execute and deliver to the Administrative Agent in exchange for the surrendered Note or Notes ~~an amended and restated~~ a new Note ~~(which shall be marked “Amended and Restated”)~~ to the order of such Eligible Assignee in an amount equal to the ~~Term Loan~~ Commitment assumed by it under each Facility pursuant to such Assignment and Acceptance and, if any assigning Lender has retained a ~~Term Loan~~ Commitment hereunder under such ~~Facility and has requested~~ Facility, a ~~replacement Note, an amended and restated~~ new Note to the order of such assigning Lender in an amount equal to the ~~Term Loan~~ Commitment retained by it hereunder. Such ~~amended and restated~~ 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 Assignment and Acceptance and shall otherwise be in substantially the form of Exhibit A A-1 or A-2 hereto, as the case may be. (f) The Issuing Bank may assign to an Eligible Assignee all of its rights and obligations under the undrawn portion of its Letter of Credit Commitment at any time; provided, however, that (i) each such assignment shall be to an Eligible Assignee and (ii) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together with a processing and recordation fee of $3,500. (g) Each Lender Party may sell participations to one or more Persons (other than any Loan Party or any of its Affiliates) in or to all or a portion of its rights and obligations under this Agreement (~~including~~ including, without limitation, all or a portion of its ~~Term Loan~~ Commitments, the ~~Term Loan~~ Advances owing to it and the Note or Notes (if any) held by it); provided, however, that (i) such ~~Lender’s~~ Lender Party's obligations under this Agreement (~~including~~ including, without limitation, its ~~Term Loan~~ Commitments) shall remain unchanged, (ii) such <PAGE> 78 Lender Party shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) such Lender Party shall remain the holder of any such Note for all purposes of this Agreement, (iv) the ~~Borrowers~~Borrower, the Agents and the other ~~Lenders~~ Lender Parties shall continue to deal solely and directly with such Lender Party in connection with such ~~Lender’s~~ Lender Party's rights and obligations under this Agreement and (v) no participant under any such participation shall have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent ~~requires~~ would reduce the ~~consent~~ principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, postpone any date fixed for any payment of principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, or release all ~~Lenders~~or substantially all of the Collateral. (h) Any Lender Party may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section 8.07, disclose to the assignee or participant or proposed assignee or participant any information relating to the ~~Borrowers~~ Borrower furnished to such Lender Party by or on behalf of the ~~Borrowers~~Borrower; provided, however, 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 received by it from such Lender ~~in accordance with the terms of Section 8.09~~Party. (i) Notwithstanding any other provision set forth in this Agreement, any Lender Party may at any time create a security interest in all or any portion of its rights under this Agreement and the other Loan Documents (~~including~~ including, without limitation, the ~~Term Loan~~ 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 System. (j) Notwithstanding anything to the contrary contained herein, any Lender that is a fund that invests in bank loans may create a security interest in all or any portion of the ~~Term Loan~~ Advances owing to it and the Note or Notes held by it to the trustee for holders of obligations owed, or securities issued, by such fund as security for such obligations or securities, provided, that unless and until such trustee actually becomes a Lender in compliance with the other provisions of this Section 8.07, (i) no such pledge shall release the pledging Lender from any of its obligations under the Loan Documents and (ii) such trustee shall not be entitled to exercise any of the rights of a Lender under the Loan Documents even though such trustee may have acquired ownership rights with respect to the pledged interest through foreclosure or otherwise. (k) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Lender”) may grant to a special purpose funding vehicle identified as such in writing from time to time by the Granting Lender to the Administrative Agent and BMCA (an “SPC”) the option to provide all or any part of any Term Loan Advance that such Granting Lender would otherwise be obligated to make pursuant to this Agreement, provided that (i) nothing herein shall constitute a commitment by any SPC to fund any Term Loan Advance, and (ii) if an SPC elects not to exercise such option or otherwise fails to make all or any part of such Term Loan Advance, the Granting Lender shall be obligated to make such Term Loan Advance pursuant to the terms hereof. The making of an Advance by an SPC hereunder shall utilize the Term Loan Commitment of the Granting Lender to the same extent, and as if, such Term Loan Advance were made by such Granting Lender. Each party hereto hereby agrees that (i) no SPC shall be liable for any indemnity or similar payment obligation under this Agreement for which a Lender would be liable, (ii) no SPC shall be entitled to the benefits of Sections 2.09 and 2.11 (or any other increased costs protection provision) and (iii) the Granting Bank shall for all purposes, including the approval of any amendment or waiver of any provision of any Loan Document, remain the Lender of record hereunder. In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior Debt of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency, or liquidation proceeding under the laws of the United States or any State thereof. Notwithstanding anything to the contrary contained in this Agreement, any SPC may (i) with notice to, but without prior consent of, BMCA and the Administrative Agent and with the payment of a processing fee of $500 and without paying any processing fee therefor, assign all or any portion of its interest in any Term Loan Advance to the Granting Lender and (ii) disclose on a confidential basis any non-public information relating to its funding of Term Loan Advance to any rating agency, commercial paper dealer or provider of any surety or guarantee or credit or liquidity enhancement to such SPC. This subsection (k) may not be amended without the prior written consent of each Granting Lender, all or any part of whose Term Loan Advances are being funded by the SPC at the time of such amendment.

Appears in 1 contract

Samples: Credit Agreement (Esterline Technologies Corp)

Assignments and Participations. (a) Each Lender ~~may, upon at least five Business Days’ notice to such Lender and the Administrative Agent,~~ may assign to one or more Eligible Assignees all or a portion of its rights and obligations under this Agreement (~~including~~ including, without limitation, all or a portion of its ~~Term Loan~~ Commitment, the ~~Term Loan Advances~~ Advance owing to it and the Note ~~or Notes~~ held by it); provided, however, that (i) each such assignment shall be of a uniform, and not a varying, percentage of all rights and obligations under ~~this Agreement~~and in respect of the Facility, (ii) except in the case of an assignment to a Person that, immediately prior to such assignment, was a Lender, an Affiliate of any Lender or an Approved Fund of any Lender or an assignment of all of a Lender’s rights and obligations under this Agreement, the aggregate amount of the ~~Term Loan~~ Commitments ~~or Term Loan Advances~~ being assigned to such Eligible Assignee pursuant to such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $~~5,000,000~~ 1,000,000 (or such lesser amount as shall be approved by the Administrative Agent and, so long as no Default shall have occurred and be continuing at the time of effectiveness of such assignment, ~~BMCA~~the Borrower); provided that such minimum amount shall be aggregated for two or more simultaneous assignments by or to two or more Approved Funds or Affiliates, (iii) each such assignment shall be to an Eligible Assignee, (iv) ~~except in the case of an assignment by a Person that, immediately prior to such assignment, was a Lender, to one of its Affiliates,~~ no such assignments shall be permitted without the consent of the Administrative Agent ~~and, so long as no Default~~ until the Administrative Agent shall have ~~occurred and be continuing at~~ notified the ~~time~~ Lenders that syndication of ~~effectiveness of such assignment~~the Facility hereunder has been completed, ~~BMCA (in each case, which consents shall not be unreasonably withheld)~~ and (v) the parties to each such assignment shall (A) electronically execute and deliver to the Administrative Agent an Assignment and Acceptance via an electronic loan assignment confirmation system acceptable to the Administrative Agent (which initially shall be ClearPar, LLC) or (B) if no such system shall then be specified by the Administrative Agent, manually execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together with any Note ~~or Notes~~ (if any) subject to such assignment and a processing and recordation fee of $3,500. (b) Upon such execution, delivery, acceptance and recording, from and after the effective date specified in such 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, have the rights and obligations of a Lender hereunder and (ii) the Lender assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (other than its rights under Sections ~~2.09~~2.07, ~~2.11~~ 2.09 and ~~8.04~~ 9.04 to the extent any claim thereunder relates to an event arising prior to such assignment) and be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all of the remaining portion of an assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto). (c) By executing and delivering an Assignment and Acceptance, each Lender assignor thereunder and each assignee thereunder confirm to and agree with each other and the other parties thereto and hereto as follows: (i) ~~other than~~ Such Lender warrants that it is the legal and beneficial owner of the interest being assigned thereby free and clear of any adverse claim and that its Commitment, and the outstanding balance of its Advances, without giving effect to assignments thereof which have not become effective, are as ~~provided~~ set forth in such Assignment and Acceptance, (ii) except as set forth in (i) above, 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 any Loan Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value of, or the perfection or priority of any lien or security interest created or purported to be created under or in connection with, any Loan Document or any other instrument or document furnished pursuant ~~thereto; (ii) such assigning Lender makes no representation~~ thereto or ~~warranty and assumes no responsibility with respect to~~ the financial condition of any Loan Party or the performance or observance by any Loan Party of any of its obligations under any Loan Document or any other instrument or document furnished pursuant thereto; (iii) such assignee represents and warrants that it is legally authorized to enter into such Assignment and Acceptance; (iv) such assignee confirms that it has received a copy of this Agreement, together with copies of the most recent financial statements referred to in Section 4.01 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (ivv) such assignee will, independently and without reliance upon any 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; (vvi) such assignee confirms that it is an Eligible Assignee; (vivii) such assignee appoints and authorizes each Agent to take such action as agent on its behalf and to exercise such powers and discretion under the Loan Documents as are delegated to such Agent by the terms hereof and thereof, together with such powers and discretion as are reasonably incidental thereto; and (~~vii~~viii) such assignee agrees that it will perform in accordance with their terms all of the obligations that by the terms of this Agreement are required to be performed by it as a Lender. (d) The Administrative ~~Agent~~ Agent, acting for this purpose (but only for this purpose) as the agent of the ~~Borrowers~~Borrower, shall maintain at its address referred to in Section 8.02 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 Lenders and the ~~Term Loan~~ Commitment of, and principal amount of the ~~Term Loan~~ Advances owing under the Facility 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 ~~Borrowers~~Borrower, the Agents and the Lenders ~~shall~~ 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~~ Borrower or any Agent or any Lender at any reasonable time and from time to time upon reasonable prior notice. (e) Notwithstanding anything to the contrary contained in clause (b) above, the Term Loan Advances (including the Notes evidencing such Term Loan Advances) are registered obligations and the right, title, and interest of the Lenders and their assignees in and to such Term Loan Advances shall be transferable only upon notation of such transfer in the Register. A Note shall only evidence the Lender’s or an assignee’s right title and interest in and to the related Term Loan Advance, and in no event is any such Note to be considered a bearer instrument or obligation. This Section 8.07 shall be construed so that the Term Loan Advances are at all times maintained in “registered form” within the meaning of sections 163(f), 871(h)(2) and 881(c)(2) of the Internal Revenue Code and any related regulations (or any successor provisions of the Internal Revenue Code or such regulations). Solely for purposes of this and for tax purposes only, the Administrative Agent shall act as each Borrower’s agent for purposes of maintaining such notations of transfer in the Register. (f) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee, an Administrative Questionnaire completed in respect of the assignee (unless the assignee shall already be a Lender hereunder), the processing and recordation fee referred to in paragraph (b) of this Section 8.07, any applicable tax forms and together with any Note ~~or Notes~~ (if any) subject to such assignment, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit C hereto, (i) accept such Assignment and ~~Acceptance,~~ Acceptance and (ii) record the information contained therein in the ~~Register and (iii) give prompt notice thereof to BMCA and each other Agent~~Register. In the case of any assignment by a Lender, within five Business Days after its receipt of such notice, the ~~Borrowers~~Borrower, at ~~their~~ its own expense, ~~shall, if requested by the assignee,~~ shall execute and deliver to the Administrative Agent in exchange for the surrendered Note ~~or Notes an amended and restated~~ (if any) a new Note ~~(which shall be marked “Amended and Restated”)~~ to the order of such Eligible Assignee in an amount equal to the ~~Term Loan Commitment assumed by~~ Advances assigned to it under ~~each~~ the Facility pursuant to such Assignment and Acceptance and, if any assigning Lender that had a Note prior to such assignment has retained ~~a Term Loan Commitment~~ Advances hereunder under ~~such Facility and has requested~~ the Facility, a ~~replacement Note, an amended and restated~~ new Note to the order of such assigning Lender in an amount equal to ~~the Term Loan Commitment~~ Advances retained by it hereunder. Such ~~amended and restated~~ 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 Assignment and Acceptance and shall otherwise be in substantially the form of Exhibit A hereto. No assignment shall be effective unless it has been recorded in the Register as provided in this paragraph (e). (gf) Each Lender may sell participations to one or more Persons (other than any Loan Party or any of its Affiliates) in or to all or a portion of its rights and obligations under this Agreement (~~including all or a portion of its Term Loan Commitments~~including, without limitation, the ~~Term Loan~~ Advances owing to it and the Note ~~or Notes~~ (if any) held by it); provided, however, that (i) such Lender’s obligations under this Agreement ~~(including its Term Loan Commitments)~~ shall remain unchanged, (ii) 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, (iv) the ~~Borrowers~~Borrower, the Agents and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and (v) no participant under any such participation shall have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent ~~requires~~ would reduce the ~~consent~~ principal of, or interest on, the Advances or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, postpone any date fixed for any payment of principal of, or interest on, the Advances or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, or release all ~~Lenders~~or substantially all of the Collateral. (hg) Any Lender may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section 8.07, disclose to the assignee or participant or proposed assignee or participant any information relating to the ~~Borrowers~~ Borrower furnished to such Lender by or on behalf of the ~~Borrowers~~Borrower; provided, however, 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 received by it from such ~~Lender in accordance with the terms of Section 8.09~~Lender. (ih) Notwithstanding any other provision set forth in this Agreement, any Lender may at any time create a security interest in all or any portion of its rights under this Agreement (~~including~~ including, without limitation, the ~~Term Loan~~ Advances owing to it and the Note ~~or Notes~~ (if any) held by it) in favor of any Federal Reserve Bank in accordance with Regulation A of the Board of Governors of the Federal Reserve System; provided that no such pledge or assignment shall release such Lender from any of its obligations hereunder or substitute any such pledge or assignee for such Lender as a party hereto. (ji) Notwithstanding anything to the contrary contained herein, any Lender that is a ~~fund that invests in bank loans~~ Fund may create a security interest in all or any portion of the ~~Term Loan~~ Advances owing to it and ~~the~~ any Note ~~or Notes~~ held by it to the trustee for holders of obligations owed, or securities issued, by such ~~fund~~ Fund as security for such obligations or securities~~, provided,~~ ; provided that unless and until such trustee actually becomes a Lender in compliance with the other provisions of this Section 8.07, (i) no such pledge shall release the pledging Lender from any of its obligations under the Loan Documents and (ii) such trustee shall not be entitled to exercise any of the rights of a Lender under the Loan Documents even though such trustee may have acquired ownership rights with respect to the pledged interest through foreclosure or otherwise. (kj) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Lender”) may grant to a special purpose funding vehicle identified as such in writing from time to time by the Granting Lender to the Administrative Agent and ~~BMCA~~ the Borrower (an “SPC”) the option to provide all or any part of ~~any Term Loan~~ the Advance that such Granting Lender would otherwise be obligated to make pursuant to this Agreement, ; provided that (i) nothing herein shall constitute a commitment by any SPC to fund ~~any Term Loan Advance,~~ the Advance and (ii) if an SPC elects not to exercise such option or otherwise fails to make all or any part of such ~~Term Loan~~ Advance, the Granting Lender shall be obligated to make such ~~Term Loan~~ Advance pursuant to the terms hereof. The making of an Advance by an SPC hereunder shall utilize the ~~Term Loan~~ Commitment of the Granting Lender to the same extent, and as if, such ~~Term Loan~~ Advance were made by such Granting Lender. Each party hereto hereby agrees that (i) no SPC shall be liable for any indemnity or similar payment obligation under this Agreement for which a Lender would be liable, (ii) no SPC shall be entitled to the benefits of Sections 2.07 and 2.09 ~~and 2.11~~ (or any other increased costs protection provision) and (iii) the Granting ~~Bank~~ Lender shall for all purposes, ~~including~~ including, without limitation, the approval of any amendment or waiver of any provision of any Loan Document, remain the Lender of record hereunder. In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior Debt of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency, or liquidation proceeding under the laws of the United States or any State thereof. Notwithstanding anything to the contrary contained in this Agreement, any SPC may (i) with notice to, but without prior consent of, ~~BMCA~~ the Borrower and the Administrative Agent ~~and with the payment of a processing fee of $500~~ and without paying any processing fee ~~therefor~~therefore, assign all or any portion of its interest in ~~any Term Loan~~ the Advance to the Granting Lender and (ii) disclose on a confidential basis any non-public information relating to its funding of ~~Term Loan Advance~~ Advances to any rating agency, commercial paper dealer or provider of any surety or guarantee or credit or liquidity enhancement to such SPC. This subsection (kj) may not be amended without the prior written consent of each Granting Lender, all or any part of whose ~~Term Loan~~ Advances are being funded by the SPC at the time of such amendment. (k) The Borrower shall not assign or delegate any of its rights or duties hereunder without the prior written consent of the Administrative Agent and each Lender, and any such attempted assignment without such consent shall be null and void.

Appears in 1 contract

Samples: Credit Agreement (Cheniere Energy Inc)

Assignments and Participations. (a) Each Lender ~~may~~may and, so long as no Default shall have occurred and be continuing, if demanded by the Borrower (following a demand by such Lender pursuant to Section 2.09 or 2.11) upon at least five Business Days’ notice to such Lender and the Administrative Agent, will assign to one or more Eligible Assignees all or a portion of its rights and obligations under this Agreement (~~including~~ including, without limitation, all or a portion of its ~~Term Loan Commitment~~Commitment or Commitments, the ~~Term Loan Advances~~ Senior Unsecured Obligations owing to it and the Note or Notes held by it); provided, however, that (i) each such assignment shall be of a uniform, and not a varying, percentage of all rights and obligations under ~~this Agreement~~and in respect of one or more Facilities, (ii) except in the case of an assignment to a Person that, immediately prior to such assignment, was a Lender, an Affiliate of any Lender or an Approved Fund of any Lender or an assignment of all of a Lender’s rights and obligations under this Agreement, the aggregate amount of the ~~Term Loan~~ Commitments ~~or Term Loan Advances~~ being assigned to such Eligible Assignee pursuant to such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than ~~$5,000,000~~ U.S.$1,000,000 (or such lesser amount as agreed to by the Borrower and the Administrative Agent), (iii) except in the case of an assignment to a Person that, immediately prior to such assignment, was a Lender, an Affiliate of any Lender or an Approved Fund of any Lender, such assignment shall be approved by the Administrative Agent and, so long as no Default shall have occurred and be continuing at the time of effectiveness of such assignment, ~~BMCA~~the Borrower (such approvals not to be unreasonably withheld or delayed), (~~iii~~iv) each such assignment shall be to an Eligible ~~Assignee~~Assignee (except as otherwise provided in (iii) above), (ivv) ~~except in~~ each such assignment made as a result of a demand by the ~~case of an assignment by a Person that, immediately prior~~ Borrower pursuant to ~~such assignment, was a Lender, to one of its Affiliates, no such assignments~~ this Section 9.07(a) shall be ~~permitted without~~ arranged by the ~~consent of~~ Borrower after consultation with the Administrative Agent ~~and~~and shall be either an assignment of all of the rights and obligations of the assigning Lender under this Agreement or an assignment of a portion of such rights and obligations made concurrently with another such assignment or other such assignments that together cover all of the rights and obligations of the assigning Lender under this Agreement, ~~so long~~ (vi) no Lender shall be obligated to make any such assignment as ~~no Default~~ a result of a demand by the Borrower pursuant to this Section 9.07(a) unless and until such Lender shall have ~~occurred and be continuing~~ received one or more payments from either the Borrower or one or more Eligible Assignees in an aggregate amount at least equal to the ~~time~~ aggregate outstanding principal amount of ~~effectiveness~~ the Senior Unsecured Obligations owing to such Lender, together with accrued interest thereon to the date of payment of such ~~assignment~~principal amount and all other amounts payable to such Lender under this Agreement, ~~BMCA~~ (~~in each case, which consents shall not be unreasonably withheld) and (v~~vii) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together with any Note or Notes subject to such assignment and a (viii) no consent of the Borrower shall be required for any reason with respect to assignments made in connection with the primary syndication hereunder. No processing ~~and~~ or recordation fee ~~of $3,500~~shall be due. (b) Upon such execution, delivery, acceptance and recording, from and after the effective date specified in such 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, have the rights and obligations of a ~~Lender~~ Lender, hereunder and (ii) the Lender assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (other than its rights under Sections 2.09, 2.11 and ~~8.04~~ 9.04 to the extent any claim thereunder relates to an event arising prior to such assignment) and be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all of the remaining portion of an assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto). (c) By executing and delivering an Assignment and Acceptance, each Lender assignor thereunder and each assignee thereunder confirm to and agree with each other and the other parties thereto and hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with any Loan Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value of, or the perfection or priority of any lien or security interest created or purported to be created under or in connection with, any Loan Document or any other instrument or document furnished pursuant thereto; (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party or the performance or observance by any Loan Party of any of its obligations under any Loan Document or any other instrument or document furnished pursuant thereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 4.01 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) such assignee will, independently and without reliance upon any Agent, such assigning Lender or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) such assignee confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes each Agent to take such action as agent on its behalf and to exercise such powers and discretion under the Loan Documents as are delegated to such Agent by the terms hereof and thereof, together with such powers and discretion as are reasonably incidental thereto; and (vii) such assignee agrees that it will perform in accordance with their terms all of the obligations that by the terms of this Agreement are required to be performed by it as a Lender. (d) The Administrative Agent shall, acting for this purpose (but only for this purpose) as the agent of the ~~Borrowers~~Borrower, ~~shall~~ maintain at its address referred to in Section ~~8.02~~ 9.02 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 Lenders and the ~~Term Loan~~ Commitment under the Facility of, and principal amount of the ~~Term Loan~~ 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 ~~Borrowers~~Borrower, the Agents and the Lenders ~~shall~~ 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~~ Borrower or any Agent or any Lender at any reasonable time and from time to time upon reasonable prior notice. (e) Notwithstanding anything to the contrary contained in clause (b) above, the Term Loan Advances (including the Notes evidencing such Term Loan Advances) are registered obligations and the right, title, and interest of the Lenders and their assignees in and to such Term Loan Advances shall be transferable only upon notation of such transfer in the Register. A Note shall only evidence the Lender’s or an assignee’s right title and interest in and to the related Term Loan Advance, and in no event is any such Note to be considered a bearer instrument or obligation. This Section 8.07 shall be construed so that the Term Loan Advances are at all times maintained in “registered form” within the meaning of sections 163(f), 871(h)(2) and 881(c)(2) of the Internal Revenue Code and any related regulations (or any successor provisions of the Internal Revenue Code or such regulations). Solely for purposes of this and for tax purposes only, the Administrative Agent shall act as each Borrower’s agent for purposes of maintaining such notations of transfer in the Register. (f) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee, together with any Note or Notes subject to such assignment, the Administrative Agent shall, if such Assignment and Acceptance has been completed and approved as required by Section 9.07(a) and is in substantially the form of Exhibit C hereto, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to ~~BMCA~~ the Borrower and each other Agent. Any assignment of any Advance, whether or not evidenced by a Note, shall be effective only upon appropriate entries with respect thereto. In the case of any assignment by a Lender, within five Business Days after its receipt of such notice, the ~~Borrowers~~Borrower, at ~~their~~ its own expense, ~~shall, if requested by the assignee,~~ shall execute and deliver to the Administrative Agent in exchange for the surrendered Note or Notes ~~an amended and restated~~ a new Note ~~(which shall be marked “Amended and Restated”)~~ to the order of such Eligible Assignee in an amount equal to the ~~Term Loan~~ Commitment assumed by it under ~~each~~ the Facility pursuant to such Assignment and Acceptance and, if any assigning Lender has retained a ~~Term Loan~~ Commitment hereunder under ~~such Facility and has requested~~ the Facility, a ~~replacement Note, an amended and restated~~ new Note to the order of such assigning Lender in an amount equal to the ~~Term Loan~~ Commitment retained by it hereunder. Such ~~amended and restated~~ 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 Assignment and Acceptance and shall otherwise be in substantially the form of Exhibit A hereto. (gf) Each Lender ~~may~~ may, without notice to or consent of the Borrower or the Administrative Agent, sell participations to one or more Persons (other than any Loan Party or any of its Affiliates) in or to all or a portion of its rights and obligations under this Agreement (~~including~~ including, without limitation, all or a portion of its ~~Term Loan~~ Commitments, the ~~Term Loan Advances~~ Senior Unsecured Obligations owing to it and the Note or Notes (if any) held by it); provided, however, that (i) such Lender’s obligations under this Agreement (~~including~~ including, without limitation, its ~~Term Loan~~ Commitments) shall remain unchanged, (ii) 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, (iv) the ~~Borrowers~~Borrower, the Agents and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and (v) no participant under any such participation shall have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent ~~requires~~ would reduce the ~~consent~~ principal of, or interest on, the Senior Unsecured Obligations or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, postpone any date fixed for any payment of principal of, or interest on, the Senior Unsecured Obligations or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, or release all ~~Lenders~~or substantially all of the Collateral. (hg) Any Lender may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section ~~8.07~~9.07, disclose to the assignee or participant or proposed assignee or participant any information relating to the ~~Borrowers~~ Borrower furnished to such Lender by or on behalf of the ~~Borrowers~~Borrower; provided, however, 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 received by it from such Lender as set forth in ~~accordance with the terms of~~ Section ~~8.09~~9.09. (ih) Notwithstanding any other provision set forth in this Agreement, any Lender may at any time create a security interest in all or any portion of its rights under this Agreement (~~including~~ including, without limitation, the ~~Term Loan Advances~~ Senior Unsecured Obligations 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 System. (ji) ~~Notwithstanding anything to~~ In the ~~contrary contained herein,~~ case of any Lender that is a fund that invests in bank ~~loans may create a security interest in~~ loans, such Lender may, without the consent of the Borrower or the Administrative Agent, assign or pledge all or any portion of ~~the Term Loan Advances owing~~ its Notes or any other instrument evidencing its rights as a Lender under this Agreement to ~~it and the Note~~ any trustee for, or ~~Notes held by it to the trustee for~~ any other representative of, holders of obligations ~~owed,~~ owed or securities issued, by such ~~fund~~ fund, as security for such obligations or securities~~, provided,~~ ; provided that ~~unless and until~~ any foreclosure or similar action by such trustee ~~actually becomes a Lender in compliance with~~ or representative shall be subject to the ~~other~~ provisions of this Section 8.07, (i) no such pledge shall release the pledging Lender from any of its obligations under the Loan Documents and (ii) such trustee shall not be entitled to exercise any of the rights of a Lender under the Loan Documents even though such trustee may have acquired ownership rights with respect to the pledged interest through foreclosure or otherwise9.07 concerning assignments. (k) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Lender”) may grant to a special purpose funding vehicle identified as such in writing from time to time by the Granting Lender to the Administrative Agent and BMCA (an “SPC”) the option to provide all or any part of any Term Loan Advance that such Granting Lender would otherwise be obligated to make pursuant to this Agreement, provided that (i) nothing herein shall constitute a commitment by any SPC to fund any Term Loan Advance, and (ii) if an SPC elects not to exercise such option or otherwise fails to make all or any part of such Term Loan Advance, the Granting Lender shall be obligated to make such Term Loan Advance pursuant to the terms hereof. The making of an Advance by an SPC hereunder shall utilize the Term Loan Commitment of the Granting Lender to the same extent, and as if, such Term Loan Advance were made by such Granting Lender. Each party hereto hereby agrees that (i) no SPC shall be liable for any indemnity or similar payment obligation under this Agreement for which a Lender would be liable, (ii) no SPC shall be entitled to the benefits of Sections 2.09 and 2.11 (or any other increased costs protection provision) and (iii) the Granting Bank shall for all purposes, including the approval of any amendment or waiver of any provision of any Loan Document, remain the Lender of record hereunder. In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior Debt of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency, or liquidation proceeding under the laws of the United States or any State thereof. Notwithstanding anything to the contrary contained in this Agreement, any SPC may (i) with notice to, but without prior consent of, BMCA and the Administrative Agent and with the payment of a processing fee of $500 and without paying any processing fee therefor, assign all or any portion of its interest in any Term Loan Advance to the Granting Lender and (ii) disclose on a confidential basis any non-public information relating to its funding of Term Loan Advance to any rating agency, commercial paper dealer or provider of any surety or guarantee or credit or liquidity enhancement to such SPC. This subsection (k) may not be amended without the prior written consent of each Granting Lender, all or any part of whose Term Loan Advances are being funded by the SPC at the time of such amendment.

Appears in 1 contract

Samples: Senior Unsecured Term Loan Agreement (Dresser Inc)

Assignments and Participations. (a) ~~Each~~ Any Lender may, and so long as no Default under Section 6.01(a) or 6.01(f) or Event of Default has occurred and is continuing, if demanded by the Borrower (following (i) a demand by such Lender for the payment of additional compensation pursuant to Section 2.10(a), 2.10(b) or 2.13 or (ii) an assertion by such Lender pursuant to Section 2.10(c) or 2.10(d) that it is impractical or unlawful for such Lender to make Eurodollar Rate Advances), upon at least five Business Days’ ' notice to such Lender and the Administrative Agent, each of the Lenders will, at any time assign to one or more Eligible Assignees all or a portion of its rights and obligations under this Agreement (~~including~~ including, without limitation, all or a portion of its ~~Term Loan Commitment~~Commitment or Commitments, the ~~Term Loan~~ Advances owing to it and the Note or Notes held by it); provided that: (i) except in the case of an assignment of the entire remaining amount of the assigning Lender's Commitment or Commitments, the Advances owing to it or the Note or Notes held by it or in the case of an assignment to a Lender or an Affiliate of a Lender or an Approved Fund with respect to a Lender, the aggregate amount of the Commitment (which for this purpose includes Advances outstanding thereunder) or, if the applicable Commitment is not then in effect, the principal outstanding balance of the Advances of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent or, if "Trade Date" is specified in the Assignment and Assumption, as of the Trade Date) shall not be less than $2,500,000, in the case of any assignment in respect of the Revolving Credit Facility, or $1,000,000, in the case of any assignment in respect of the Term Loan Facility, unless each of the Administrative Agent and, so long as no Default under Section 6.01(a) or 6.01(f) or Event of Default has occurred and is continuing, the Borrower otherwise consent (each such consent not to be unreasonably withheld or delayed); (ii) each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender's rights and obligations under this Agreement with respect to the Advances or the Commitments assigned, except that this clause (ii) shall not prohibit any Lender from assigning all or a portion of its rights and obligations among separate Facilities on a non-pro rata basis; (iii) any assignment of a Revolving Credit Commitment must be approved by the Administrative Agent (which approval shall not be unreasonably withheld or delayed) and the Issuing Bank unless the Person that is the proposed assignee is itself a Lender with a Revolving Credit Commitment (whether or not the proposed assignee would otherwise qualify as an Eligible Assignee); and (iv) the parties to each assignment shall execute and deliver to the Administrative Agent an Assignment and Assumption, together with any Note or Notes subject to such assignment and, except in the case of an assignment by any of the Lenders to an Affiliate or an Approved Fund of such Lender, a processing and recordation fee of $3,500, and the Eligible Assignee, if it shall not be a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire. (b) The Issuing Bank may assign to any other Person all, but not a portion of, its rights and obligations under the undrawn portion of its Letter of Credit Commitment at any time; provided, however, that (i) each such assignment shall be of a uniform, and not a varying, percentage of all rights and obligations under this Agreement, (ii) except in the case of an assignment to a Person that, immediately prior to such assignment, was a Lender, an Affiliate of any Lender or an Approved Fund of any Lender or an assignment of all of a Lender’s rights and obligations under this Agreement, the aggregate amount of the Term Loan Commitments or Term Loan Advances being assigned to such Eligible Assignee pursuant to such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $5,000,000 (or such lesser amount as shall be approved by the Administrative Agent and, so long as no Default shall have occurred and be continuing at the time of effectiveness of such assignment, BMCA), (iii) each such assignment shall be to an Eligible Assignee, ; (iv) except in the case of an assignment by a Person that, immediately prior to such assignment, was a Lender, to one of its Affiliates, no such assignments shall be permitted without the consent of the Administrative Agent and, so long as no Default shall have occurred and be continuing at the time of effectiveness of such assignment, BMCA (in each case, which consents shall not be unreasonably withheld) and (vii) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and ~~Acceptance~~Assumption, together with ~~any Note or Notes subject to such assignment and~~ a processing and recordation fee of $3,500, and (iii) no such assignments shall be permitted without the consent of the Administrative Agent until the Administrative Agent shall have notified the Lender Parties that syndication of the Commitments hereunder has been completed. The Swing Line Bank may not assign or otherwise transfer to any other person any of its rights or obligations under its Swing Line Commitment. (bc) ~~Upon such execution, delivery,~~ Subject to acceptance and ~~recording~~recording thereof by the Administrative Agent pursuant to Section 8.07(d), from and after the effective date specified in ~~such~~ each Assignment and ~~Acceptance~~Assumption, ~~(i)~~ the ~~assignee~~ Eligible Assignee thereunder shall be a party ~~hereto~~ to this Agreement and, to the extent ~~that rights and obligations hereunder have been~~ of the interest assigned ~~to it pursuant to~~ by such Assignment and ~~Acceptance~~Assumption, have the rights and obligations of a Lender ~~hereunder~~ or the Issuing Bank under this Agreement, and ~~(ii)~~ the assigning Lender ~~assignor~~ or Issuing Bank thereunder shall, to the extent ~~that rights and obligations hereunder have been~~ of the interest assigned by ~~it pursuant to~~ such Assignment and ~~Acceptance~~Assumption, ~~relinquish its rights (other than its rights under Sections 2.09, 2.11 and 8.04 to the extent any claim thereunder relates to an event arising prior to such assignment) and~~ be released from its obligations under this Agreement (and, in the case of an Assignment and ~~Acceptance~~ Assumption covering all of the ~~remaining portion of an~~ assigning Lender’s 's or Issuing Bank's rights and obligations under this Agreement, such Lender or Issuing Bank shall cease to be a party hereto). ) but shall continue to be entitled to the benefits of Sections 2.10, 2.13 and 8.04 (~~c) By executing~~ and ~~delivering an Assignment and Acceptance, each Lender assignor thereunder and each assignee thereunder confirm to and agree with each~~ other ~~and~~ similar provisions of the other ~~parties thereto and hereto as follows: (i~~Loan Documents to survive the payment in full of the Obligations of the Loan Parties under or in respect of the Loan Documents) ~~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 any Loan Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value of, or the perfection or priority of any lien or security interest created or purported to be created under or in connection with, any Loan Document or any other instrument or document furnished pursuant thereto; (ii) such assigning Lender makes no representation or warranty facts and ~~assumes no responsibility with respect~~ circumstances occurring prior to the ~~financial condition~~ effective date of ~~any Loan Party~~ such assignment. Any assignment or ~~the performance~~ transfer by a Lender of rights or ~~observance by any Loan Party of any of its~~ obligations under ~~any Loan Document or any other instrument or document furnished pursuant thereto; (iii) such assignee confirms~~ this Agreement that ~~it has received a copy~~ does not comply with this paragraph shall be treated for purposes of this ~~Agreement, together with copies~~ Agreement as a sale by such Lender of ~~the financial statements referred to~~ a participation in ~~Section 4.01~~ such rights and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) such assignee will, independently and without reliance upon any Agent, such assigning Lender or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) such assignee confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes each Agent to take such action as agent on its behalf and to exercise such powers and discretion under the Loan Documents as are delegated to such Agent by the terms hereof and thereof, together with such powers and discretion as are reasonably incidental thereto; and (vii) such assignee agrees that it will perform obligations in accordance with ~~their terms all of the obligations that by the terms of~~ this ~~Agreement are required to be performed by it as a Lender~~Section 8.07(e). (d) The Administrative ~~Agent~~ Agent, acting solely for this purpose ~~(but only for this purpose)~~ as ~~the~~ an agent of the ~~Borrowers~~Borrower, shall maintain at its ~~address referred to~~ office as set forth in Section ~~8.02~~ 8.02, a copy of each Assignment and ~~Acceptance~~ Assumption delivered to ~~and accepted by~~ it and a register for the recordation of the names and addresses of the ~~Lenders~~ Lender Parties, and the ~~Term Loan Commitment~~ Commitments of, and principal ~~amount~~ amounts of the ~~Term Loan~~ Advances owing to, each Lender pursuant to the terms hereof from time to time (the “"Register”"). The entries in the Register shall be ~~conclusive and binding for all purposes, absent manifest error~~conclusive, and the ~~Borrowers~~Borrower, the ~~Agents~~ Administrative Agent and the ~~Lenders shall~~ Lender Parties may treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender Party hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available for inspection by the ~~Borrowers or any Agent or~~ Borrower and any Lender Party, at any reasonable time and from time to time upon reasonable prior ~~notice.~~ notice and (eii) Notwithstanding anything to the contrary contained in clause (b) above, the Term Loan Advances (including the Notes evidencing such Term Loan Advances) are registered obligations and the right, title, and interest of the Lenders and their assignees in and to such Term Loan Advances shall be transferable only upon notation of such transfer in the Register. A Note shall only evidence the Lender’s or an assignee’s right title and interest in and to the related Term Loan Advance, and in no event is any such Note to be considered a bearer instrument or obligation. This Section 8.07 shall be construed so that the Term Loan Advances are at all times maintained in “registered form” within the meaning of sections 163(f), 871(h)(2) and 881(c)(2) of the Internal Revenue Code and any related regulations (or any successor provisions of the Internal Revenue Code or such regulations). Solely for purposes of this and for tax purposes only, the Administrative Agent shall act as each Borrower’s agent for purposes of maintaining such notations of transfer in the Register. (f) Upon its receipt of an Assignment and ~~Acceptance~~ Assumption executed by an assigning Lender Party or Issuing Bank and an assignee, together with any Note or Notes subject to such assignment, the Administrative Agent shall, if such Assignment and ~~Acceptance~~ Assumption has been completed and is in substantially the form of Exhibit C hereto, (ix) accept such Assignment and ~~Acceptance~~Assumption, (iiy) record the information contained therein in the Register and (~~iii~~z) give prompt notice thereof to ~~BMCA and each other Agent~~the Borrower. In the case of any assignment by a ~~Lender~~Lender Party, within five Business Days after its receipt of such notice, the ~~Borrowers~~Borrower, at ~~their~~ its own expense, ~~shall, if requested by the assignee,~~ shall execute and deliver to the Administrative Agent in exchange for the surrendered Note or Notes ~~an amended and restated~~ a new Note ~~(which shall be marked “Amended and Restated”)~~ or Notes from the Borrower payable to or to the order of such Eligible Assignee in an amount equal to the ~~Term Loan~~ Commitment assumed by it under each Facility pursuant to such ~~Assignment~~ assignment and ~~Acceptance~~ Assumption and, if ~~any~~ the assigning Lender Party has retained a ~~Term Loan~~ Commitment ~~hereunder~~ under such ~~Facility and has requested~~ Facility, a ~~replacement Note, an amended and restated~~ new Note or Notes from the Borrower payable to or to the order of ~~such~~ the assigning Lender Party in an amount equal to the ~~Term Loan~~ Commitment retained by it ~~hereunder~~under such Facility. ~~Such amended and restated~~ Each of the 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 Assignment and ~~Acceptance~~ Assumption and shall otherwise be in substantially the form of Exhibit A A-1 or Exhibit A-2 hereto, as appropriate. (ge) ~~Each~~ Any Lender Party may at any time, without the consent of, or notice to, the Borrower or the Administrative Agent, sell participations to ~~one or more Persons~~ any Person (other than ~~any Loan Party~~ a natural person or the Borrower or any of ~~its Affiliates~~the Borrower's Affiliates or Subsidiaries) (each, a "Participant") in ~~or to~~ all or a portion of ~~its~~ such Lender Party's rights ~~and~~ and/or obligations under this Agreement (including all or a portion of its ~~Term Loan~~ Commitment or Commitments, the ~~Term Loan~~ Advances owing to it and the Note or ~~Notes (~~Notes, if any) , held by it); ~~provided, however, that~~ provided that: (i) such ~~Lender’s~~ Lender Party's obligations under this Agreement ~~(including its Term Loan Commitments)~~ shall remain unchanged, , (ii) such Lender Party shall remain solely responsible to the other parties hereto for the performance of such ~~obligations,~~ obligations and (iii) ~~such Lender shall remain~~ the ~~holder of any such Note for all purposes of this Agreement, (iv) the Borrowers~~Borrower, the ~~Agents~~ Administrative Agent and the other ~~Lenders~~ Lender Parties shall continue to deal solely and directly with such Lender Party in connection with such ~~Lender’s~~ Lender Party's rights and obligations under this Agreement. Any agreement or instrument pursuant to which a Lender Party sells such a participation shall provide that such Lender Party shall retain the sole right to enforce this Agreement and ~~(v) no participant under any such participation shall have any right~~ to approve any ~~amendment~~ amendment, modification or waiver of any provision of ~~any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent~~ this Agreement; provided that such ~~amendment~~agreement or instrument may provide that such Lender Party will not, ~~waiver or consent requires~~ without the consent of ~~all Lenders~~the Participant, agree to any amendment, modification or waiver described in Sections 8.01(a)(iii) or (iv) or Section 8.01(b) that affects such Participant. Subject to Section 8.07(f), the Borrower agrees that each Participant shall be entitled to the benefits of Sections 2.10, 2.13 and 8.04 to the same extent as if it were a Lender Party and had acquired its interest by assignment pursuant to Section 8.07(a). To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 8.05 as though it were a Lender Party. (hf) A Participant shall not be entitled to receive any greater payment under Sections 2.10, 2.13 and 8.04 than the applicable Lender Party would have been entitled to receive with respect to the participation sold to such Participant, unless the sale of the participation to such Participant is made with the Borrower's prior written consent. A Participant that is organized under the laws of a jurisdiction outside of the United States shall not be entitled to the benefits of Section 2.13 unless the Borrower is notified of the participation sold to such Participant and such Participant agrees, for the benefit of the Borrower, to comply with Section 2.13 as though it were a Lender Party. (g) Any Lender may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section 8.07, disclose to the assignee or participant or proposed assignee or participant any information relating to the Borrowers furnished to such Lender by or on behalf of the Borrowers; provided, however, 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 received by it from such Lender in accordance with the terms of Section 8.09. (i) Notwithstanding any other provision set forth in this Agreement, any Lender Party may at any time ~~create~~ pledge or assign a security interest in all or any portion of its rights under this Agreement (to secure obligations of such Lender Party, including ~~the Term Loan Advances owing~~ without limitation any pledge or assignment to ~~it and the Note or Notes held by it) in favor of any~~ secure obligations to a Federal Reserve ~~Bank in accordance with Regulation A~~ Bank; provided that no such pledge or assignment shall release such Lender Party from any of ~~the Board of Governors of the Federal Reserve System~~its obligations hereunder or substitute any such pledgee or assignee for such Lender Party as a party hereto. (jh) Notwithstanding anything to the contrary contained herein, any Lender that is a fund that invests in bank loans may create a security interest in all or any portion of the Term Loan Advances owing to it and the Note or Notes held by it to the trustee for holders of obligations owed, or securities issued, by such fund as security for such obligations or securities, provided, that unless and until such trustee actually becomes a Lender in compliance with the other provisions of this Section 8.07, (i) no such pledge shall release the pledging Lender from any of its obligations under the Loan Documents and (ii) such trustee shall not be entitled to exercise any of the rights of a Lender under the Loan Documents even though such trustee may have acquired ownership rights with respect to the pledged interest through foreclosure or otherwise. (k) Notwithstanding anything to the contrary contained herein, any Lender Party (a “"Granting Lender”") may grant to a special purpose funding vehicle identified as such in writing from time to time by the Granting Lender to the Administrative Agent and ~~BMCA~~ the Borrower (an “"SPC”") the option to provide all or any part of any ~~Term Loan~~ Advance that such Granting Lender would otherwise be obligated to make pursuant to this Agreement, provided that (i) nothing herein shall constitute a commitment by any SPC to fund any ~~Term Loan~~ Advance, and (ii) if an SPC elects not to exercise such option or otherwise fails to make all or any part of such ~~Term Loan~~ Advance, the Granting Lender shall be obligated to make such ~~Term Loan~~ Advance pursuant to the terms hereof. The making of an Advance by an SPC hereunder shall utilize the ~~Term Loan~~ Commitment of the Granting Lender to the same extent, and as if, such ~~Term Loan~~ Advance were made by such Granting Lender. Each party hereto hereby agrees that (i) no SPC shall be liable for any indemnity or similar payment obligation under this Agreement for which a Lender Party would be liable, (ii) no SPC shall be entitled to the benefits of Sections ~~2.09~~ 2.10 and ~~2.11~~ 2.12 (or any other increased costs protection provision) and (iii) the Granting Bank shall for all purposes, ~~including~~ including, without limitation, the approval of any amendment or waiver of any provision of any Loan Document, remain the Lender Party of record hereunder. In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior ~~Debt~~ debt of any SPC, it will not institute against, or join any other ~~person~~ Person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency, or liquidation proceeding under the laws of the United States or any State thereof. Notwithstanding anything to the contrary contained in this Agreement, any SPC may (i) with notice to, but without prior consent of, ~~BMCA~~ the Borrower and the Administrative Agent ~~and with the payment of a processing fee of $500~~ and without paying any processing fee therefor, assign all or any portion of its interest in any ~~Term Loan~~ Advance to the Granting Lender and (ii) disclose on a confidential basis any non-public information relating to its funding of ~~Term Loan Advance~~ Advances to any rating agency, commercial paper dealer or provider of any surety or guarantee or credit or liquidity enhancement to such SPC. This subsection (k) may not be amended without the prior written consent of each Granting Lender, all or any part of whose ~~Term Loan~~ Advances are being funded by the SPC at the time of such amendment. (i) In the event that the Borrower shall request that the Lender Parties enter into any amendment, modification, consent or waiver with respect to this Agreement or any other Loan Document, and any Lender Party elects not to enter into such amendment, modification, consent or waiver (each such Lender Party being a "Dissenting Lender"), then the Borrower shall have the right upon 10 days' written notice to the Administrative Agent and such Dissenting Lender, to require each such Dissenting Lender to assign 100% of the rights and obligations of the Dissenting Lender at par to any Lender or any other financial institution which satisfies the requirements of Section 8.07(a) and has been consented to by the Administrative Agent, the Swing Line Lender and in the case of any assignment of a Revolving Credit Commitment each Issuing Bank (which consents in the case of the Administrative Agent and the Swing Line Lender shall not be unreasonably withheld or delayed). Each such assignment shall be made pursuant to an Assignment and Assumption and shall comply with the other terms of this Section 8.07. The Borrower shall pay to such Dissenting Lender, concurrently with the effectiveness of such assignment, any amounts payable under this Agreement that would have been payable if the Borrower had voluntarily prepaid such Advances and all fees hereunder then due to such Dissenting Lender. The Dissenting Lender shall not be required to pay any fee relating to such assignment.

Appears in 1 contract

Samples: Credit Agreement (Caremark Rx Inc)

Assignments and Participations. (a) Each Lender ~~may~~may and, so long as no Default shall have occurred and be continuing, if demanded by the Borrower (following a demand by such Lender pursuant to Section 2.10 or 2.12) upon at least five Business Days’ ' notice to such Lender and the Administrative ~~Agent~~Agent will, assign to one or more Eligible Assignees all or a portion of its rights and obligations under this Agreement and the other Loan Documents (~~including~~ including, without limitation, all or a portion of its ~~Term Loan Commitment~~Commitment or Commitments, the ~~Term Loan~~ Advances owing to it and the Note or Notes held by it); provided, however, that (i~~) each such assignment shall be of a uniform, and not a varying, percentage of all rights and obligations under this Agreement, (ii~~) except in the case of an assignment to a Person that, immediately prior to such assignment, was a Lender, an Affiliate of any Lender or an Approved Fund of any Lender or an assignment of all of a Lender’s 's rights and obligations under this Agreement, the aggregate amount of the ~~Term Loan~~ Commitments ~~or Term Loan Advances~~ being assigned to such Eligible Assignee pursuant to such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $~~5,000,000~~ 1,000,000 (or or, in each case, such lesser amount as shall be approved by the Administrative Agent and, so long as no Default shall have occurred and be continuing at the time of effectiveness of such assignment, ~~BMCA)~~the Borrower) under each Facility for which a Commitment is being assigned, (~~iii~~ii) each such assignment shall be to an Eligible Assignee, (iv) except in the case of an assignment by a Person that, immediately prior to such assignment, was a Lender, to one of its Affiliates, no such assignments shall be permitted without the consent of the Administrative Agent and, so long as no Default shall have occurred and be continuing at the time of effectiveness of such assignment, BMCA (in each case, which consents shall not be unreasonably withheld) Assignee and (viii) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together with any Note or Notes subject to such assignment and (except in the case of an assignment to a Person that, immediately prior to such assignment, was an Affiliate or an Approved Fund of the assigning Lender) a processing and recordation fee of $3,500. (b) Upon such execution, delivery, acceptance and recording, from and after the effective date specified in such 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, have the rights and obligations of a Lender or the Issuing Bank, as the case may be, hereunder and (ii) the Lender or the Issuing Bank assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (other than its rights under Sections ~~2.09~~2.10, ~~2.11~~ 2.12 and 8.04 to the extent any claim thereunder relates to an event arising prior to such assignment) and be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all of the remaining portion of an assigning Lender’s 's or the Issuing Bank's rights and obligations under this Agreement, such Lender or the Issuing Bank shall cease to be a party hereto). (c) By executing and delivering an Assignment and Acceptance, each Lender Party assignor thereunder and each assignee thereunder confirm to and agree with each other and the other parties thereto and hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender Party makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with any Loan Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value of, or the perfection or priority of any lien or security interest created or purported to be created under or in connection with, any Loan Document or any other instrument or document furnished pursuant thereto; (ii) such assigning Lender Party makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party or the performance or observance by any Loan Party of any of its obligations under any Loan Document or any other instrument or document furnished pursuant thereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 4.01 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) such assignee will, independently and without reliance upon any Agent, such assigning Lender Party or any other Lender Party and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) such assignee confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes each Agent to take such action as agent on its behalf and to exercise such powers and discretion under the Loan Documents as are delegated to such Agent by the terms hereof and thereof, together with such powers and discretion as are reasonably incidental thereto; and (vii) such assignee agrees that it will perform in accordance with their terms all of the obligations that by the terms of this Agreement are required to be performed by it as a ~~Lender~~Lender or the Issuing Bank, as the case may be. (d) The Administrative Agent ~~acting for this purpose (but only for this purpose) as the agent of the Borrowers,~~ shall maintain at its address referred to in Section 8.02 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 ~~Lenders~~ Lender Parties and the ~~Term Loan~~ Commitment under each Facility of, and principal amount of the ~~Term Loan~~ Advances owing under each Facility to, each Lender Party from time to time (the ~~“Register”~~"REGISTER"). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the ~~Borrowers~~Borrower, the Agents and the ~~Lenders shall~~ Lender Parties may treat each Person whose name is recorded in the Register as a Lender Party hereunder for all purposes of this Agreement. The Register shall be available for inspection by the ~~Borrowers~~ Borrower or any Agent or any Lender Party at any reasonable time and from time to time upon reasonable prior notice. (e) Notwithstanding anything to the contrary contained in clause (b) above, the Term Loan Advances (including the Notes evidencing such Term Loan Advances) are registered obligations and the right, title, and interest of the Lenders and their assignees in and to such Term Loan Advances shall be transferable only upon notation of such transfer in the Register. A Note shall only evidence the Lender’s or an assignee’s right title and interest in and to the related Term Loan Advance, and in no event is any such Note to be considered a bearer instrument or obligation. This Section 8.07 shall be construed so that the Term Loan Advances are at all times maintained in “registered form” within the meaning of sections 163(f), 871(h)(2) and 881(c)(2) of the Internal Revenue Code and any related regulations (or any successor provisions of the Internal Revenue Code or such regulations). Solely for purposes of this and for tax purposes only, the Administrative Agent shall act as each Borrower’s agent for purposes of maintaining such notations of transfer in the Register. (f) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender Party and an assignee, together with any Note or Notes subject to such assignment, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit C hereto, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to ~~BMCA~~ the Borrower and each other Agent. In the case of any assignment by a Lender, within five Business Days after its receipt of such notice, the ~~Borrowers~~Borrower, at ~~their~~ its own expense, ~~shall, if requested by the assignee,~~ shall execute and deliver to the Administrative Agent in exchange for the surrendered Note or Notes ~~an amended and restated~~ a new Note ~~(which shall be marked “Amended and Restated”)~~ to the order of such Eligible Assignee in an amount equal to the ~~Term Loan~~ Commitment assumed by it under each Facility pursuant to such Assignment and Acceptance and, if any assigning Lender has retained a ~~Term Loan~~ Commitment hereunder under such ~~Facility and has requested~~ Facility, a ~~replacement Note, an amended and restated~~ new Note to the order of such assigning Lender in an amount equal to the ~~Term Loan~~ Commitment retained by it hereunder. Such ~~amended and restated~~ 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 Assignment and Acceptance and shall otherwise be in substantially the form of Exhibit A A-1 or A-2 hereto, as the case may be. (f) The Issuing Bank may assign to an Eligible Assignee all of its rights and obligations under the undrawn portion of its Letter of Credit Commitment at any time; provided, however, that (i) each such assignment shall be to an Eligible Assignee and (ii) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together with a processing and recordation fee of $3,500. (g) Each Lender Party may sell participations to one or more Persons (other than any Loan Party or any of its Affiliates) in or to all or a portion of its rights and obligations under this Agreement (~~including~~ including, without limitation, all or a portion of its ~~Term Loan~~ Commitments, the ~~Term Loan~~ Advances owing to it and the Note or Notes (if any) held by it); provided, however, that (i) such ~~Lender’s~~ Lender Party's obligations under this Agreement (~~including~~ including, without limitation, its ~~Term Loan~~ Commitments) shall remain unchanged, (ii) such Lender Party shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) such Lender Party shall remain the holder of any such Note for all purposes of this Agreement, (iv) the ~~Borrowers~~Borrower, the Agents and the other ~~Lenders~~ Lender Parties shall continue to deal solely and directly with such Lender Party in connection with such ~~Lender’s~~ Lender Party's rights and obligations under this Agreement and (v) no participant under any such participation shall have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent ~~requires~~ would reduce the ~~consent~~ principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, postpone any date fixed for any payment of principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, or release all ~~Lenders~~or substantially all of the Collateral. (h) Any Lender Party may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section 8.07, disclose to the assignee or participant or proposed assignee or participant any information relating to the ~~Borrowers~~ Borrower furnished to such Lender Party by or on behalf of the ~~Borrowers~~Borrower; provided, however, 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 received by it from such Lender ~~in accordance with the terms of Section 8.09~~Party. (i) Notwithstanding any other provision set forth in this Agreement, any Lender Party may at any time create a security interest in all or any portion of its rights under this Agreement and the other Loan Documents (~~including~~ including, without limitation, the ~~Term Loan~~ 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 System. (j) Notwithstanding anything to the contrary contained herein, any Lender that is a fund that invests in bank loans may create a security interest in all or any portion of the ~~Term Loan~~ Advances owing to it and the Note or Notes held by it to the trustee for holders of obligations owed, or securities issued, by such fund as security for such obligations or securities, provided, that unless and until such trustee actually becomes a Lender in compliance with the other provisions of this Section 8.07, (i) no such pledge shall release the pledging Lender from any of its obligations under the Loan Documents and (ii) such trustee shall not be entitled to exercise any of the rights of a Lender under the Loan Documents even though such trustee may have acquired ownership rights with respect to the pledged interest through foreclosure or otherwise. (k) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Lender”) may grant to a special purpose funding vehicle identified as such in writing from time to time by the Granting Lender to the Administrative Agent and BMCA (an “SPC”) the option to provide all or any part of any Term Loan Advance that such Granting Lender would otherwise be obligated to make pursuant to this Agreement, provided that (i) nothing herein shall constitute a commitment by any SPC to fund any Term Loan Advance, and (ii) if an SPC elects not to exercise such option or otherwise fails to make all or any part of such Term Loan Advance, the Granting Lender shall be obligated to make such Term Loan Advance pursuant to the terms hereof. The making of an Advance by an SPC hereunder shall utilize the Term Loan Commitment of the Granting Lender to the same extent, and as if, such Term Loan Advance were made by such Granting Lender. Each party hereto hereby agrees that (i) no SPC shall be liable for any indemnity or similar payment obligation under this Agreement for which a Lender would be liable, (ii) no SPC shall be entitled to the benefits of Sections 2.09 and 2.11 (or any other increased costs protection provision) and (iii) the Granting Bank shall for all purposes, including the approval of any amendment or waiver of any provision of any Loan Document, remain the Lender of record hereunder. In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior Debt of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency, or liquidation proceeding under the laws of the United States or any State thereof. Notwithstanding anything to the contrary contained in this Agreement, any SPC may (i) with notice to, but without prior consent of, BMCA and the Administrative Agent and with the payment of a processing fee of $500 and without paying any processing fee therefor, assign all or any portion of its interest in any Term Loan Advance to the Granting Lender and (ii) disclose on a confidential basis any non-public information relating to its funding of Term Loan Advance to any rating agency, commercial paper dealer or provider of any surety or guarantee or credit or liquidity enhancement to such SPC. This subsection (k) may not be amended without the prior written consent of each Granting Lender, all or any part of whose Term Loan Advances are being funded by the SPC at the time of such amendment.

Appears in 1 contract

Samples: Credit Agreement (Esterline Technologies Corp)

Assignments and Participations. (a) Each Lender ~~may~~may and, so long as no Default shall have occurred and be continuing, if demanded by the Borrower pursuant to Section 2.09(e) upon at least five Business Days’ notice to such Lender and the Administrative Agent, will assign to one or more Eligible Assignees all or a portion of its rights and obligations under this Agreement (~~including~~ including, without limitation, all or a portion of its ~~Term Loan Commitment,~~ Commitment or Commitments and the ~~Term Loan~~ Advances owing to ~~it and the Note or Notes held by~~ it); provided, however, that (i) each such assignment shall be of a uniform, and not a varying, percentage of all rights and obligations under ~~this Agreement~~and in respect of any or all of the Facilities; for the avoidance of doubt, such assignments need not be pro rata among the Facilities, (ii) except in the case of an assignment to a Person that, immediately prior to such assignment, was a Lender, an Affiliate of any Lender or an Approved Fund of any Lender or an assignment of all of a Lender’s rights and obligations under this Agreement, the aggregate amount of the ~~Term Loan~~ Commitments ~~or Term Loan Advances~~ being assigned to such Eligible Assignee pursuant to such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $~~5,000,000~~ 1,000,000 in the case of the Term B Facility and $2,500,000 in the case of the Revolving Credit Facility (or such lesser amount as shall be approved by the Administrative Agent and, so long as no Event of Default shall have occurred and be continuing at the time of effectiveness of such assignment, ~~BMCA)~~the Borrower) or, in the case of any assignment of all of a Lender’s Commitments, a lesser amount equal to all of such Lender’s Commitments; provided, however, that simultaneous assignments to two or more Funds managed by the same investment managers or by affiliated advisors (the “Related Funds”) shall be treated as one assignment for purposes of the minimum assignment required, (iii) each such assignment shall be to an Eligible Assignee, (iv) ~~except in~~ each such assignment made as a result of a demand by the ~~case of~~ Borrower pursuant to Section 2.09(e) shall be arranged by the Borrower after consultation with the Administrative Agent and shall be either an assignment of all of the rights and obligations of the assigning Lender under this Agreement or an assignment of a portion of such rights and obligations made concurrently with another such assignment or other such assignments that together cover all of the rights and obligations of the assigning Lender under this Agreement, (v) no Lender shall be obligated to make any such assignment as a result of a demand by ~~a Person that, immediately prior~~ the Borrower pursuant to Section 2.09(e) unless and until such Lender shall have received one or more payments from either the Borrower or one or more Eligible Assignees in an aggregate amount at least equal to the aggregate outstanding principal amount of the Advances owing to such ~~assignment, was a~~ Lender, together with accrued interest thereon to ~~one~~ the date of ~~its Affiliates~~payment of such principal amount and all other amounts payable to such Lender under this Agreement, (vi) no such assignments shall be permitted without the consent of the Joint Bookrunners until the Administrative Agent ~~and, so long as no Default~~ shall have ~~occurred and be continuing at~~ notified the ~~time~~ Lender Parties that syndication of ~~effectiveness of such assignment, BMCA (in each case, which consents shall not be unreasonably withheld)~~ the Commitments hereunder has been completed and (vvii) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together with ~~any Note or Notes subject to such assignment and~~ a processing and recordation fee of $~~3,500~~3,500 (other than assignments by any Joint Bookrunner or its Affiliates); provided, however, that for each such assignment made as a result of a demand by the Borrower pursuant to Section 2.09(e), the Borrower shall pay to the Administrative Agent the applicable processing and recordation fee or cause the Eligible Assignee to pay such fee; and provided further that only one such fee shall be payable in connection with simultaneous assignments to or by two or more Related Funds. (b) Upon such execution, delivery, acceptance and recording, from and after the effective date specified in such 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, have the rights and obligations of a Lender or Issuing Lender, as the case may be, hereunder and (ii) the Lender or Issuing Lender assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (other than its rights under Sections 2.09, 2.11 and ~~8.04~~ 10.04 to the extent any claim thereunder relates to an event arising prior to such assignment) and be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all of the remaining portion of an assigning Lender’s or Issuing Lender’s rights and obligations under this Agreement, such Lender or Issuing Lender shall cease to be a party hereto). (c) By executing and delivering an Assignment and Acceptance, each Lender Party assignor thereunder and each assignee thereunder confirm to and agree with each other and the other parties thereto and hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender Party makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with any Loan Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value of, or the perfection or priority of any lien or security interest created or purported to be created under or in connection with, any Loan Document or any other instrument or document furnished pursuant thereto; (ii) such assigning Lender Party makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party or the performance or observance by any Loan Party of any of its obligations under any Loan Document or any other instrument or document furnished pursuant thereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section ~~4.01~~ 5.01 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) such assignee will, independently and without reliance upon any Agent, such assigning Lender Party or any other Lender Party and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) such assignee confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes each Agent to take such action as agent on its behalf and to exercise such powers and discretion under the Loan Documents as are delegated to such Agent by the terms hereof and thereof, together with such powers and discretion as are reasonably incidental thereto; and (vii) such assignee agrees that it will perform in accordance with their terms all of the obligations that by the terms of this Agreement are required to be performed by it as a Lender or Issuing Lender~~. (d) The Administrative Agent acting for this purpose (but only for this purpose)~~ , as the agent of the Borrowers, shall maintain at its address referred to in Section 8.02 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 Lenders and the Term Loan Commitment of, and principal amount of the Term Loan Advances 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 Borrowers, the Agents and the Lenders shall treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrowers or any Agent or any Lender at any reasonable time and from time to time upon reasonable prior noticecase may be. (e) Notwithstanding anything to the contrary contained in clause (b) above, the Term Loan Advances (including the Notes evidencing such Term Loan Advances) are registered obligations and the right, title, and interest of the Lenders and their assignees in and to such Term Loan Advances shall be transferable only upon notation of such transfer in the Register. A Note shall only evidence the Lender’s or an assignee’s right title and interest in and to the related Term Loan Advance, and in no event is any such Note to be considered a bearer instrument or obligation. This Section 8.07 shall be construed so that the Term Loan Advances are at all times maintained in “registered form” within the meaning of sections 163(f), 871(h)(2) and 881(c)(2) of the Internal Revenue Code and any related regulations (or any successor provisions of the Internal Revenue Code or such regulations). Solely for purposes of this and for tax purposes only, the Administrative Agent shall act as each Borrower’s agent for purposes of maintaining such notations of transfer in the Register. (f) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee, together with any Note or Notes subject to such assignment, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit C hereto, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to BMCA and each other Agent. In the case of any assignment by a Lender, within five Business Days after its receipt of such notice, the Borrowers, at their own expense, shall, if requested by the assignee, execute and deliver to the Administrative Agent in exchange for the surrendered Note or Notes an amended and restated Note (which shall be marked “Amended and Restated”) to the order of such Eligible Assignee in an amount equal to the Term Loan Commitment assumed by it under each Facility pursuant to such Assignment and Acceptance and, if any assigning Lender has retained a Term Loan Commitment hereunder under such Facility and has requested a replacement Note, an amended and restated Note to the order of such assigning Lender in an amount equal to the Term Loan Commitment retained by it hereunder. Such amended and restated 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 Assignment and Acceptance and shall otherwise be in substantially the form of Exhibit A hereto. (g) Each Lender may sell participations to one or more Persons (other than any Loan Party or any of its Affiliates) in or to all or a portion of its rights and obligations under this Agreement (including all or a portion of its Term Loan Commitments, the Term Loan Advances owing to it and the Note or Notes (if any) held by it); provided, however, that (i) such Lender’s obligations under this Agreement (including its Term Loan Commitments) shall remain unchanged, (ii) 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, (iv) the Borrowers, the Agents and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and (v) no participant under any such participation shall have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent requires the consent of all Lenders. (h) Any Lender may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section 8.07, disclose to the assignee or participant or proposed assignee or participant any information relating to the Borrowers furnished to such Lender by or on behalf of the Borrowers; provided, however, 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 received by it from such Lender in accordance with the terms of Section 8.09. (i) Notwithstanding any other provision set forth in this Agreement, any Lender may at any time create a security interest in all or any portion of its rights under this Agreement (including the Term Loan 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 System. (j) Notwithstanding anything to the contrary contained herein, any Lender that is a fund that invests in bank loans may create a security interest in all or any portion of the Term Loan Advances owing to it and the Note or Notes held by it to the trustee for holders of obligations owed, or securities issued, by such fund as security for such obligations or securities, provided, that unless and until such trustee actually becomes a Lender in compliance with the other provisions of this Section 8.07, (i) no such pledge shall release the pledging Lender from any of its obligations under the Loan Documents and (ii) such trustee shall not be entitled to exercise any of the rights of a Lender under the Loan Documents even though such trustee may have acquired ownership rights with respect to the pledged interest through foreclosure or otherwise. (k) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Lender”) may grant to a special purpose funding vehicle identified as such in writing from time to time by the Granting Lender to the Administrative Agent and BMCA (an “SPC”) the option to provide all or any part of any Term Loan Advance that such Granting Lender would otherwise be obligated to make pursuant to this Agreement, provided that (i) nothing herein shall constitute a commitment by any SPC to fund any Term Loan Advance, and (ii) if an SPC elects not to exercise such option or otherwise fails to make all or any part of such Term Loan Advance, the Granting Lender shall be obligated to make such Term Loan Advance pursuant to the terms hereof. The making of an Advance by an SPC hereunder shall utilize the Term Loan Commitment of the Granting Lender to the same extent, and as if, such Term Loan Advance were made by such Granting Lender. Each party hereto hereby agrees that (i) no SPC shall be liable for any indemnity or similar payment obligation under this Agreement for which a Lender would be liable, (ii) no SPC shall be entitled to the benefits of Sections 2.09 and 2.11 (or any other increased costs protection provision) and (iii) the Granting Bank shall for all purposes, including the approval of any amendment or waiver of any provision of any Loan Document, remain the Lender of record hereunder. In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior Debt of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency, or liquidation proceeding under the laws of the United States or any State thereof. Notwithstanding anything to the contrary contained in this Agreement, any SPC may (i) with notice to, but without prior consent of, BMCA and the Administrative Agent and with the payment of a processing fee of $500 and without paying any processing fee therefor, assign all or any portion of its interest in any Term Loan Advance to the Granting Lender and (ii) disclose on a confidential basis any non-public information relating to its funding of Term Loan Advance to any rating agency, commercial paper dealer or provider of any surety or guarantee or credit or liquidity enhancement to such SPC. This subsection (k) may not be amended without the prior written consent of each Granting Lender, all or any part of whose Term Loan Advances are being funded by the SPC at the time of such amendment.

Appears in 1 contract

Samples: Credit Agreement (Madison River Capital LLC)

Assignments and Participations. (a) Each Lender ~~may~~may (and, ~~upon at least five Business Days’ notice to such Lender and~~ if demanded by the ~~Administrative Agent,~~ Borrower in accordance with Section 2.10(e) or 9.01(b) will) assign to one or more Eligible Assignees all or a portion of its rights and obligations under this Agreement (~~including~~ including, without limitation, all or a portion of its ~~Term Loan Commitment~~Commitment or Commitments, the ~~Term Loan~~ Advances owing to it and the Note or Notes held by it); provided, however, that (i) each such assignment shall be of a uniform, and not a varying, percentage of all rights and obligations under ~~this Agreement~~and in respect of one or more of the Facilities, (ii) except in the case of an assignment to a Person that, immediately prior to such assignment, was a Lender, an Affiliate of any Lender or ~~an Approved~~ a Fund Affiliate of any Lender or an assignment of all of a Lender’s rights and obligations under this Agreement, the aggregate amount of the ~~Term Loan~~ Commitments ~~or Term Loan Advances~~ being assigned to such Eligible Assignee pursuant to such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $5,000,000 under each Facility or an integral multiple of $1,000,000 in excess thereof (or such lesser amount as shall be approved by the Administrative Agent and, so long as no Default shall have occurred and be continuing at the time of effectiveness of such assignment, ~~BMCA~~the Borrower), (iii) each such assignment shall be to an Eligible Assignee, (iv) each such assignment made as a result of a demand by the Borrower pursuant to Section 2.10(e) or 9.01(b) shall be an assignment of all rights and obligations of the assigning Lender under this Agreement, (v) except in the case of an assignment by to a Person that, immediately prior to such assignment, was a Lender, ~~to one~~ an Affiliate of ~~its Affiliates, no such assignments shall be permitted without the consent~~ any Lender or a Fund Affiliate of ~~the Administrative Agent and,~~ any Lender and so long as no Default shall have occurred and be ~~continuing at~~ continuing, each assignment shall be made with the ~~time~~ consent of ~~effectiveness of such assignment, BMCA (in each case~~the Borrower, which ~~consents~~ consent shall not be unreasonably withheld or delayed, (vi) no such assignments shall be permitted (A) until the Administrative Agent shall have notified the Lender Parties that syndication of the Commitments hereunder has been completed, without the consent of the Administrative Agent, and (B) at any other time without the consent of the Administrative Agent (which consent shall not be unreasonably withheld) ), and (vvii) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together with any Note or Notes subject to such assignment ~~and~~ and, except if such assignment is being made by a Lender to an Affiliate or Fund Affiliate of such Lender, a processing and recordation fee of $3,500; provided, however, that for each such assignment made as a result of a demand by the Borrower pursuant to Section 2.10(e) or 9.01(b), the Borrower shall pay to the Administrative Agent the applicable processing and recordation fee. (b) Upon such execution, delivery, acceptance and recording, from and after the effective date specified in such 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, have the rights and obligations of a Lender or Issuing Bank, as the case may be, hereunder and (ii) the Lender or Issuing Bank assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (other than its rights under Sections ~~2.09~~2.10, ~~2.11~~ 2.12, 7.06, 8.05 and ~~8.04~~ 9.04 to the extent any claim thereunder relates to an event arising prior to such assignment) and be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all of the remaining portion of an assigning Lender’s or Issuing Bank’s rights and obligations under this Agreement, such Lender or Issuing Bank shall cease to be a party hereto). (c) By executing and delivering an Assignment and Acceptance, each Lender Party assignor thereunder and each assignee thereunder confirm to and agree with each other and the other parties thereto and hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender Party makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with any Loan Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value of, or the perfection or priority of any lien or security interest created or purported to be created under or in connection with, any Loan Document or any other instrument or document furnished pursuant thereto; (ii) such assigning Lender Party makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party or the performance or observance by any Loan Party of any of its obligations under any Loan Document or any other instrument or document furnished pursuant thereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 4.01 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) such assignee will, independently and without reliance upon ~~any~~ the Administrative Agent, such assigning Lender Party or any other Lender Party and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) such assignee confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes ~~each~~ the Administrative Agent to take such action as agent on its behalf and to exercise such powers and discretion under the Loan Documents as are delegated to ~~such~~ the Administrative Agent by the terms hereof and thereof, together with such powers and discretion as are reasonably incidental thereto; and (vii) such assignee agrees that it will perform in accordance with their terms all of the obligations that by the terms of this Agreement are required to be performed by it as a ~~Lender~~Lender or Issuing Bank, as the case may be. (d) The Administrative Agent ~~acting for this purpose (but only for this purpose) as the agent of the Borrowers,~~ shall maintain at its address referred to in Section ~~8.02~~ 9.02 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 ~~Lenders~~ Lender Parties and the ~~Term Loan~~ Commitment under each Facility of, and principal amount of the ~~Term Loan~~ Advances owing under each Facility to, each Lender Party from time to time (the “Register”). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the ~~Borrowers~~Borrower, the ~~Agents~~ Administrative Agent and the ~~Lenders shall~~ Lender Parties may treat each Person whose name is recorded in the Register as a Lender Party hereunder for all purposes of this Agreement. The Register shall be available for inspection by the ~~Borrowers~~ Borrower or ~~any~~ the Administrative Agent or any Lender Party at any reasonable time and from time to time upon reasonable prior notice. (e) Notwithstanding anything to the contrary contained in clause (b) above, the Term Loan Advances (including the Notes evidencing such Term Loan Advances) are registered obligations and the right, title, and interest of the Lenders and their assignees in and to such Term Loan Advances shall be transferable only upon notation of such transfer in the Register. A Note shall only evidence the Lender’s or an assignee’s right title and interest in and to the related Term Loan Advance, and in no event is any such Note to be considered a bearer instrument or obligation. This Section 8.07 shall be construed so that the Term Loan Advances are at all times maintained in “registered form” within the meaning of sections 163(f), 871(h)(2) and 881(c)(2) of the Internal Revenue Code and any related regulations (or any successor provisions of the Internal Revenue Code or such regulations). Solely for purposes of this and for tax purposes only, the Administrative Agent shall act as each Borrower’s agent for purposes of maintaining such notations of transfer in the Register. (f) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender Party and an assignee, together with any Note or Notes subject to such assignment, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit C D hereto, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to ~~BMCA and each other Agent~~the Borrower. In the case of any assignment by a Lender, within five Business Days after its receipt of such notice, the ~~Borrowers~~Borrower, at ~~their~~ its own expense, shall, if requested by the ~~assignee~~applicable Lender, execute and deliver to the Administrative Agent in exchange for the surrendered Note or Notes ~~an amended and restated~~ a new Note ~~(which shall be marked “Amended and Restated”)~~ to the order of such Eligible Assignee in an amount equal to the ~~Term Loan~~ Commitment assumed by it under each Facility pursuant to such Assignment and Acceptance and, if any assigning Lender has retained a ~~Term Loan~~ Commitment hereunder under such ~~Facility and has requested~~ Facility, a ~~replacement Note, an amended and restated~~ new Note to the order of such assigning Lender in an amount equal to the ~~Term Loan~~ Commitment retained by it hereunder. Such ~~amended and restated~~ new Note or ~~Notes~~ Notes, if any, shall be in an aggregate principal amount equal to the aggregate principal amount of such surrendered Note or Notes, shall be dated the effective date of such Assignment and Acceptance and shall otherwise be in substantially the form of Exhibit A hereto. (f) Each Issuing Bank may assign to one or more Eligible Assignees all or a portion of its rights and obligations under the undrawn portion of its Letter of Credit Commitment at any time; provided, however, that (i) except in the case of an assignment to a Person that immediately prior to such assignment was an Issuing Bank or an assignment of all of an Issuing Bank’s rights and obligations under this Agreement, the amount of the Letter of Credit Commitment of the assigning Issuing Bank being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $5,000,000 and shall be in an integral multiple of $1,000,000 in excess thereof, (ii) each such assignment shall be to an Eligible Assignee and (iii) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together with a processing and recordation fee of $3,500, provided that such fee shall not be payable if the assigning Issuing Bank is making such assignment simultaneously with the assignment in its capacity as a Lender of all or a portion of its Revolving Credit Commitment to the same Eligible Assignee. (g) Each Lender Party may sell participations to one or more Persons (other than any Loan Party or any of its Affiliates) in or to all or a portion of its rights and obligations under this Agreement (~~including~~ including, without limitation, all or a portion of its ~~Term Loan~~ Commitments, the ~~Term Loan~~ Advances owing to it and the Note or Notes (if any) held by it); provided, however, that (i) such ~~Lender~~Lender Party’s obligations under this Agreement (~~including~~ including, without limitation, its ~~Term Loan~~ Commitments) shall remain unchanged, (ii) such Lender Party shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) such Lender Party shall remain the holder of any such Note for all purposes of this Agreement, (iv) the ~~Borrowers~~Borrower, the ~~Agents~~ Administrative Agent and the other ~~Lenders~~ Lender Parties shall continue to deal solely and directly with such Lender Party in connection with such ~~Lender~~Lender Party’s rights and obligations under this ~~Agreement and~~ Agreement, (v) no participant under any such participation shall have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent ~~requires~~ would reduce the ~~consent~~ principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, or postpone any date fixed for any payment of ~~all Lenders~~principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, and (vi) if, at the time of such sale, such Lender Party was entitled to payments under Section 2.12(a) in respect of United States withholding tax with respect to interest paid at such date, then, to such extent, the term Taxes shall include (in addition to withholding taxes that may be imposed in the future or other amounts otherwise includable in Taxes) United States withholding tax, if any, applicable with respect to such participant on such date; provided that such participant complies with the requirements of Section 2.12(e). (h) Any Lender Party may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section ~~8.07~~9.07, disclose to the assignee or participant or proposed assignee or participant any information relating to the ~~Borrowers~~ Borrower furnished to such Lender Party by or on behalf of the ~~Borrowers~~Borrower; provided, however, 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 received by it from such Lender ~~in accordance with the terms of Section 8.09~~Party. (i) Notwithstanding any other provision set forth in this Agreement, any Lender Party may at any time create a security interest in all or any portion of its rights under this Agreement (~~including~~ including, without limitation, the ~~Term Loan~~ 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 System. (j) Notwithstanding anything to the contrary contained herein, any Lender that is a fund that invests in bank loans may create a security interest in all or any portion of the Term Loan Advances owing to it and the Note or Notes held by it to the trustee for holders of obligations owed, or securities issued, by such fund as security for such obligations or securities, provided, that unless and until such trustee actually becomes a Lender in compliance with the other provisions of this Section 8.07, (i) no such pledge shall release the pledging Lender from any of its obligations under the Loan Documents and (ii) such trustee shall not be entitled to exercise any of the rights of a Lender under the Loan Documents even though such trustee may have acquired ownership rights with respect to the pledged interest through foreclosure or otherwise. (k) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Lender”) may grant to a special purpose funding vehicle identified as such in writing from time to time by the Granting Lender to the Administrative Agent and BMCA (an “SPC”) the option to provide all or any part of any Term Loan Advance that such Granting Lender would otherwise be obligated to make pursuant to this Agreement, provided that (i) nothing herein shall constitute a commitment by any SPC to fund any Term Loan Advance, and (ii) if an SPC elects not to exercise such option or otherwise fails to make all or any part of such Term Loan Advance, the Granting Lender shall be obligated to make such Term Loan Advance pursuant to the terms hereof. The making of an Advance by an SPC hereunder shall utilize the Term Loan Commitment of the Granting Lender to the same extent, and as if, such Term Loan Advance were made by such Granting Lender. Each party hereto hereby agrees that (i) no SPC shall be liable for any indemnity or similar payment obligation under this Agreement for which a Lender would be liable, (ii) no SPC shall be entitled to the benefits of Sections 2.09 and 2.11 (or any other increased costs protection provision) and (iii) the Granting Bank shall for all purposes, including the approval of any amendment or waiver of any provision of any Loan Document, remain the Lender of record hereunder. In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior Debt of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency, or liquidation proceeding under the laws of the United States or any State thereof. Notwithstanding anything to the contrary contained in this Agreement, any SPC may (i) with notice to, but without prior consent of, BMCA and the Administrative Agent and with the payment of a processing fee of $500 and without paying any processing fee therefor, assign all or any portion of its interest in any Term Loan Advance to the Granting Lender and (ii) disclose on a confidential basis any non-public information relating to its funding of Term Loan Advance to any rating agency, commercial paper dealer or provider of any surety or guarantee or credit or liquidity enhancement to such SPC. This subsection (k) may not be amended without the prior written consent of each Granting Lender, all or any part of whose Term Loan Advances are being funded by the SPC at the time of such amendment.

Appears in 1 contract

Samples: Revolving Credit Agreement (Sunstone Hotel Investors, Inc.)

Assignments and Participations. (a) Each Lender ~~may, upon at least five Business Days’ notice to such Lender and the Administrative Agent,~~ may assign to one or more Eligible Assignees all or a portion of its rights and obligations under this Agreement (~~including~~ including, without limitation, all or a portion of its ~~Term Loan Commitment~~Commitment or Commitments, the ~~Term Loan~~ Advances owing to it and the Note or Notes held by it); provided, however, that (i) ~~each such assignment shall be of a uniform, and not a varying, percentage of all rights and obligations under this Agreement, (ii)~~ except in the case of an assignment to a Person that, immediately prior to such assignment, was a ~~Lender,~~ Lender (or an Affiliate of ~~any Lender or an Approved Fund of any Lender~~ a Lender) or an assignment of all of a Lender’s 's rights and obligations under this Agreement, the ~~aggregate~~ amount of the ~~Term Loan Commitments or Term Loan Advances~~ Commitment of the assigning Lender being assigned ~~to such Eligible Assignee~~ pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $5,000,000 (or such lesser amount as shall be approved by the Administrative Agent and, so long as no Default shall have occurred and be continuing at the time of effectiveness of such assignment, BMCA)1,000,000, (~~iii~~ii) ~~each such assignment shall be to an Eligible Assignee, (iv) except in the case of an assignment by a Person that, immediately prior to such assignment, was a Lender, to one of its Affiliates,~~ no such assignments shall be permitted without the prior consent of the Administrative Agent and, so long as no Event of Default ~~shall have occurred and be continuing at~~ or Default then exists, the ~~time of effectiveness of such assignment, BMCA~~ Borrower (in ~~each~~ either case, which consents shall not be unreasonably withheld), (iii) no such assignment shall be permitted if, immediately after giving effect thereto, the Borrower would be required to make payments to or on behalf of the assignee Lender Party pursuant to Section 2.10(a) or (b) or 2.12 and the assignor Lender Party was not, at the time of such assignment, entitled to receive any payment pursuant to Section 2.10(a) or (b) or 2.12, and (viv) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together with any Note or Notes subject to such assignment and a processing and recordation fee of $~~3,500~~3,500 (other than with respect to an assignment to one or more of a Lender's Affiliates, in which event such fee shall be $1,500, and other than with respect to an assignment by or to Bank of America, in which event such fee shall not apply). (b) Upon such execution, delivery, acceptance and recording, from and after the effective date specified in such Assignment and Acceptance, (ix) the assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, have the rights and obligations of a Lender or Issuing Bank, as the case may be, hereunder and (iiy) the Lender or Issuing Bank assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights ~~(other than its rights under Sections 2.09, 2.11 and 8.04 to the extent any claim thereunder relates to an event arising prior to such assignment)~~ and be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all of or the remaining portion of an assigning Lender’s 's or Issuing Bank's rights and obligations under this Agreement, such Lender or Issuing Bank shall cease to be a party hereto). (c) By executing and delivering an Assignment and Acceptance, ~~each~~ the Lender Party assignor thereunder and ~~each~~ the assignee thereunder confirm to and agree with each other and the other parties ~~thereto and~~ hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender Party makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or any other Loan Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value of, or the perfection or priority of any lien or security interest created or purported to be created under or in connection with, this Agreement or any other Loan Document or any other instrument or document furnished pursuant hereto or thereto; (ii) such assigning Lender Party makes no representation or warranty and assumes no responsibility with respect to the financial condition of the Borrower or any other Loan Party or the performance or observance by any Loan Party of any of its obligations under any Loan Document or any other instrument or document furnished pursuant thereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section ~~4.01~~ 4.6 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) such assignee will, independently and without reliance upon ~~any~~ the Administrative Agent, such assigning Lender Party or any other Lender Party and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) such assignee confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes ~~each~~ the Administrative Agent to take such action as agent on its behalf and to exercise such powers and discretion under this Agreement and the other Loan Documents as are delegated to ~~such~~ the Administrative Agent by the terms hereof and thereof, together with such powers and discretion as are reasonably incidental thereto; and (vii) such assignee agrees that it will perform in accordance with their terms all of the obligations ~~that~~ which by the terms of this Agreement are required to be performed by it as a ~~Lender~~Lender or Issuing Bank, as the case may be. (d) The Administrative Agent ~~acting for this purpose (but only for this purpose) as the agent of the Borrowers,~~ shall maintain at its address referred to in Section ~~8.02~~ 11.2 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~~ Lender Parties and the ~~Term Loan~~ Commitment under each Facility of, and principal amount of the ~~Term Loan~~ Advances owing under each Facility to, each Lender Party from time to time (the “"Register”"). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the ~~Borrowers~~Borrower, the ~~Agents~~ Administrative Agent and the ~~Lenders shall~~ Lender Parties may treat each Person whose name is recorded in the Register as a Lender Party hereunder for all purposes of this Agreement. The Register shall be available for inspection by the ~~Borrowers or any Agent~~ Borrower or any Lender Party at any reasonable time and from time to time upon reasonable prior notice. (e) Notwithstanding anything to the contrary contained in clause (b) above, the Term Loan Advances (including the Notes evidencing such Term Loan Advances) are registered obligations and the right, title, and interest of the Lenders and their assignees in and to such Term Loan Advances . No assignment shall be ~~transferable only upon notation of such transfer~~ effective unless and until the Assignment and Acceptance has been accepted by the Administrative Agent and registered in the Register. A Note shall only evidence the Lender’s or an assignee’s right title and interest in and to the related Term Loan Advance, and in no event is any such Note to be considered a bearer instrument or obligation. This Section ~~8.07~~ 11.7(d) shall be construed so that the ~~Term Loan Advances~~ Notes are at all times maintained in “"registered form~~” within the meaning~~ " for purposes of ~~sections~~ Internal Revenue Code Sections 163(f), 871(h)(2) and 881(c)(2) ~~of the Internal Revenue Code~~ and any related regulations promulgated thereunder (or any successor provisions of the Internal Revenue Code or such regulations)~~. Solely for purposes of this and for tax purposes only, the Administrative Agent shall act as each Borrower’s agent for purposes of maintaining such notations of transfer in the Register~~. (fe) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender Party and an assignee, together with any Note or Notes subject to such ~~assignment~~assignment and the appropriate processing and reconciliation fee, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit C A hereto, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to ~~BMCA and each other Agent~~the Borrower. In the case of any assignment by a Lender, within ~~five~~ ten (10) Business Days after its receipt of such ~~notice~~notice and the return of the old Notes (or a customary indemnity with respect to any lost Notes), the ~~Borrowers~~Borrower, at ~~their~~ its own expense, ~~shall, if requested by the assignee,~~ shall execute and deliver to the Administrative Agent in exchange for the surrendered Note or Notes ~~an amended and restated~~ a new Note ~~(which shall be marked “Amended and Restated”)~~ to the order of such Eligible Assignee in an amount equal to the ~~Term Loan~~ Commitment assumed by it under ~~each~~ a Facility pursuant to such Assignment and Acceptance and, if ~~any~~ the assigning Lender has retained a ~~Term Loan~~ Commitment hereunder under such ~~Facility and has requested~~ Facility, a ~~replacement Note, an amended and restated~~ new Note to the order of ~~such~~ the assigning Lender in an amount equal to the ~~Term Loan~~ Commitment retained by it hereunder. Such ~~amended and restated~~ 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 Assignment and Acceptance and shall otherwise be in substantially the form of Exhibit A B, C or D hereto, as the case may be . (f) Each Issuing Bank may assign to an Eligible Assignee all of its rights and obligations under the undrawn portion of its Letter of Credit Commitment at any time; provided, however, that (i) each such assignment shall be to an Eligible Assignee and (ii) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together with a processing and recordation fee of $3,500 (other than with respect to an assignment by or to Bank of America). (g) Each Lender Party may sell participations to one or more Persons (other than any Loan Party or any of its Affiliates) in or to all or a portion of its rights and obligations under this Agreement (~~including~~ including, without limitation, all or a portion of its ~~Term Loan~~ Commitments, the ~~Term Loan~~ Advances owing to it and the Note or ~~Notes (~~Notes, if any) , held by it); provided, however, that (i) such ~~Lender’s~~ Lender Party's obligations under this Agreement (~~including~~ including, without limitation, its ~~Term Loan~~ Commitments) shall remain unchanged, (ii) such Lender Party shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) such Lender Party shall remain the holder of any such Note for all purposes of this Agreement, (iv) the ~~Borrowers~~Borrower, the ~~Agents~~ Administrative Agent and the other ~~Lenders~~ Lender Parties shall continue to deal solely and directly with such Lender Party in connection with such ~~Lender’s~~ Lender Party's rights and obligations under this Agreement and (v) no participant under any such participation shall have any right to approve any ~~amendment~~ amendment, waiver or ~~waiver~~ other modification of any provision of this Agreement or any other Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, ~~waiver~~ waiver, modification or consent ~~requires~~ would reduce the ~~consent~~ rate of interest or extend the final scheduled maturity of any Advance or Note, or the date for payment of any fees or other interest on any Advance, or waive or excuse any such payment or any part thereof, or decrease the rate of interest on any Advance, or reduce the principal amount thereof, in each case to the extent subject to such participation, or release all ~~Lenders~~or substantially all of the Collateral (except as expressly provided in the Collateral Documents) under all of the Collateral Documents. If a Lender Party that is not a United States Person with the meaning of Internal Revenue Code Section 7701 sells a participating interest pursuant to this Section 11.7(g) (or otherwise ceases to own a beneficial interest in all or a portion of its rights and obligations under this Agreement for purposes of Treasury Regulation Section 1.1441-1(c)(6)) such Lender Party shall provide the Borrower and the Administrative Agent with revised forms required by Section 2.12(c) reflecting the portion of the rights and obligations under this Agreement which have been sold on an Internal Revenue Service form W-8IMY (including the required attachments thereto) and that portion of the rights and obligations retained on an Internal Revenue Service form W-8BEN or W-8ECI, as appropriate. (h) Any Lender Party may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section ~~8.07~~11.7, disclose to the assignee or participant or proposed assignee or ~~participant~~ participant, any information relating to the ~~Borrowers~~ Borrower furnished to such Lender Party by or on behalf of the ~~Borrowers~~Borrower; provided, however, 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 received by it from such Lender Party in accordance with the terms of set forth in Section ~~8.09~~11.10. (i) Notwithstanding any other provision set forth in this Agreement, any Lender Party may at any time create a security interest in all or any portion of its rights under this Agreement (~~including~~ including, without limitation, the ~~Term Loan~~ 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 ~~System. (j) Notwithstanding anything to~~ System without notice to, or the ~~contrary contained herein~~consent of, the Borrower or the Administrative Agent and any Lender ~~that~~ which is a fund ~~that invests in bank loans~~ may ~~create a security interest in~~ pledge all or any portion of ~~the Term Loan~~ Advances owing to it ~~and~~ or the Note or Notes held by it to ~~the~~ its trustee ~~for holders~~ in support of its obligations ~~owed~~to its trustee. No such pledge, assignment or ~~securities issued, by such fund as~~ creation of security ~~for such obligations or securities, provided, that unless and until such trustee actually becomes a Lender in compliance with the other provisions of this Section 8.07, (i) no such pledge~~ interest shall release the ~~pledging~~ transferor Lender from ~~any of~~ its obligations under the Loan Documents and (ii) such trustee shall not be entitled to exercise any of the rights of a Lender under the Loan Documents even though such trustee may have acquired ownership rights with respect to the pledged interest through foreclosure or otherwise. (k) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Lender”) may grant to a special purpose funding vehicle identified as such in writing from time to time by the Granting Lender to the Administrative Agent and BMCA (an “SPC”) the option to provide all or any part of any Term Loan Advance that such Granting Lender would otherwise be obligated to make pursuant to this Agreement, provided that (i) nothing herein shall constitute a commitment by any SPC to fund any Term Loan Advance, and (ii) if an SPC elects not to exercise such option or otherwise fails to make all or any part of such Term Loan Advance, the Granting Lender shall be obligated to make such Term Loan Advance pursuant to the terms hereof. The making of an Advance by an SPC hereunder shall utilize the Term Loan Commitment of the Granting Lender to the same extent, and as if, such Term Loan Advance were made by such Granting Lender. Each party hereto hereby agrees that (i) no SPC shall be liable for any indemnity or similar payment obligation under this Agreement for which a Lender would be liable, (ii) no SPC shall be entitled to the benefits of Sections 2.09 and 2.11 (or any other increased costs protection provision) and (iii) the Granting Bank shall for all purposes, including the approval of any amendment or waiver of any provision of any Loan Document, remain the Lender of record hereunder. In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior Debt of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency, or liquidation proceeding under the laws of the United States or any State thereof. Notwithstanding anything to the contrary contained in this Agreement, any SPC may (i) with notice to, but without prior consent of, BMCA and the Administrative Agent and with the payment of a processing fee of $500 and without paying any processing fee therefor, assign all or any portion of its interest in any Term Loan Advance to the Granting Lender and (ii) disclose on a confidential basis any non-public information relating to its funding of Term Loan Advance to any rating agency, commercial paper dealer or provider of any surety or guarantee or credit or liquidity enhancement to such SPC. This subsection (k) may not be amended without the prior written consent of each Granting Lender, all or any part of whose Term Loan Advances are being funded by the SPC at the time of such amendment.

Appears in 1 contract

Samples: Credit Agreement (Team Health Inc)

Assignments and Participations. (a) Each Lender and the Issuing Bank may, ~~upon at least five Business Days’ notice to such Lender and~~ with the prior consent of the Administrative Agent, assign to one or more ~~Eligible Assignees~~ banks or other entities all or a portion of its rights and obligations under this Agreement (including without limitation all or a portion of its ~~Term Loan~~ Commitment, and the ~~Term Loan Advances~~ Loans owing to it it), and the ~~Note or Notes held by it)~~Issuing Bank may assign its Letter of Credit Commitment; ~~provided, however, that~~ provided that: (i) any such assignment by an Issuing Bank of its Letter of Credit Commitment shall be of its entire Letter of Credit Commitment; (ii) in the case of each such assignment ~~shall be~~ of a ~~uniform, and not a varying, percentage of all rights and obligations under this Agreement,~~ Commitment (~~ii)~~ except in the case of an assignment to a Person that, immediately prior to such assignment, was a ~~Lender, an Affiliate of any Lender or an Approved Fund of any~~ Lender or an assignment of all of a Lender’s rights and obligations under this Agreement), (A) the ~~aggregate~~ amount of the ~~Term Loan Commitments or Term Loan Advances~~ Commitment of the assigning Lender being assigned ~~to such Eligible Assignee~~ pursuant to such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than U.S. $5,000,000 ~~(or such lesser amount as~~ and shall be ~~approved by~~ an integral multiple of U.S. $500,000 in excess thereof, and (B) the ~~Administrative Agent and~~assignor shall simultaneously assign to the assignee a ratable share of (1) all participations in Letters of Credit issued for the account of Borrowers and then outstanding, ~~so long~~ and (2) all Letter of Credit Advances then owing to such Lender as ~~no Default shall have occurred and be continuing at~~ a result of draws on Letters of Credit issued for the ~~time~~ account of ~~effectiveness of such assignment, BMCA),~~ Borrowers; (iii) ~~each~~ such assignment shall be to an Eligible Assignee, ; and (iv) ~~except in~~ the ~~case of~~ proposed assignment (if other than an assignment by a ~~Person that, immediately prior~~ Lender to an Affiliate or Approved Fund of such ~~assignment, was a~~ Lender~~, to one of its Affiliates, no such assignments~~ ) shall be ~~permitted without the consent of~~ approved by (x) the Administrative ~~Agent and~~Agent, ~~so long as~~ and (y) if no Default ~~shall have occurred and be continuing at~~ then exists, AGCO; the ~~time of effectiveness of such assignment, BMCA (~~foregoing approvals in each ~~case, which consents shall~~ case not to be unreasonably ~~withheld) and~~ withheld or delayed; and (v) the parties to each such assignment shall execute and deliver to the Administrative ~~Agent~~Agent for its own account, for its acceptance and recording in the Register, an Assignment and Acceptance, together with ~~any Note or Notes subject to such assignment and~~ a processing and recordation fee of U.S. $3,500, payable by the assignee to the Administrative Agent (with only one such fee payable in connection with contemporaneous assignments pursuant to the same Assignment and Acceptance to or by two or more Approved Funds of a single Lender). (b) Upon such execution, delivery, acceptance and recording, from and after the effective date specified in such Assignment and Acceptance, : (i) the assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder or under any other Loan Document have been assigned to it pursuant to such Assignment and Acceptance, shall have the rights and obligations of a Lender ~~hereunder and~~ hereunder; and (ii) the Lender assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights ~~(other than its rights under Sections 2.09, 2.11 and 8.04 to the extent any claim thereunder relates to an event arising prior to such assignment)~~ and be released from its obligations under this Agreement and under each other Loan Document (and, in the case of an Assignment and Acceptance covering all of or the remaining portion of an assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto). (c) By executing and delivering an Assignment and Acceptance, ~~each~~ the Lender assignor thereunder and ~~each~~ the assignee thereunder confirm to and agree with each other and the other parties ~~thereto and~~ hereto as follows: : (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with ~~any Loan Document~~ this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value ~~of, or the perfection or priority~~ of ~~any lien or security interest created or purported to be created under or in connection with, any Loan Document~~ this Agreement or any other instrument or document furnished pursuant ~~thereto;~~ hereto; (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any ~~Loan Party~~ Borrower or the performance or observance by any ~~Loan Party~~ Borrower of any of its obligations under ~~any Loan Document~~ this Agreement or any other instrument or document furnished pursuant ~~thereto;~~ hereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in ~~Section 4.01~~ Sections 3.1 and 3.2 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; ; (iv) such assignee will, independently and without reliance upon ~~any~~ either Agent, such assigning Lender or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; ; (v) such assignee confirms that it is an Eligible ~~Assignee;~~ Assignee or an Affiliate of the assignor; (vi) such assignee appoints and authorizes ~~each~~ the Administrative Agent to take such action as agent on its behalf and to exercise such powers and discretion under ~~the Loan Documents~~ this Agreement as are delegated to ~~such~~ the Administrative Agent by the terms ~~hereof and thereof~~hereof, together with such powers and discretion as are reasonably incidental thereto~~; and~~ ; (vii) such assignee agrees that it will perform in accordance with their terms all of the obligations that by the terms of this Agreement are required to be performed by it as a Lender; and (viii) that the benefit of the security interests and guarantees attached to the rights being assigned shall be transferred to the benefit of the assignee upon the completion of such assignment. (d) The Administrative Agent ~~acting for this purpose (but only for this purpose) as the agent of the Borrowers,~~ shall maintain at its address referred to in Section ~~8.02~~ 10.2 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 Issuing Bank and the Lenders and ~~the Term Loan~~ their respective Commitment under each Facility of, ~~and~~ the principal amount of the ~~Term Loan Advances to,~~ Loans owing under each Facility 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 Borrowers, the ~~Agents~~ Administrative Agent, the Issuing Bank and the Lenders ~~shall~~ 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 ~~Agent~~ Borrower, Issuing Bank or any Lender at any reasonable time and from time to time upon reasonable prior notice. (e) Notwithstanding anything to the contrary contained in clause (b) above, the Term Loan Advances (including the Notes evidencing such Term Loan Advances) are registered obligations and the right, title, and interest of the Lenders and their assignees in and to such Term Loan Advances shall be transferable only upon notation of such transfer in the Register. A Note shall only evidence the Lender’s or an assignee’s right title and interest in and to the related Term Loan Advance, and in no event is any such Note to be considered a bearer instrument or obligation. This Section 8.07 shall be construed so that the Term Loan Advances are at all times maintained in “registered form” within the meaning of sections 163(f), 871(h)(2) and 881(c)(2) of the Internal Revenue Code and any related regulations (or any successor provisions of the Internal Revenue Code or such regulations). Solely for purposes of this and for tax purposes only, the Administrative Agent shall act as each Borrower’s agent for purposes of maintaining such notations of transfer in the Register. (f) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee~~, together with any Note or Notes subject to such assignment~~, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit C A hereto, : (i~~) accept such Assignment and Acceptance, (ii~~) record the information contained therein in the ~~Register and~~ Register; and (~~iii~~ii) give prompt notice thereof to ~~BMCA and each other Agent. In the case of any assignment by a Lender, within five Business Days after its receipt of such notice,~~ the Borrowers, at their own expense, shall, if requested by the assignee, execute and deliver to the Administrative Agent in exchange for the surrendered Note or Notes an amended and restated Note (which shall be marked “Amended and Restated”) to the order of such Eligible Assignee in an amount equal to the Term Loan Commitment assumed by it under each Facility pursuant to such Assignment and Acceptance and, if any assigning Lender has retained a Term Loan Commitment hereunder under such Facility and has requested a replacement Note, an amended and restated Note to the order of such assigning Lender in an amount equal to the Term Loan Commitment retained by it hereunder. Such amended and restated 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 Assignment and Acceptance and shall otherwise be in substantially the form of Exhibit A hereto. (gf) Each Lender may sell participations ~~to one or more Persons (other than any Loan Party or any of its Affiliates)~~ in or to all or a portion of its rights and obligations under this Agreement (including without limitation all or a portion of its ~~Term Loan Commitments,~~ Commitment and the ~~Term Loan Advances~~ Loans owing to ~~it and the Note or Notes~~ it) to a financial institution (~~if any) held by it~~a “Participant”); ~~provided, however, that~~ provided that; (i) such Lender’s obligations under this Agreement (including without limitation its ~~Term Loan Commitments~~Commitment) shall remain unchanged, ; (ii) 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, (iv~~) the Borrowers, the ~~Agents~~ Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this ~~Agreement and~~ Agreement; and (viv) no ~~participant~~ Participant under any such participation shall have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent ~~requires~~ would reduce or forgive any principal due hereunder, or reduce the ~~consent~~ rate of ~~all Lenders~~interest or any fees payable hereunder, in each case to the extent subject to such participation, postpone any scheduled date for any payment of interest or fees hereunder or extend the Maturity Date, in each case to the extent subject to such participation, except in accordance with the terms hereof or of any other Loan Document; and (v) no Participant under any such participation shall have any greater benefits or rights than such Lender with respect to fees or yield maintenance provisions of this Agreement. (hg) Any Lender may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section ~~8.07~~10.7, disclose to the assignee or ~~participant~~ Participant or proposed assignee or ~~participant~~ Participant, any public information relating to ~~the Borrowers~~ any Borrower furnished to such Lender by or on behalf of such Borrower and any information conspicuously labeled by a Borrower as being confidential at the ~~Borrowers; provided, however, that, prior~~ time such information is furnished to ~~any~~ such ~~disclosure, the~~ Lender if such assignee or ~~participant~~ Participant or proposed assignee or ~~participant shall agree~~ Participant has agreed to ~~preserve the confidentiality of any Confidential Information received by it from~~ use reasonable efforts to keep such ~~Lender in accordance with the terms of Section 8.09~~information confidential. (ih) Notwithstanding any other provision set forth in this Agreement, any Lender may at any time create a security interest in all or any portion of its rights under this Agreement (including without limitation the ~~Term Loan Advances~~ Loans 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 ~~System. (j) Notwithstanding anything to the contrary contained herein,~~ System and any Lender that is a fund ~~that invests in bank loans~~ may create a security interest in all or any portion of the Term Loan Advances owing to it and the Note or Notes held by it to the trustee for holders of obligations owed, or securities issued, by such fund as security for such obligations or securities, provided, that unless and until such trustee actually becomes a Lender in compliance with the other provisions of this Section 8.07, (i) no such pledge shall release the pledging Lender from any of its obligations under the Loan Documents and (ii) such trustee shall not be entitled to exercise any of the rights of a Lender under the Loan Documents even though such trustee may have acquired ownership rights with respect to the pledged interest through foreclosure or otherwise. (k) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Lender”) may grant to a special purpose funding vehicle identified as such in writing from time to time by the Granting Lender to the Administrative Agent and BMCA (an “SPC”) the option to provide all or any part of any Term Loan Advance that such Granting Lender would otherwise be obligated to make pursuant to this Agreement, provided that (i) nothing herein shall constitute a commitment by any SPC to fund any Term Loan Advance, and (ii) if an SPC elects not to exercise such option or otherwise fails to make all or any part of such Term Loan Advance, the Granting Lender shall be obligated to make such Term Loan Advance pursuant to the terms hereof. The making of an Advance by an SPC hereunder shall utilize the Term Loan Commitment of the Granting Lender to the same extent, and as if, such Term Loan Advance were made by such Granting Lender. Each party hereto hereby agrees that (i) no SPC shall be liable for any indemnity or similar payment obligation under this Agreement for which a Lender would be liable, (ii) no SPC shall be entitled to the benefits of Sections 2.09 and 2.11 (or any other increased costs protection provision) and (iii) the Granting Bank shall for all purposes, including the approval of any amendment or waiver of any provision of any Loan Document, remain the Lender of record hereunder. In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior Debt of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency, or liquidation proceeding under the laws of the United States or any State thereof. Notwithstanding anything to the contrary contained in this Agreement, any SPC may (i) with notice to, but without prior consent of, BMCA and the Administrative Agent and with the payment of a processing fee of $500 and without paying any processing fee therefor, assign all or any portion of its ~~interest in any Term Loan Advance~~ rights under this Agreement (including without limitation the Loans owing to ~~the Granting Lender and (ii~~it) ~~disclose on a confidential basis any non-public information relating~~ to its ~~funding~~ trustee in support of ~~Term Loan Advance~~ its obligations to any rating agency, commercial paper dealer or provider of any surety or guarantee or credit or liquidity enhancement to such SPC. This subsection (k) may not be amended without the prior written consent of each Granting Lender, all or any part of whose Term Loan Advances are being funded by the SPC at the time of such amendmentits trustee.

Appears in 1 contract

Samples: Credit Agreement (Agco Corp /De)

Assignments and Participations. (a) Each Lender ~~may~~may and, so long as no Default shall have occurred and be continuing, if demanded by the Borrower pursuant to Section 2.14 upon at least five Business Days’ notice to such Lender and the Administrative Agent, will assign to one or more Eligible Assignees all or a portion of its rights and obligations under this Agreement (~~including~~ including, without limitation, all or a portion of its ~~Term Loan Commitment~~Commitment or Commitments, the ~~Term Loan~~ Advances owing to it and the Note or Notes held by it); provided, however, that (i~~) each such assignment shall be of a uniform, and not a varying, percentage of all rights and obligations under this Agreement, (ii~~) except in the case of an assignment to a Person that, immediately prior to such assignment, was a Lender, an Affiliate of any Lender or an Approved Fund of any Lender or an assignment of all of a Lender’s rights and obligations under this Agreement, the aggregate amount of the ~~Term Loan~~ Commitments ~~or Term Loan Advances~~ being assigned to such Eligible Assignee pursuant to such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $~~5,000,000~~ 1,000,000 (or such lesser amount as shall be approved by the Administrative ~~Agent and, so long~~ Agent); provided that simultaneous assignments by two or more Related Funds shall be treated as ~~no Default shall have occurred and be continuing at~~ one assignment for purposes of the ~~time of effectiveness of such assignment, BMCA)~~minimum assignment requirement, (~~iii~~ii) each such assignment shall be to an Eligible ~~Assignee, (iv) except in~~ Assignee and to the ~~case of an~~ extent such assignment ~~by a Person~~ is to any Eligible Assignee that, immediately prior to such assignment, was not a Lender, an Affiliate of a Lender or an Approved Fund, the Administrative Agent shall have consented to such assignment (in each case such consent not to be unreasonably withheld or delayed), (iii) each such assignment made as a result of a demand by the Borrower pursuant to Section 2.14 or 9.01 shall be arranged by the Borrower after consultation with the Administrative Agent and shall be either an assignment of all of the rights and obligations of the assigning Lender under this Agreement or an assignment of a portion of such rights and obligations made concurrently with another such assignment or other such assignments that together cover all of the rights and obligations of the assigning Lender under this Agreement, (iv) no Lender shall be obligated to make any such assignment as a result of a demand by the Borrower pursuant to Section 2.14 or 9.01 unless and until such Lender shall have received one or more payments from either the Borrower or one or more Eligible Assignees in an aggregate amount at least equal to the aggregate outstanding principal amount of ~~its Affiliates~~the Advances owing to such Lender, together with accrued interest thereon to the date of payment of such principal amount and all other amounts payable to such Lender under this Agreement, (v) no such assignments shall be permitted without the consent of the Administrative Agent ~~and, so long as no Default~~ until the Administrative Agent shall have ~~occurred and be continuing at~~ notified the ~~time~~ Lenders that syndication of ~~effectiveness of such assignment, BMCA (in each case, which consents shall not be unreasonably withheld)~~ the Commitments hereunder has been completed and (vvi) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and ~~Acceptance~~Acceptance via an electronic settlement system acceptable to the Administrative Agent (or, if previously agreed with the Administrative Agent, manually), together with (A) any Note or Notes (if any) subject to such ~~assignment~~ assignment, (B) an administrative questionnaire and tax forms, if applicable and (C) a LSP Gen Finance Second Lien Credit Agreement processing and recordation fee of $~~3,500~~3,500 (which fee may be waived or reduced in the sole discretion of the Administrative Agent); provided, however, that only one such fee shall be payable with respect to simultaneous assignments by or to one or more Related Funds; provided further that for each such assignment made as a result of a demand by the Borrower pursuant to Section 2.14 or 9.01, the Borrower shall pay to the Administrative Agent the applicable processing and recordation fee. (b) Upon such execution, delivery, acceptance and recording, from and after the effective date specified in such 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, have the rights and obligations of a Lender hereunder and (ii) the Lender assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (other than its rights under Sections ~~2.09~~2.10, ~~2.11~~ 2.12 and ~~8.04~~ 9.04 to the extent any claim thereunder relates to an event arising prior to such assignment) and be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all of the remaining portion of an assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto). (c) By executing and delivering an Assignment and Acceptance, each Lender assignor thereunder and each assignee thereunder confirm to and agree with each other and the other parties thereto and hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with any Loan Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value of, or the perfection or priority of any lien or security interest created or purported to be created under or in connection with, any Loan Document or any other instrument or document furnished pursuant thereto; (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party or the performance or observance by any Loan Party of any of its obligations under any Loan Document or any other instrument or document furnished pursuant thereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 4.01 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) such assignee will, independently and without reliance upon any Agent, such assigning Lender or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) such assignee confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes each Agent to take such action as agent on its behalf and to exercise such powers and discretion under the Loan Documents as are delegated to such Agent by the terms hereof and thereof, together with such powers and discretion as are reasonably incidental thereto; and (vii) such assignee agrees that it will perform in accordance with their terms all of the obligations that by the terms of this Agreement or any other Loan Document (including the Intercreditor Agreement) are required to be performed by it as a Lender.. LSP Gen Finance Second Lien Credit Agreement (d) The Administrative ~~Agent~~ Agent, acting for this purpose (but only for this purpose) as the agent of the ~~Borrowers~~Borrower, shall maintain at its address referred to in Section ~~8.02~~ 9.02 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 Lenders and the ~~Term Loan~~ Commitment under each Facility of, and principal amount of the ~~Term Loan~~ Advances owing under each Facility 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 ~~Borrowers~~Borrower, the Agents and the Lenders shall treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the ~~Borrowers~~ Borrower or any Agent or any Lender at any reasonable time and from time to time upon reasonable prior notice. (e) Notwithstanding anything to the contrary contained in clause (b) above, the Term Loan Advances (including the Notes evidencing such Term Loan Advances) are registered obligations and the right, title, and interest of the Lenders and their assignees in and to such Term Loan Advances shall be transferable only upon notation of such transfer in the Register. A Note shall only evidence the Lender’s or an assignee’s right title and interest in and to the related Term Loan Advance, and in no event is any such Note to be considered a bearer instrument or obligation. This Section 8.07 shall be construed so that the Term Loan Advances are at all times maintained in “registered form” within the meaning of sections 163(f), 871(h)(2) and 881(c)(2) of the Internal Revenue Code and any related regulations (or any successor provisions of the Internal Revenue Code or such regulations). Solely for purposes of this and for tax purposes only, the Administrative Agent shall act as each Borrower’s agent for purposes of maintaining such notations of transfer in the Register. (f) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee, together with any Note or Notes (if any) subject to such assignment, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit C A hereto, (i) accept such Assignment and ~~Acceptance,~~ Acceptance and (ii) record the information contained therein in the ~~Register and (iii) give prompt notice thereof to BMCA and each other Agent~~Register. In the case of any assignment by a Lender, within five Business Days after its receipt of such notice, the ~~Borrowers~~Borrower, at ~~their~~ its own expense, ~~shall, if requested by the assignee,~~ shall execute and deliver to the Administrative Agent in exchange for the surrendered Note or Notes ~~an amended and restated~~ (if any) a new Note ~~(which shall be marked “Amended and Restated”)~~ to the order of such Eligible Assignee in an amount equal to the ~~Term Loan~~ Commitment assumed by it under ~~each~~ the Facility pursuant to such Assignment and Acceptance and, if any assigning Lender that had a Note or Notes prior to such assignment has retained a ~~Term Loan~~ Commitment hereunder under such ~~Facility and has requested~~ Facility, a ~~replacement Note, an amended and restated~~ new Note to the order of such assigning Lender in an amount equal to the ~~Term Loan~~ Commitment retained by it hereunder. Such ~~amended and restated~~ 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 Assignment and Acceptance and shall otherwise be in substantially the form of Exhibit A B hereto. (gf) Each Lender may sell participations to one or more Persons (other than any Loan Party or any of its Affiliates) in or to all or a portion of its rights and obligations under this Agreement (~~including~~ including, without limitation, all or a portion of its ~~Term Loan~~ Commitments, the ~~Term Loan~~ Advances owing to it and the Note or Notes (if any) held by it); provided, however, that (i) such Lender’s obligations under this Agreement (~~including~~ including, without limitation, its ~~Term Loan~~ Commitments) shall remain unchanged, (ii) 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, (iv) the ~~Borrowers~~Borrower, the Agents and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this ~~Agreement~~ Agreement, and ~~(v) no participant under any~~ such ~~participation~~ Lender shall ~~have any~~ retain the sole right to enforce the obligations of the Borrower relating to the Advances and to approve any ~~amendment~~ amendment, modification or waiver of any provision of this Agreement (other than amendments, modifications or waivers decreasing any ~~Loan Document~~fees payable hereunder or the amount of principal of or the rate at which interest is payable on the Advances, extending any scheduled principal date or date fixed for the payment of interest on the Advances, increasing or extending the Commitments or releasing any ~~consent to any departure by any Loan Party therefrom, except to~~ Guarantor or all or substantially all of the ~~extent that such amendment, waiver or consent requires the consent of all Lenders~~Collateral). (hg) Any Lender may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section ~~8.07~~9.07, disclose to the assignee or participant or proposed assignee or participant any information relating to the ~~Borrowers~~ Borrower furnished to such Lender by or on behalf of the ~~Borrowers~~Borrower; provided, however, 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 received by it from such ~~Lender in accordance with the terms of Section 8.09.~~Lender. LSP Gen Finance Second Lien Credit Agreement (ih) Notwithstanding any other provision set forth in this Agreement, any Lender may at any time create a security interest in all or any portion of its rights under this Agreement (~~including~~ including, without limitation, the ~~Term Loan~~ Advances owing to it and the Note or Notes (if any) held by it) in favor of any Federal Reserve Bank in accordance with Regulation A of the Board of Governors of the Federal Reserve System. (ji) Notwithstanding anything to the contrary contained herein, any Lender that is a ~~fund that invests in bank loans~~ Fund may create a security interest in all or any portion of the ~~Term Loan~~ Advances owing to it and ~~the~~ any Note or Notes held by it to the trustee for holders of obligations owed, or securities issued, by such ~~fund~~ Fund as security for such obligations or securities; provided that, ~~provided, that~~ unless and until such trustee actually becomes a Lender in compliance with the other provisions of this Section ~~8.07~~9.07, (i) no such pledge shall release the pledging Lender from any of its obligations under the Loan Documents and (ii) such trustee shall not be entitled to exercise any of the rights of a Lender under the Loan Documents even though such trustee may have acquired ownership rights with respect to the pledged interest through foreclosure or otherwise. (kj) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Lender”) may grant to a special purpose funding vehicle identified as such in writing from time to time by the Granting Lender to the Administrative Agent and ~~BMCA~~ the Borrower (an “SPC”) the option to provide all or any part of any ~~Term Loan~~ Advance that such Granting Lender would otherwise be obligated to make pursuant to this Agreement, ; provided that (i) nothing herein shall constitute a commitment by any SPC to fund any ~~Term Loan Advance,~~ Advance and (ii) if an SPC elects not to exercise such option or otherwise fails to make all or any part of such ~~Term Loan~~ Advance, the Granting Lender shall be obligated to make such ~~Term Loan~~ Advance pursuant to the terms hereof. The making of an Advance by an SPC hereunder shall utilize the ~~Term Loan~~ Commitment of the Granting Lender to the same extent, and as if, such ~~Term Loan~~ Advance were made by such Granting Lender. Each party hereto hereby agrees that (i) no SPC shall be liable for any indemnity or similar payment obligation under this Agreement for which a Lender would be liable, (ii) no SPC shall be entitled to the benefits of Sections ~~2.09~~ 2.10 and ~~2.11~~ 2.12 (or any other increased costs protection provision) and (iii) the Granting ~~Bank~~ Lender shall for all purposes, ~~including~~ including, without limitation, the approval of any amendment or waiver of any provision of any Loan Document, remain the Lender of record hereunder. In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior Debt of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency, or liquidation proceeding under the laws of the United States or any State thereof. Notwithstanding anything to the contrary contained in this Agreement, any SPC may (i) with notice to, but without prior consent of, ~~BMCA~~ the Borrower and the Administrative Agent and with the payment of a processing fee of $~~500 and without paying any processing fee therefor~~500, assign all or any portion of its interest in any ~~Term Loan~~ Advance to the Granting Lender and (ii) disclose on a confidential basis any non-public information relating to its funding of ~~Term Loan Advance~~ Advances to any rating agency, commercial paper dealer or provider of any surety or guarantee or credit or liquidity enhancement to such SPC. This subsection (kj) may not be amended without the prior written consent of each Granting Lender, all or any part of whose ~~Term Loan~~ Advances are being funded by the SPC at the time of such amendment.

Appears in 1 contract

Samples: Second Lien Credit Agreement (Dynegy Inc /Il/)

Assignments and Participations. (a) Each Lender ~~may, upon at least five Business Days’ notice to such Lender and the Administrative Agent,~~ may assign to one or more Eligible Assignees all or a portion of its rights and obligations under this Agreement (~~including~~ including, without limitation, all or a portion of its ~~Term Loan Commitment~~Commitment or Commitments, the ~~Term Loan~~ Advances owing to it and the Note or Notes held by it); provided, however, that (i) each such assignment shall be of a uniform, and not a varying, percentage of all rights and obligations under ~~this Agreement~~and in respect of one or more of the Facilities, (ii) except in the case of an assignment to a Person that, immediately prior to such assignment, was a Lender, an Affiliate of any Lender or ~~an Approved~~ a Fund Affiliate of any Lender or an assignment of all of a Lender’s rights and obligations under this Agreement, the aggregate amount of the ~~Term Loan~~ Commitments ~~or Term Loan Advances~~ being assigned to such Eligible Assignee pursuant to such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $5,000,000 under each Facility or an integral multiple of $1,000,000 in excess thereof (or such lesser amount as shall be approved by the Administrative Agent and, so long as no Default shall have occurred and be continuing at the time of effectiveness of such assignment, ~~BMCA~~the Borrower), (iii) each such assignment shall be to an Eligible Assignee, (iv) except in the case of an assignment by to a Person that, immediately prior to such assignment, was a Lender, an Affiliate of any Lender or a Fund Affiliate of any Lender, in which case notice of such assignment shall be provided to ~~one of its Affiliates~~the Administrative Agent and the Borrower, no such assignments shall be permitted without the consent, which such consent shall not be unreasonably withheld, of (A) the Administrative Agent ~~and,~~ and (B) so long as no Default or Event of Default shall have occurred and be continuing at the time of the effectiveness of such assignment, ~~BMCA (in each case, which consents shall not be unreasonably withheld)~~ the Borrower and (v) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together with any Note or Notes subject to such assignment ~~and~~ and, except if such assignment is being made by a Lender to an Affiliate or Fund Affiliate of such Lender, a processing and recordation fee of $3,500. (b) Upon such execution, delivery, acceptance and recording, from and after the effective date specified in such 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, have the rights and obligations of a Lender or Issuing Bank, as the case may be, hereunder and (ii) the Lender or Issuing Bank assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (other than its rights under Sections ~~2.09~~2.10, ~~2.11~~ 2.12, 7.06, 8.05 and ~~8.04~~ 9.04 to the extent any claim thereunder relates to an event arising prior to such assignment) and be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all of the remaining portion of an assigning Lender’s or Issuing Bank’s rights and obligations under this Agreement, such Lender or Issuing Bank shall cease to be a party hereto). (c) By executing and delivering an Assignment and Acceptance, each Lender Party assignor thereunder and each assignee thereunder confirm to and agree with each other and the other parties thereto and hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender Party makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with any Loan Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value of, or the perfection or priority of any lien or security interest created or purported to be created under or in connection with, any Loan Document or any other instrument or document furnished pursuant thereto; (ii) such assigning Lender Party makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party or the performance or observance by any Loan Party of any of its obligations under any Loan Document or any other instrument or document furnished pursuant thereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 4.01 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) such assignee will, independently and without reliance upon ~~any~~ the Administrative Agent, such assigning Lender Party or any other Lender Party and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) such assignee confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes ~~each~~ the Administrative Agent to take such action as agent on its behalf and to exercise such powers and discretion under the Loan Documents as are delegated to ~~such~~ the Administrative Agent by the terms hereof and thereof, together with such powers and discretion as are reasonably incidental thereto; and (vii) such assignee agrees that it will perform in accordance with their terms all of the obligations that by the terms of this Agreement are required to be performed by it as a ~~Lender~~Lender or Issuing Bank, as the case may be. (d) The Administrative Agent ~~acting for this purpose (but only for this purpose) as the agent of the Borrowers,~~ shall maintain at its address referred to in Section ~~8.02~~ 9.02 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 ~~Lenders~~ Lender Parties and the ~~Term Loan~~ Commitment under each Facility of, and principal amount of the ~~Term Loan~~ Advances owing under each Facility to, each Lender Party from time to time (the “Register”). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the ~~Borrowers~~Borrower, the ~~Agents~~ Administrative Agent and the ~~Lenders shall~~ Lender Parties may treat each Person whose name is recorded in the Register as a Lender Party hereunder for all purposes of this Agreement. The Register shall be available for inspection by the ~~Borrowers~~ Borrower or ~~any~~ the Administrative Agent or any Lender Party at any reasonable time and from time to time upon reasonable prior notice. (e) Notwithstanding anything to the contrary contained in clause (b) above, the Term Loan Advances (including the Notes evidencing such Term Loan Advances) are registered obligations and the right, title, and interest of the Lenders and their assignees in and to such Term Loan Advances shall be transferable only upon notation of such transfer in the Register. A Note shall only evidence the Lender’s or an assignee’s right title and interest in and to the related Term Loan Advance, and in no event is any such Note to be considered a bearer instrument or obligation. This Section 8.07 shall be construed so that the Term Loan Advances are at all times maintained in “registered form” within the meaning of sections 163(f), 871(h)(2) and 881(c)(2) of the Internal Revenue Code and any related regulations (or any successor provisions of the Internal Revenue Code or such regulations). Solely for purposes of this and for tax purposes only, the Administrative Agent shall act as each Borrower’s agent for purposes of maintaining such notations of transfer in the Register. (f) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender Party and an assignee, together with any Note or Notes subject to such assignment, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit C E hereto, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to ~~BMCA~~ the Borrower and each other Agent. In the case of any assignment by a Lender, within five Business Days after its receipt of such notice, the ~~Borrowers~~Borrower, at ~~their~~ its own expense, shall, if requested by the ~~assignee~~applicable Lender, execute and deliver to the Administrative Agent in exchange for the surrendered Note or Notes ~~an amended and restated~~ a new Note ~~(which shall be marked “Amended and Restated”)~~ to the order of such Eligible Assignee in an amount equal to the ~~Term Loan~~ Commitment assumed by it under each Facility pursuant to such Assignment and Acceptance and, if any assigning Lender has retained a ~~Term Loan~~ Commitment hereunder under such ~~Facility and has requested~~ Facility, a ~~replacement Note, an amended and restated~~ new Note to the order of such assigning Lender in an amount equal to the ~~Term Loan~~ Commitment retained by it hereunder. Such ~~amended and restated~~ new Note or ~~Notes~~ Notes, if any, shall be in an aggregate principal amount equal to the aggregate principal amount of such surrendered Note or Notes, shall be dated the effective date of such Assignment and Acceptance and shall otherwise be in substantially the form of Exhibit A hereto. (f) Each Issuing Bank may assign to one or more Eligible Assignees all or a portion of its rights and obligations under the undrawn portion of its Letter of Credit Commitment at any time; provided, however, that (i) except in the case of an assignment to a Person that immediately prior to such assignment was an Issuing Bank or an assignment of all of an Issuing Bank’s rights and obligations under this Agreement, the amount of the Letter of Credit Commitment of the assigning Issuing Bank being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $5,000,000 and shall be in an integral multiple of $1,000,000 in excess thereof, (ii) each such assignment shall be to an Eligible Assignee and (iii) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together with a processing and recordation fee of $3,500, provided that such fee shall not be payable if the assigning Issuing Bank is making such assignment simultaneously with the assignment in its capacity as a Lender of all or a portion of its Revolving Credit Commitment to the same Eligible Assignee. (g) Each Lender Party may sell participations to one or more Persons (other than any Loan Party or any of its Affiliates) in or to all or a portion of its rights and obligations under this Agreement (~~including~~ including, without limitation, all or a portion of its ~~Term Loan~~ Commitments, the ~~Term Loan~~ Advances owing to it and the Note or Notes (if any) held by it); provided, however, that (i) such ~~Lender~~Lender Party’s obligations under this Agreement (~~including~~ including, without limitation, its ~~Term Loan~~ Commitments) shall remain unchanged, (ii) such Lender Party shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) such Lender Party shall remain the holder of any such Note for all purposes of this Agreement, (iv) the ~~Borrowers~~Borrower, the ~~Agents~~ Administrative Agent and the other ~~Lenders~~ Lender Parties shall continue to deal solely and directly with such Lender Party in connection with such ~~Lender~~Lender Party’s rights and obligations under this ~~Agreement and~~ Agreement, (v) no participant under any such participation shall have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent ~~requires~~ would reduce the ~~consent~~ principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, or postpone any date fixed for any payment of principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, or release all ~~Lenders~~or substantially all of the Collateral and (vi) if, at the time of such sale, such Lender Party was entitled to payments under Section 2.12(a) in respect of United States withholding tax with respect to interest paid at such date, then, to such extent, the term Taxes shall include (in addition to withholding taxes that may be imposed in the future or other amounts otherwise includable in Taxes) United States withholding tax, if any, applicable with respect to such participant on such date, provided that such participant complies with the requirements of Section 2.12(e). (h) Any Lender Party may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section ~~8.07~~9.07, disclose to the assignee or participant or proposed assignee or participant any information relating to the ~~Borrowers~~ Borrower furnished to such Lender Party by or on behalf of the ~~Borrowers~~Borrower; provided, however, 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 received by it from such Lender ~~in accordance with the terms of Section 8.09~~Party. (i) Notwithstanding any other provision set forth in this Agreement, any Lender Party may at any time create a security interest in all or any portion of its rights under this Agreement (~~including~~ including, without limitation, the ~~Term Loan~~ 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 System. (j) Notwithstanding anything to the contrary contained herein, any Lender that is a fund that invests in bank loans may create a security interest in all or any portion of the Term Loan Advances owing to it and the Note or Notes held by it to the trustee for holders of obligations owed, or securities issued, by such fund as security for such obligations or securities, provided, that unless and until such trustee actually becomes a Lender in compliance with the other provisions of this Section 8.07, (i) no such pledge shall release the pledging Lender from any of its obligations under the Loan Documents and (ii) such trustee shall not be entitled to exercise any of the rights of a Lender under the Loan Documents even though such trustee may have acquired ownership rights with respect to the pledged interest through foreclosure or otherwise. (k) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Lender”) may grant to a special purpose funding vehicle identified as such in writing from time to time by the Granting Lender to the Administrative Agent and BMCA (an “SPC”) the option to provide all or any part of any Term Loan Advance that such Granting Lender would otherwise be obligated to make pursuant to this Agreement, provided that (i) nothing herein shall constitute a commitment by any SPC to fund any Term Loan Advance, and (ii) if an SPC elects not to exercise such option or otherwise fails to make all or any part of such Term Loan Advance, the Granting Lender shall be obligated to make such Term Loan Advance pursuant to the terms hereof. The making of an Advance by an SPC hereunder shall utilize the Term Loan Commitment of the Granting Lender to the same extent, and as if, such Term Loan Advance were made by such Granting Lender. Each party hereto hereby agrees that (i) no SPC shall be liable for any indemnity or similar payment obligation under this Agreement for which a Lender would be liable, (ii) no SPC shall be entitled to the benefits of Sections 2.09 and 2.11 (or any other increased costs protection provision) and (iii) the Granting Bank shall for all purposes, including the approval of any amendment or waiver of any provision of any Loan Document, remain the Lender of record hereunder. In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior Debt of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency, or liquidation proceeding under the laws of the United States or any State thereof. Notwithstanding anything to the contrary contained in this Agreement, any SPC may (i) with notice to, but without prior consent of, BMCA and the Administrative Agent and with the payment of a processing fee of $500 and without paying any processing fee therefor, assign all or any portion of its interest in any Term Loan Advance to the Granting Lender and (ii) disclose on a confidential basis any non-public information relating to its funding of Term Loan Advance to any rating agency, commercial paper dealer or provider of any surety or guarantee or credit or liquidity enhancement to such SPC. This subsection (k) may not be amended without the prior written consent of each Granting Lender, all or any part of whose Term Loan Advances are being funded by the SPC at the time of such amendment.

Appears in 1 contract

Samples: Credit Agreement (American Campus Communities Inc)

Assignments and Participations. (a) Each Lender ~~may, upon at least five Business Days’ notice to such Lender and the Administrative Agent,~~ may assign to one or more ~~Eligible Assignees~~ banks or other entities all or a portion of its rights and obligations under this Agreement (~~including~~ including, without limitation, all or a portion of its ~~Term Loan Commitment~~Commitment or Commitments, the ~~Term Loan Advances~~ Loans owing to it and ~~the~~ any Note or Notes held by it); provided, however, -------- ------- that (i~~) each such assignment shall be of a uniform, and not a varying, percentage of all rights and obligations under this Agreement, (ii~~) except in the case of an assignment to a Person that, immediately prior to such assignment, was a ~~Lender, an Affiliate of any~~ Lender or an Affiliate or Approved Fund of ~~any~~ a Lender or an assignment of all of a Lender’s 's rights and obligations under this ~~Agreement~~Agreement or in respect of any Facility, the ~~aggregate~~ amount of the ~~Term Loan~~ Commitments ~~or Term Loan Advances~~ and/or Loans of the assigning Lender being assigned ~~to such Eligible Assignee~~ pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than ~~$5,000,000 (~~US$1,000,000, or ~~such lesser amount~~ CDN$1,000,000, as applicable, and shall be ~~approved by the Administrative Agent and~~in integral multiples of US$100,000 or CDN$100,000, ~~so long~~ as ~~no Default shall have occurred and be continuing at the time of effectiveness of such assignment, BMCA)~~applicable in excess thereof, (~~iii~~ii) each such assignment shall be to an Eligible ~~Assignee~~Assignee or to an Affiliate or Approved Fund of the assignor, (iviii) except ~~in the case of an assignment~~ for any assignments by ~~a Person that, immediately prior to such assignment, was a Lender, to one of its Affiliates, no such assignments shall be permitted without the consent of~~ the Administrative Agent ~~and~~and any assignments to another Lender or an Affiliate or an Approved Fund of the assigning Lender or of any other Lender or an SPV, ~~so long as no~~ each assignment shall require the written consent of (A) the Administrative Agent, and (B) unless a Default ~~shall have~~ or Event of Default has occurred and ~~be continuing at~~ is continuing, the ~~time of effectiveness of~~ Borrower, such ~~assignment, BMCA (~~consent in each ~~case, which consents shall~~ case not to be unreasonably ~~withheld)~~ withheld or delayed, and (viv) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together with any Note or Notes subject to such assignment and a processing and recordation fee of $US$3,500. ; provided, however that no such fee shall -------- ------- be payable in the case of an assignment to an Affiliate, an SPV or an Approved Fund of the assigning Lender; and, provided further, that in the -------- ------- case of contemporaneous assignments by a Lender to more than one fund managed by the same investment advisor (b) which funds are not then Lenders hereunder), only a single such US$3,5000 fee shall be payable for all such contemporaneous assignments. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in such Assignment and Acceptance, (ix) the assignee thereunder shall be a party hereto and, to the extent that ~~rights~~ rights, benefits and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, have (in addition to any such rights and obligations theretofore held by it) the ~~rights~~ rights, benefits and obligations of a Lender ~~hereunder~~ hereunder; provided that, the rights and benefits under Section 2.10 shall -------- ---- only be available to the assignee to the extent that the assigning Lender would have had such rights and benefits and (iiy) the Lender assignor thereunder shall, to the extent that ~~rights~~ rights, benefits and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights ~~(other than its rights under Sections 2.09, 2.11~~ and ~~8.04 to the extent any claim thereunder relates to an event arising prior to such assignment)~~ benefits and be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all of or the remaining portion of an assigning Lender~~’s rights~~ 's rights, benefits and obligations under this Agreement, such Lender shall cease to be a party hereto). (cb) By executing and delivering an Assignment and Acceptance, ~~each~~ the Lender assignor thereunder and ~~each~~ the assignee thereunder confirm to and agree with each other and the other parties ~~thereto and~~ hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or any other Loan Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value of, or the perfection or priority of any ~~lien~~ Lien or security interest created or purported to be created under or in connection with, this Agreement or any other Loan Document or any other instrument or document furnished pursuant hereto or thereto; (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of the Borrower or any other Loan Party or the performance or observance by any Loan Party of any of its obligations under any Loan Document or any other instrument or document furnished pursuant thereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 4.01 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) such assignee will, independently and without reliance upon any Agent, such assigning Lender or any other Lender Party and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) such assignee confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes ~~each~~ the Administrative Agent to take such action as agent on its behalf and to exercise such powers and discretion under the Loan Documents as are delegated to ~~such~~ the Administrative Agent by the terms ~~hereof and thereof~~hereof, together with such powers and discretion as are reasonably incidental thereto; and (vii) such assignee agrees that it will perform in accordance with their terms all of the obligations ~~that~~ which by the terms of this Agreement are required to be performed by it as a ~~Lender~~Lender or Issuing Bank, as the case may be and shall be bound by the terms of the Intercreditor Agreement. (dc) The Administrative Agent ~~acting for this purpose (but only for this purpose) as the agent of the Borrowers,~~ shall maintain at its address referred to in Section ~~8.02~~ 9.02 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 Lenders and the ~~Term Loan~~ Commitment under each Facility of, and principal amount of the ~~Term Loan Advances~~ Loans owing under each Facility to, each Lender from time to time (the ~~“Register”~~"REGISTER"). The entries in -------- the Register shall be conclusive and binding for all purposes, absent manifest error, and the ~~Borrowers~~Borrower, the ~~Agents~~ Administrative Agent and the ~~Lenders shall~~ Lender Parties 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 Agent~~ Borrower or any Lender Party at any reasonable time and from time to time upon reasonable prior notice. (e) Notwithstanding anything to the contrary contained in clause (b) above, the Term Loan Advances (including the Notes evidencing such Term Loan Advances) are registered obligations and the right, title, and interest of the Lenders and their assignees in and to such Term Loan Advances shall be transferable only upon notation of such transfer in the Register. A Note shall only evidence the Lender’s or an assignee’s right title and interest in and to the related Term Loan Advance, and in no event is any such Note to be considered a bearer instrument or obligation. This Section 8.07 shall be construed so that the Term Loan Advances are at all times maintained in “registered form” within the meaning of sections 163(f), 871(h)(2) and 881(c)(2) of the Internal Revenue Code and any related regulations (or any successor provisions of the Internal Revenue Code or such regulations). Solely for purposes of this and for tax purposes only, the Administrative Agent shall act as each Borrower’s agent for purposes of maintaining such notations of transfer in the Register. (fd) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee, together with any Note or Notes subject to such assignment, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit C I --------- hereto, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to ~~BMCA and each other Agent~~the Borrower. ~~In the case of any assignment by a Lender, within~~ Within five Business Days after its receipt of such ~~notice~~notice of assignment and a request for new Notes in favor of such assignee, the ~~Borrowers~~Borrower, at ~~their~~ its own expense, ~~shall, if requested by the assignee,~~ shall execute and deliver to the Administrative Agent in exchange for the surrendered Note or Notes ~~an amended and restated~~ a new Note ~~(which shall be marked “Amended and Restated”)~~ to the order of such Eligible Assignee in an amount equal to the ~~Term Loan Commitment~~ Loans and/or Commitments, as applicable, assumed by it under ~~each~~ a Facility pursuant to such Assignment and Acceptance and, if ~~any~~ the assigning Lender has retained ~~a Term Loan Commitment~~ any Loans and/or Commitments hereunder under such ~~Facility and has requested~~ Facility, a ~~replacement Note, an amended and restated~~ new Note to the order of ~~such~~ the assigning Lender in an amount equal to ~~the Term Loan Commitment~~ such Loans and/or Commitments, as applicable retained by it hereunder. Such ~~amended and restated~~ 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 Assignment and Acceptance and shall otherwise be in substantially the form of ~~Exhibit A hereto.~~Exhibits VII-A-1, VII-A-2, VII-B, VII-C, VII-D-1 ---------------- ------- ----- ----- ------- and VII-D-2, as applicable. ------- (ge) Each Lender may sell participations ~~to one or more Persons (other than any Loan Party or any of its Affiliates)~~ in or to all or a portion of its rights and obligations under this Agreement (~~including~~ including, without limitation, all or a portion of its ~~Term Loan~~ Commitments, the ~~Term Loan Advances~~ Loans owing to it and ~~the~~ any Note or Notes ~~(if any)~~ held by it); provided, however, that (i) such Lender’s 's -------- ------- obligations under this Agreement (~~including~~ including, without limitation, its ~~Term Loan~~ Commitments) shall remain unchanged, (ii) 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, (iv) the ~~Borrowers~~Borrower, the ~~Agents~~ Administrative Agent and the other ~~Lenders~~ Lender Parties shall continue to deal solely and directly with such Lender in connection with such Lender’s 's rights and obligations under this Agreement and (v) no participant under any such participation shall have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent ~~requires~~ would reduce the ~~consent~~ principal of, or interest on, any Loans or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, postpone any date fixed for any payment of principal of, or interest on, any Loans or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, or release all ~~Lenders~~or substantially all of the Collateral; and, provided further, that participants shall have the same rights and -------- ------- benefits as Lenders under Section 2.08 and Section 2.10, but only to the extent that the Lender from which such participation is acquired would have had such rights and benefits. (hf) Any Lender may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section ~~8.07~~9.07, disclose to the assignee or participant or proposed assignee or ~~participant~~ participant, any information relating to ~~the Borrowers~~ any Loan Party furnished to such Lender by or on behalf of ~~the Borrowers~~any Loan Party; provided, however, 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 received by it from such ~~Lender in accordance with the terms of Section 8.09~~Lender. (ig) Notwithstanding any other provision set forth in this Agreement, any Lender may at any time create a security interest in all or any portion of its rights under this Agreement (~~including~~ including, without limitation, the ~~Term Loan Advances~~ Loans owing to it and ~~the~~ any 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 US Federal Reserve System. (j) Notwithstanding anything to the contrary contained herein, any Lender that is a fund that invests in bank loans may create a security interest in all or any portion of the Term Loan Advances owing to it and the Note or Notes held by it to the trustee for holders of obligations owed, or securities issued, by such fund as security for such obligations or securities, provided, that unless and until such trustee actually becomes a Lender in compliance with the other provisions of this Section 8.07, (i) no such pledge shall release the pledging Lender from any of its obligations under the Loan Documents and (ii) such trustee shall not be entitled to exercise any of the rights of a Lender under the Loan Documents even though such trustee may have acquired ownership rights with respect to the pledged interest through foreclosure or otherwise. (kh) Notwithstanding anything to the contrary contained herein, any Lender (a ~~“Granting Lender”~~"GRANTING LENDER") may grant to a special purpose funding vehicle --------------- (an "SPV"), identified as such in writing from time to time by the Granting --- Lender to the Administrative Agent and ~~BMCA (an “SPC”)~~ the Borrower, the option to provide to the Borrower all or any part of any ~~Term~~ Loan ~~Advance~~ that such Granting Lender would otherwise be obligated to make to the Borrower pursuant to this Agreement, ; provided that (i) nothing herein shall constitute a commitment by any ~~SPC~~ SPV -------- ---- to ~~fund~~ make any ~~Term~~ Loan ~~Advance,~~ and (ii) if an ~~SPC~~ SPV elects not to exercise such option or otherwise fails to ~~make~~ provide all or any part of such ~~Term Loan Advance~~Loan, the Granting Lender shall be obligated to make such ~~Term~~ Loan ~~Advance~~ pursuant to the terms hereof. The making of ~~an Advance~~ a Loan by an ~~SPC~~ SPV hereunder shall utilize the ~~Term Loan~~ Commitment availability of the Granting Lender to the same extent, and as if, such ~~Term~~ Loan ~~Advance~~ were made by such Granting Lender. Each party hereto hereby agrees that ~~(i)~~ no ~~SPC~~ SPV shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which ~~a Lender would be liable, (ii) no SPC~~ shall ~~be entitled to the benefits of Sections 2.09 and 2.11 (or any other increased costs protection provision) and (iii)~~ remain with the Granting ~~Bank shall for all purposes, including the approval of any amendment or waiver of any provision of any Loan Document, remain the Lender of record hereunder~~Lender). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior ~~Debt~~ indebtedness of any ~~SPC~~SPV, it will not institute against, or join any other person in instituting against, such ~~SPC~~ SPV any bankruptcy, reorganization, arrangement, ~~insolvency,~~ insolvency or liquidation ~~proceeding~~ proceedings under ~~the laws of the United States or~~ any ~~State thereof~~Insolvency Law. ~~Notwithstanding~~ In addition, notwithstanding anything to the contrary contained in this ~~Agreement~~Section 9.07(h), any ~~SPC~~ SPV may (i) with notice to, but without the prior written consent of, ~~BMCA~~ the Borrower and the Administrative Agent ~~and with the payment of a processing fee of $500~~ and without paying any processing fee therefor, assign all or ~~any~~ a portion of its ~~interest~~ interests in any ~~Term Loan Advance~~ Loans to the Granting Lender or to any financial institutions (consented to by the Borrower and the Administrative Agent) providing liquidity and/or credit support to or for the account of such SPV to support the funding or maintenance of Loans and (ii) disclose on a confidential basis any non-public information relating to its ~~funding of Term Loan Advance~~ Loans to any rating agency, commercial paper dealer or provider of any ~~surety or~~ surety, guarantee or credit or liquidity enhancement to such ~~SPC~~SPV. To the extent that an SPV assumes a Commitment and/or makes a Loan on behalf of a Granting Lender, such SPV shall be deemed a "Lender" for all purposes hereunder and under the other Loan Documents and shall be entitled to the same rights and benefits as such Granting Lender hereunder and thereunder except that, with reference to the rights and benefits provided under Section 2.10, only to the extent that the relevant Granting Lender would have been entitled to such rights and benefits. This ~~subsection (k~~Section 9.07(h) may not be amended without the ~~prior~~ written consent of ~~each Granting Lender, all or any part of whose Term Loan Advances are being funded by~~ the ~~SPC at the time of such amendment~~SPV.

Appears in 1 contract

Samples: Credit Agreement (Panolam Industries Inc)

Assignments and Participations. (a) Each Lender ~~may, upon at least five Business Days’ notice to such Lender and the Administrative Agent,~~ may assign to one or more ~~Eligible Assignees~~ Persons all or a portion of its rights and obligations under this Agreement (~~including~~ including, without limitation, all or a portion of its ~~Term Loan~~ Commitment, the ~~Term Loan~~ Revolving Advances owing to it and the Note or ~~Notes~~ Notes, if any, held by it); provided, however, that (i) each such assignment shall be of a ~~uniform~~constant, and not a varying, percentage of all rights and obligations under this ~~Agreement~~Agreement (other than any right to make CAF Advances, CAF Advances owing to it and CAF Note or CAF Notes, if any), (ii) except in the case of an assignment to a Person that, immediately prior to such assignment, was a ~~Lender, an Affiliate of any Lender or an Approved Fund of any~~ Lender or an assignment of all of a Lender’s 's rights and obligations under this Agreement, the ~~aggregate~~ amount of the ~~Term Loan Commitments or Term Loan Advances~~ Commitment of the assigning Lender being assigned ~~to such Eligible Assignee~~ pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $~~5,000,000 (~~10,000,000 or ~~such lesser amount as shall be approved by the Administrative Agent and, so long as no Default shall have occurred and be continuing at the time~~ an integral multiple of ~~effectiveness of such assignment, BMCA)~~$1,000,000 in excess thereof, (iii) each such assignment shall be to an Eligible Assignee, (iv) except in the case of an assignment by a Person that, immediately prior to such assignment, was a Lender, to one of its Affiliates, no such assignments shall be permitted without the consent of the Administrative Agent and, so long as no Default shall have occurred and be continuing at the time of effectiveness of such assignment, BMCA (in each case, which consents shall not be unreasonably withheld) and (v) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together with any ~~Note or Notes~~ Note, if any, subject to such assignment, and (v) the parties to each such assignment ~~and~~ shall deliver to the Administrative Agent a processing and recordation fee of $3,500~~. (b)~~ . Upon such execution, delivery, acceptance and recording, from and after the effective date specified in ~~such~~ each Assignment and Acceptance, (ix) the assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, have the rights and obligations of a Lender hereunder and (iiy) the Lender assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (other than its rights under Sections ~~2.09~~2.13, ~~2.11~~ 2.16 and 8.04 to the extent any claim thereunder relates to an event arising prior to such assignment) and be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all of or the remaining portion of an assigning Lender’s 's rights and obligations under this Agreement, such Lender shall cease to be a party hereto). (cb) By executing and delivering an Assignment and Acceptance, ~~each~~ the Lender assignor thereunder and ~~each~~ the assignee thereunder confirm to and agree with each other and the other parties ~~thereto and~~ hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with ~~any Loan Document~~ this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value ~~of, or the perfection or priority~~ of ~~any lien or security interest created or purported to be created under or in connection with, any Loan Document~~ this Agreement or any other instrument or document furnished pursuant ~~thereto~~hereto; (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of ~~any Loan Party~~ the Borrower or CERC 364-Day Revolving Credit Agreement the performance or observance by ~~any Loan Party~~ the Borrower of any of its obligations under ~~any Loan Document~~ this Agreement or any other instrument or document furnished pursuant ~~thereto~~hereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 4.01 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) such assignee will, independently and without reliance upon any Agent, such assigning Lender or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) such assignee confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes each Agent to take such action as agent on its behalf and to exercise such powers and discretion under ~~the Loan Documents~~ this Agreement as are delegated to such Agent by the terms ~~hereof and thereof~~hereof, together with such powers and discretion as are reasonably incidental thereto; and (vii) such assignee agrees that it will perform in accordance with their terms all of the obligations that by the terms of this Agreement are required to be performed by it as a Lender. (dc) The Administrative Agent ~~acting for this purpose (but only for this purpose) as the agent of the Borrowers,~~ shall maintain at its address referred to in Section 8.02 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 Lenders and the ~~Term Loan~~ Commitment of, and principal amount of the ~~Term Loan~~ 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~~prima facie evidence of the correctness thereof, and the ~~Borrowers~~Borrower, the Agents and the Lenders ~~shall~~ 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 Agent~~ Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice. (e) Notwithstanding anything to the contrary contained in clause (b) above, the Term Loan Advances (including the Notes evidencing such Term Loan Advances) are registered obligations and the right, title, and interest of the Lenders and their assignees in and to such Term Loan Advances shall be transferable only upon notation of such transfer in the Register. A Note shall only evidence the Lender’s or an assignee’s right title and interest in and to the related Term Loan Advance, and in no event is any such Note to be considered a bearer instrument or obligation. This Section 8.07 shall be construed so that the Term Loan Advances are at all times maintained in “registered form” within the meaning of sections 163(f), 871(h)(2) and 881(c)(2) of the Internal Revenue Code and any related regulations (or any successor provisions of the Internal Revenue Code or such regulations). Solely for purposes of this and for tax purposes only, the Administrative Agent shall act as each Borrower’s agent for purposes of maintaining such notations of transfer in the Register. (fd) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an ~~assignee~~assignee representing that it is an Eligible Assignee, together with any ~~Note or Notes~~ Note, if any, subject to such assignment, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit C hereto, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to ~~BMCA and each other Agent~~the Borrower. ~~In the case of any assignment by a Lender, within~~ Within five Business Days after its receipt of such notice, the ~~Borrowers~~Borrower, at ~~their~~ its own expense, ~~shall, if requested by the assignee,~~ shall execute and deliver to the Administrative Agent in exchange for the surrendered Note ~~or Notes an amended and restated~~ a new Note ~~(which shall be marked “Amended and Restated”)~~ to the order of such Eligible Assignee in an amount equal to the ~~Term Loan~~ Commitment assumed by it ~~under each Facility~~ pursuant to such Assignment and Acceptance and, if ~~any~~ the assigning Lender has retained a ~~Term Loan~~ Commitment ~~hereunder under such Facility and has requested~~ hereunder, a ~~replacement Note, an amended and restated~~ new Note to the order of ~~such~~ the assigning Lender in an amount equal to the ~~Term Loan~~ Commitment retained by it hereunder. Such ~~amended and restated~~ 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 Assignment and Acceptance and shall otherwise be in substantially the form of Exhibit A hereto. (ge) Each Lender may sell participations to one or more ~~Persons~~ banks or other entities (other than ~~any Loan Party~~ the Borrower or any of its Affiliates) in or to all or a portion of its rights and obligations under this Agreement (~~including~~ including, without limitation, all or a portion of its ~~Term Loan Commitments~~Commitment, the ~~Term Loan~~ Advances owing to it and the Note or ~~Notes (~~Notes, if any) , held by it); provided, however, that (i) such Lender’s 's obligations under this Agreement (~~including~~ including, without limitation, its ~~Term Loan Commitments~~Commitment to the Borrower hereunder) shall remain unchanged, (ii) 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, (iv) the ~~Borrowers~~Borrower, the Agents and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s 's rights and obligations under this Agreement and (v) no participant under any such participation shall have any right to approve any amendment or waiver of any provision of this Agreement or any ~~Loan Document~~Note, or any consent to any departure by ~~any Loan Party~~ the Borrower therefrom, except to the extent that such amendment, waiver or consent ~~requires~~ would reduce the ~~consent~~ principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, or postpone any date fixed for any payment of ~~all Lenders~~principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation. (hf) Any Lender may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section 8.07, disclose to the assignee or participant or proposed assignee or ~~participant~~ participant, any information relating to the ~~Borrowers~~ Borrower furnished to such Lender by or on behalf of the ~~Borrowers~~Borrower; ~~provided, however,~~ 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 Borrower received by it from such ~~Lender in accordance with the terms of Section 8.09.~~Lender. CERC 364-Day Revolving Credit Agreement (ig) Notwithstanding any other provision set forth in this Agreement, any Lender may at any time and without the consent of the Borrower or any Agent (i) create a security interest in all or any portion of its rights under this Agreement (~~including~~ including, without limitation, the ~~Term Loan~~ 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 System, and (ii) with notice to the Borrower and the Administrative Agent, assign all or part of its rights and obligations under this Agreement to any of its Affiliates. (jh) ~~Notwithstanding anything~~ In the event that any Lender requests payments of reimbursement, compensation or indemnification from the Borrower pursuant to Sections 2.02, 2.12 or 2.15 herein, then the Borrower shall have the right, but not the obligation, at its own expense, upon 5 Business Days notice to such Lender and the Administrative Agent, to replace such Lender with an assignee (in accordance with and subject to the ~~contrary~~ restrictions contained ~~herein~~in paragraphs (a) and (b) above), ~~any~~ and such Lender ~~that is a fund that invests~~ hereby agrees to transfer and assign without recourse (in ~~bank loans may create a security interest in all or any portion of the Term Loan Advances owing to it~~ accordance with and ~~the Note or Notes held by it~~ subject to the ~~trustee for holders~~ restrictions contained in paragraphs (a) and (b) above) all its interests, rights and obligations in respect of ~~obligations owed, or securities issued, by~~ its Commitment to such ~~fund as security for such obligations or securities,~~ assignee; provided, however, that ~~unless and until such trustee actually becomes a Lender in compliance with the other provisions of this Section 8.07,~~ (i) no such ~~pledge~~ assignment shall ~~release the pledging Lender from~~ conflict with any ~~of its obligations under the Loan Documents~~ law, rule and (ii) such trustee shall not be entitled to exercise any of the rights of a Lender under the Loan Documents even though such trustee may have acquired ownership rights with respect to the pledged interest through foreclosure regulation or otherwise. (k) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Lender”) may grant to a special purpose funding vehicle identified as such in writing from time to time by the Granting Lender to the Administrative Agent and BMCA (an “SPC”) the option to provide all or any part order of any Term Loan Advance that such Granting Lender would otherwise be obligated to make pursuant to this Agreement, provided that (i) nothing herein shall constitute a commitment by any SPC to fund any Term Loan Advance, and (ii) if an SPC elects not to exercise such option or otherwise fails to make all or any part of such Term Loan Advance, the Granting Lender shall be obligated to make such Term Loan Advance pursuant to the terms hereof. The making of an Advance by an SPC hereunder shall utilize the Term Loan Commitment of the Granting Lender to the same extent, and as if, such Term Loan Advance were made by such Granting Lender. Each party hereto hereby agrees that (i) no SPC shall be liable for any indemnity or similar payment obligation under this Agreement for which a Lender would be liablegovernmental authority, (ii) no ~~SPC shall be entitled to the benefits of Sections 2.09 and 2.11 (~~Default has occurred or ~~any other increased costs protection provision) and~~ is continuing, (iii) the ~~Granting Bank~~ Borrower has satisfied all of its obligations under this Agreement relating to such assigning Lender through the date of such assignment, (iv) the Borrower shall ~~for all purposes~~pay to the Administrative Agent the administrative fee in the amount of $3,500 if such replacement Lender assignee is not an existing Lender, ~~including~~ and (v) such assignee shall pay to such assigning Lender in immediately available funds on the ~~approval~~ date of ~~any amendment or waiver~~ such assignment the principal of any provision of any Loan Document, remain the Lender of record hereunder. In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior and interest accrued to the date ~~that is one year~~ of payment on the Advances made by such Lender hereunder and ~~one day after~~ the ~~payment in full of all outstanding commercial paper or other senior Debt of any SPC~~Borrower, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency, or liquidation proceeding under the laws of the United States or any State thereof. Notwithstanding anything to the contrary contained in this Agreement, any SPC may (i) with notice to, but without prior consent of, BMCA and the Administrative Agent ~~and with the payment of a processing fee of $500 and without paying any processing fee therefor~~or such assignee, assign all or any portion of its interest in any Term Loan Advance to the Granting Lender and (ii) disclose on a confidential basis any non-public information relating to its funding of Term Loan Advance to any rating agencyas applicable, ~~commercial paper dealer or provider of any surety or guarantee or credit or liquidity enhancement~~ shall pay to such ~~SPC. This subsection (k) may not be amended without the prior written consent of each Granting~~ Lender all other amounts accrued for such Lender~~, all~~ 's account or ~~any part of whose Term Loan Advances are being funded by the SPC at the time of such amendment~~owed to it hereunder.

Appears in 1 contract

Samples: Credit Agreement (Centerpoint Energy Resources Corp)

Assignments and Participations. (a) Each Lender ~~may~~may and, so long as no Event of Default shall have occurred and be continuing, if demanded by the Borrower (following a demand by such Lender pursuant to Section 2.10 or 2.12) upon at least five Business Days’ ' notice to such Lender and the Administrative Agent, will assign to one or more Eligible Assignees all or a portion of its rights and obligations under this Agreement (~~including~~ including, without limitation, all or a portion of its ~~Term Loan Commitment~~Commitment or Commitments, the ~~Term Loan~~ Advances owing to it and the Note or Notes held by it); provided, however, that (i) each such assignment shall be of a uniform, and not a varying, percentage of all rights and obligations under ~~this Agreement~~and in respect of one or more of the Facilities, (ii) except in the case of an assignment to a Person that, immediately prior to such assignment, was a Lender, an Affiliate of any Lender or an Approved Fund of any Lender or an assignment of all of a Lender’s 's rights and obligations under this Agreement, the aggregate amount of the ~~Term Loan~~ Commitments ~~or Term Loan Advances~~ being assigned to such Eligible Assignee pursuant to such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $5,000,000 (or such lesser amount as shall be approved by the Administrative Agent and, so long as no Default shall have occurred and be continuing at the time of effectiveness of such assignment, BMCA)1 million, (iii) each such assignment shall be to an Eligible Assignee, and (iv) except in the case of an assignment by a Person that, immediately prior to such assignment, was a Lender, to one of its Affiliates, no such assignments shall be permitted without the consent of the Administrative Agent and, so long as no Default shall have occurred and be continuing at the time of effectiveness of such assignment, BMCA (in each case, which consents shall not be unreasonably withheld) and (v) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together with any Note or Notes subject to such ~~assignment and a processing and recordation fee of $3,500~~assignment. (b) Upon such execution, delivery, acceptance and recording, from and after the effective date specified in such 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, have the rights and obligations of a Lender or Issuing Bank, as the case may be, hereunder and (ii) the Lender or Issuing Bank assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (other than its rights under Sections ~~2.09~~2.10, ~~2.11~~ 2.12 and ~~8.04~~ 9.04 to the extent any claim thereunder relates to an event arising prior to such assignment) and be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all of the remaining portion of an assigning Lender’s 's or Issuing Bank's rights and obligations under this Agreement, such Lender or Issuing Bank shall cease to be a party hereto). (c) By executing and delivering an Assignment and Acceptance, each Lender Party assignor thereunder and each assignee thereunder confirm to and agree with each other and the other parties thereto and hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender Party makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with any Loan Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value of, or the perfection or priority of any lien or security interest created or purported to be created under or in connection with, any Loan Document or any other instrument or document furnished pursuant thereto; (ii) such assigning Lender Party makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party or the performance or observance by any Loan Party of any of its obligations under any Loan Document or any other instrument or document furnished pursuant thereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 4.01 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) such assignee will, independently and without reliance upon any Agent, such assigning Lender Party or any other Lender Party and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) such assignee confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes each Agent to take such action as agent on its behalf and to exercise such powers and discretion under the Loan Documents as are delegated to such Agent by the terms hereof and thereof, together with such powers and discretion as are reasonably incidental thereto; and (vii) such assignee agrees that it will perform in accordance with their terms all of the obligations that by the terms of this Agreement are required to be performed by it as a ~~Lender~~Lender or Issuing Bank, as the case may be. (d) The Administrative ~~Agent~~ Agent, acting for this purpose (but only for this purpose) as the agent of the ~~Borrowers~~Borrower, shall maintain at its address referred to in Section ~~8.02~~ 9.02 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 ~~Lenders~~ Lender Parties and the ~~Term Loan~~ Commitment under each Facility of, and principal amount of the ~~Term Loan~~ Advances owing under each Facility to, each Lender Party from time to time (the “"Register”"). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the ~~Borrowers~~Borrower, the Agents and the ~~Lenders~~ Lender Parties shall treat each Person whose name is recorded in the Register as a Lender Party hereunder for all purposes of this Agreement. The Register shall be available for inspection by the ~~Borrowers~~ Borrower or any Agent or any Lender Party at any reasonable time and from time to time upon reasonable prior notice. (e) Notwithstanding anything to the contrary contained in clause (b) above, the Term Loan Advances (including the Notes evidencing such Term Loan Advances) are registered obligations and the right, title, and interest of the Lenders and their assignees in and to such Term Loan Advances shall be transferable only upon notation of such transfer in the Register. A Note shall only evidence the Lender’s or an assignee’s right title and interest in and to the related Term Loan Advance, and in no event is any such Note to be considered a bearer instrument or obligation. This Section 8.07 shall be construed so that the Term Loan Advances are at all times maintained in “registered form” within the meaning of sections 163(f), 871(h)(2) and 881(c)(2) of the Internal Revenue Code and any related regulations (or any successor provisions of the Internal Revenue Code or such regulations). Solely for purposes of this and for tax purposes only, the Administrative Agent shall act as each Borrower’s agent for purposes of maintaining such notations of transfer in the Register. (f) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender Party and an assignee, together with any Note or Notes subject to such assignment, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit C E hereto, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to ~~BMCA~~ the Borrower and each other Agent. In the case of any assignment by a Lender, within five Business Days after its receipt of such notice, the ~~Borrowers~~Borrower, at ~~their~~ its own expense, ~~shall, if requested by the assignee,~~ shall execute and deliver to the Administrative Agent in exchange for the surrendered Note or Notes ~~an amended and restated~~ a new Note ~~(which shall be marked “Amended and Restated”)~~ to ~~the order of~~ such Eligible Assignee in an amount equal to the ~~Term Loan~~ Commitment assumed by it under each Facility pursuant to such Assignment and Acceptance and, if any assigning Lender has retained a ~~Term Loan~~ Commitment hereunder under such ~~Facility and has requested~~ Facility, a ~~replacement Note, an amended and restated~~ new Note to ~~the order of~~ such assigning Lender in an amount equal to the ~~Term Loan~~ Commitment retained by it hereunder. Such ~~amended and restated~~ 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 Assignment and Acceptance and shall otherwise be in substantially the form of Exhibit A hereto, as the case may be. (f) The Issuing Bank may assign to an Eligible Assignee all of its rights and obligations under the undrawn portion of its Letter of Credit Commitment at any time; provided, however, that (i) each such assignment shall be to an Eligible Assignee and (ii) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and Acceptance. (g) Each Lender Party may sell participations to one or more Persons (other than any Loan Party or any of its Affiliates) in or to all or a portion of its rights and obligations under this Agreement (~~including~~ including, without limitation, all or a portion of its ~~Term Loan~~ Commitments, the ~~Term Loan~~ Advances owing to it and the Note or Notes (if any) held by it); provided, however, that (i) such ~~Lender’s~~ Lender Party's obligations under this Agreement (~~including~~ including, without limitation, its ~~Term Loan~~ Commitments) shall remain unchanged, (ii) such Lender Party shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) such Lender Party shall remain the holder of any such Note for all purposes of this Agreement, (iv) the ~~Borrowers~~Borrower, the Agents and the other ~~Lenders~~ Lender Parties shall continue to deal solely and directly with such Lender Party in connection with such ~~Lender’s~~ Lender Party's rights and obligations under this Agreement and (v) no participant under any such participation shall have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent ~~requires~~ would reduce the ~~consent~~ principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, postpone any date fixed for any payment of principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, or release all ~~Lenders~~or substantially all of the Collateral. (h) Any Lender Party may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section ~~8.07~~9.06, disclose to the assignee or participant or proposed assignee or participant any information relating to the ~~Borrowers~~ Borrower furnished to such Lender Party by or on behalf of the ~~Borrowers~~Borrower; provided, however, 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 received by it from such Lender ~~in accordance with the terms of Section 8.09~~Party. (i) Notwithstanding any other provision set forth in this Agreement, any Lender Party may at any time create a security interest in all or any portion of its rights under this Agreement (~~including~~ including, without limitation, the ~~Term Loan~~ 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 System. (j) Notwithstanding anything to the contrary contained herein, any Lender that is a fund that invests in bank loans may create a security interest in all or any portion of the Term Loan Advances owing to it and the Note or Notes held by it to the trustee for holders of obligations owed, or securities issued, by such fund as security for such obligations or securities, provided, that unless and until such trustee actually becomes a Lender in compliance with the other provisions of this Section 8.07, (i) no such pledge shall release the pledging Lender from any of its obligations under the Loan Documents and (ii) such trustee shall not be entitled to exercise any of the rights of a Lender under the Loan Documents even though such trustee may have acquired ownership rights with respect to the pledged interest through foreclosure or otherwise. (k) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Lender”) may grant to a special purpose funding vehicle identified as such in writing from time to time by the Granting Lender to the Administrative Agent and BMCA (an “SPC”) the option to provide all or any part of any Term Loan Advance that such Granting Lender would otherwise be obligated to make pursuant to this Agreement, provided that (i) nothing herein shall constitute a commitment by any SPC to fund any Term Loan Advance, and (ii) if an SPC elects not to exercise such option or otherwise fails to make all or any part of such Term Loan Advance, the Granting Lender shall be obligated to make such Term Loan Advance pursuant to the terms hereof. The making of an Advance by an SPC hereunder shall utilize the Term Loan Commitment of the Granting Lender to the same extent, and as if, such Term Loan Advance were made by such Granting Lender. Each party hereto hereby agrees that (i) no SPC shall be liable for any indemnity or similar payment obligation under this Agreement for which a Lender would be liable, (ii) no SPC shall be entitled to the benefits of Sections 2.09 and 2.11 (or any other increased costs protection provision) and (iii) the Granting Bank shall for all purposes, including the approval of any amendment or waiver of any provision of any Loan Document, remain the Lender of record hereunder. In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior Debt of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency, or liquidation proceeding under the laws of the United States or any State thereof. Notwithstanding anything to the contrary contained in this Agreement, any SPC may (i) with notice to, but without prior consent of, BMCA and the Administrative Agent and with the payment of a processing fee of $500 and without paying any processing fee therefor, assign all or any portion of its interest in any Term Loan Advance to the Granting Lender and (ii) disclose on a confidential basis any non-public information relating to its funding of Term Loan Advance to any rating agency, commercial paper dealer or provider of any surety or guarantee or credit or liquidity enhancement to such SPC. This subsection (k) may not be amended without the prior written consent of each Granting Lender, all or any part of whose Term Loan Advances are being funded by the SPC at the time of such amendment.

Appears in 1 contract

Samples: Revolving Credit and Guaranty Agreement (Ntelos Inc)

Assignments and Participations. (a) Each Lender ~~may, upon at least five Business Days’ notice to such Lender and the Administrative Agent,~~ may assign to one or more ~~Eligible Assignees~~ banks or other entities all or a portion of its rights and obligations under this Agreement (including without limitation all or a portion of its ~~Term Loan~~ Commitment, and the ~~Term Loan~~ Advances owing to it and the Note ~~or Notes~~ held by it), and the Issuing Bank may assign its commitment with respect to its obligation to issue Letters of Credit; ~~provided, however, that~~ provided that (i) in the case of each such assignment ~~shall be~~ of a ~~uniform, and not a varying, percentage of all rights and obligations under this Agreement,~~ Commitment (~~ii)~~ except in the case of an assignment to a Person that, immediately prior to such assignment, was a ~~Lender, an Affiliate of any Lender or an Approved Fund of any~~ Lender or an assignment of all of a Lender’s 's rights and obligations under this Agreement), the ~~aggregate~~ amount of the ~~Term Loan Commitments or Term Loan Advances~~ Commitment of the assigning Lender being assigned ~~to such Eligible Assignee~~ pursuant to such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than ~~$5,000,000~~ U.S.$2,500,000; provided, however, that no Lender shall have, at any time, a Commitment in an amount less than U.S.$2,500,000; (~~or such lesser amount as shall be approved by the Administrative Agent and, so long as no Default shall have occurred and be continuing at the time of effectiveness of such assignment, BMCA), (iii~~ii) each such assignment shall be to an Eligible Assignee, ; (iviii) ~~except in~~ the ~~case of an assignment by a Person that, immediately prior to such assignment, was a Lender, to one of its Affiliates, no such assignments~~ proposed Assignee shall be ~~permitted without the consent of~~ approved by the Administrative Agent ~~and, so long as no~~ and Fresh Produce (such approval not to be unreasonably withheld or delayed and such approval of Fresh Produce not to be required if an Event of Default ~~shall have~~ has occurred and ~~be continuing at the time of effectiveness of such assignment, BMCA~~ is continuing); and (~~in each case, which consents shall not be unreasonably withheld) and (v~~iv) the parties to each such assignment shall execute and deliver to the Administrative ~~Agent~~Agent for its own account, for its acceptance and recording in the Register, an Assignment and Acceptance, together with any Note or Notes subject to such assignment and a processing and recordation fee of ~~$3,500. (b)~~ U.S.$3,500. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in such Assignment and Acceptance, (ix) the assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder or under any other Loan Document have been assigned to it pursuant to such Assignment and Acceptance, shall have the rights and obligations of a Lender ~~hereunder~~ hereunder, and (iiy) the Lender assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights ~~(other than its rights under Sections 2.09, 2.11 and 8.04 to the extent any claim thereunder relates to an event arising prior to such assignment)~~ and be released from its obligations under this Agreement and under each other Loan Document (and, in the case of an Assignment and Acceptance covering all of or the remaining portion of an assigning Lender’s 's rights and obligations under this Agreement, such Lender shall cease to be a party hereto). (c) By executing and delivering an Assignment and Acceptance, each Lender assignor thereunder and each assignee thereunder confirm to and agree with each other and the other parties thereto and hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with any Loan Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value of, or the perfection or priority of any lien or security interest created or purported to be created under or in connection with, any Loan Document or any other instrument or document furnished pursuant thereto; (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party or the performance or observance by any Loan Party of any of its obligations under any Loan Document or any other instrument or document furnished pursuant thereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 4.01 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) such assignee will, independently and without reliance upon any Agent, such assigning Lender or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) such assignee confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes each Agent to take such action as agent on its behalf and to exercise such powers and discretion under the Loan Documents as are delegated to such Agent by the terms hereof and thereof, together with such powers and discretion as are reasonably incidental thereto; and (vii) such assignee agrees that it will perform in accordance with their terms all of the obligations that by the terms of this Agreement are required to be performed by it as a Lender. (d) The Administrative Agent acting for this purpose (but only for this purpose) as the agent of the Borrowers, shall maintain at its address referred to in Section 8.02 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 Lenders and the Term Loan Commitment of, and principal amount of the Term Loan Advances 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 Borrowers, the Agents and the Lenders shall treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrowers or any Agent or any Lender at any reasonable time and from time to time upon reasonable prior notice. (e) Notwithstanding anything to the contrary contained in clause (b) above, the Term Loan Advances (including the Notes evidencing such Term Loan Advances) are registered obligations and the right, title, and interest of the Lenders and their assignees in and to such Term Loan Advances shall be transferable only upon notation of such transfer in the Register. A Note shall only evidence the Lender’s or an assignee’s right title and interest in and to the related Term Loan Advance, and in no event is any such Note to be considered a bearer instrument or obligation. This Section 8.07 shall be construed so that the Term Loan Advances are at all times maintained in “registered form” within the meaning of sections 163(f), 871(h)(2) and 881(c)(2) of the Internal Revenue Code and any related regulations (or any successor provisions of the Internal Revenue Code or such regulations). Solely for purposes of this and for tax purposes only, the Administrative Agent shall act as each Borrower’s agent for purposes of maintaining such notations of transfer in the Register. (f) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee, together with any Note or Notes subject to such assignment, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit C hereto, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to BMCA and each other Agent. In the case of any assignment by a Lender, within five Business Days after its receipt of such notice, the Borrowers, at their own expense, shall, if requested by the assignee, execute and deliver to the Administrative Agent in exchange for the surrendered Note or Notes an amended and restated Note (which shall be marked “Amended and Restated”) to the order of such Eligible Assignee in an amount equal to the Term Loan Commitment assumed by it under each Facility pursuant to such Assignment and Acceptance and, if any assigning Lender has retained a Term Loan Commitment hereunder under such Facility and has requested a replacement Note, an amended and restated Note to the order of such assigning Lender in an amount equal to the Term Loan Commitment retained by it hereunder. Such amended and restated 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 Assignment and Acceptance and shall otherwise be in substantially the form of Exhibit A hereto. (g) Each Lender may sell participations to one or more Persons (other than any Loan Party or any of its Affiliates) in or to all or a portion of its rights and obligations under this Agreement (including all or a portion of its Term Loan Commitments, the Term Loan Advances owing to it and the Note or Notes (if any) held by it); provided, however, that (i) such Lender’s obligations under this Agreement (including its Term Loan Commitments) shall remain unchanged, (ii) 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, (iv) the Borrowers, the Agents and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and (v) no participant under any such participation shall have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent requires the consent of all Lenders. (h) Any Lender may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section 8.07, disclose to the assignee or participant or proposed assignee or participant any information relating to the Borrowers furnished to such Lender by or on behalf of the Borrowers; provided, however, 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 received by it from such Lender in accordance with the terms of Section 8.09. (i) Notwithstanding any other provision set forth in this Agreement, any Lender may at any time create a security interest in all or any portion of its rights under this Agreement (including the Term Loan 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 System. (j) Notwithstanding anything to the contrary contained herein, any Lender that is a fund that invests in bank loans may create a security interest in all or any portion of the Term Loan Advances owing to it and the Note or Notes held by it to the trustee for holders of obligations owed, or securities issued, by such fund as security for such obligations or securities, provided, that unless and until such trustee actually becomes a Lender in compliance with the other provisions of this Section 8.07, (i) no such pledge shall release the pledging Lender from any of its obligations under the Loan Documents and (ii) such trustee shall not be entitled to exercise any of the rights of a Lender under the Loan Documents even though such trustee may have acquired ownership rights with respect to the pledged interest through foreclosure or otherwise. (k) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Lender”) may grant to a special purpose funding vehicle identified as such in writing from time to time by the Granting Lender to the Administrative Agent and BMCA (an “SPC”) the option to provide all or any part of any Term Loan Advance that such Granting Lender would otherwise be obligated to make pursuant to this Agreement, provided that (i) nothing herein shall constitute a commitment by any SPC to fund any Term Loan Advance, and (ii) if an SPC elects not to exercise such option or otherwise fails to make all or any part of such Term Loan Advance, the Granting Lender shall be obligated to make such Term Loan Advance pursuant to the terms hereof. The making of an Advance by an SPC hereunder shall utilize the Term Loan Commitment of the Granting Lender to the same extent, and as if, such Term Loan Advance were made by such Granting Lender. Each party hereto hereby agrees that (i) no SPC shall be liable for any indemnity or similar payment obligation under this Agreement for which a Lender would be liable, (ii) no SPC shall be entitled to the benefits of Sections 2.09 and 2.11 (or any other increased costs protection provision) and (iii) the Granting Bank shall for all purposes, including the approval of any amendment or waiver of any provision of any Loan Document, remain the Lender of record hereunder. In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior Debt of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency, or liquidation proceeding under the laws of the United States or any State thereof. Notwithstanding anything to the contrary contained in this Agreement, any SPC may (i) with notice to, but without prior consent of, BMCA and the Administrative Agent and with the payment of a processing fee of $500 and without paying any processing fee therefor, assign all or any portion of its interest in any Term Loan Advance to the Granting Lender and (ii) disclose on a confidential basis any non-public information relating to its funding of Term Loan Advance to any rating agency, commercial paper dealer or provider of any surety or guarantee or credit or liquidity enhancement to such SPC. This subsection (k) may not be amended without the prior written consent of each Granting Lender, all or any part of whose Term Loan Advances are being funded by the SPC at the time of such amendment.

Appears in 1 contract

Samples: Credit Agreement (Fresh Del Monte Produce Inc)

Assignments and Participations. (a) Each Lender ~~may, upon at least five Business Days’ notice to such Lender and the Administrative Agent,~~ Party may assign to one or more Eligible Assignees all or a portion of its rights and obligations under this Agreement (~~including~~ including, without limitation, all or a portion of its ~~Term Loan Commitment~~Commitment or Commitments, the ~~Term Loan~~ Advances owing to it and the Note or Notes held by it); provided, however, that (i) with respect to the Term Loan A Facility and the Revolving Credit Facility, each such assignment shall be of a uniform, and not a varying, percentage of all rights and obligations under ~~this Agreement~~and in respect of such Facilities on a pro rata basis with respect to such Facilities, (ii) except in the case of an assignment to a Person that, immediately prior to such assignment, was a ~~Lender, an Affiliate of any Lender or an Approved Fund of any~~ Lender or an assignment of all of a ~~Lender’s~~ Lender Party's rights and obligations under this Agreement, the ~~aggregate~~ amount of the ~~Term Loan Commitments or Term Loan Advances~~ Commitment of the assigning Lender Party being assigned ~~to such Eligible Assignee~~ pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $5,000,000 (or such lesser amount as shall be approved by the Administrative Agent and, so long as no Default shall have occurred and be continuing at the time of effectiveness of such assignment, BMCA)5,000,000, (iii) ~~each such assignment shall be to an Eligible Assignee, (iv) except in the case of an assignment by a Person that, immediately prior to such assignment, was a Lender, to one of its Affiliates,~~ no such assignments shall be permitted without the prior consent of the Administrative Agent ~~and~~(which may not be unreasonably withheld), ~~so long as~~ (iv) no ~~Default~~ such assignment shall ~~have occurred~~ be permitted if, immediately after giving effect thereto, the Borrower would be required to make payments to or on behalf of the assignee Lender Party pursuant to Section 2.10(a) or (b) or Section 2.12 and ~~be continuing~~ the assignor Lender Party was not, at the time of ~~effectiveness of~~ such assignment, ~~BMCA~~ entitled to receive any payment pursuant to Section 2.10(a) or (~~in each case~~b) or Section 2.12, ~~which consents shall not be unreasonably withheld)~~ and (v) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together with any Note or Notes subject to such assignment and a processing and recordation fee of $~~3,500~~3,000. (b) Upon such execution, delivery, acceptance and recording, from and after the effective date specified in such Assignment and Acceptance, (ix) the assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, have the rights and obligations of a Lender or Issuing Bank, as the case may be, hereunder and (iiy) the Lender or Issuing Bank assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights ~~(other than its rights under Sections 2.09, 2.11 and 8.04 to the extent any claim thereunder relates to an event arising prior to such assignment)~~ and be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all of or the remaining portion of an assigning Lender’s 's or Issuing Bank's rights and obligations under this Agreement, such Lender or Issuing Bank shall cease to be a party hereto), except as to Sections 2.10, 2.12 and 8.04 for the period prior to the effective date of such assignments. (c) By executing and delivering an Assignment and Acceptance, ~~each~~ the Lender Party assignor thereunder and ~~each~~ the assignee thereunder confirm to and agree with each other and the other parties ~~thereto and~~ hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender Party makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or any other Loan Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value of, or the perfection or priority of any lien or security interest created or purported to be created under or in connection ~~with,~~ with this Agreement or any other Loan Document or any other instrument or document furnished pursuant hereto or thereto; (ii) such assigning Lender Party makes no representation or warranty and assumes no responsibility with respect to the financial condition of the Borrower or any other Loan Party or the performance or observance by any Loan Party of any of its obligations under any Loan Document or any other instrument or document furnished pursuant thereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 4.01 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) such assignee will, independently and without reliance upon ~~any~~ the Administrative Agent, such assigning Lender Party or any other Lender Party and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) such assignee confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes ~~each~~ the Administrative Agent to take such action as agent on its behalf and to exercise such powers and discretion under this Agreement and the other Loan Documents as are delegated to ~~such~~ the Administrative Agent by the terms hereof and thereof, together with such powers and discretion as are reasonably incidental thereto; and (vii) such assignee agrees that it will perform in accordance with their terms all of the obligations ~~that~~ which by the terms of this Agreement are required to be performed by it as a ~~Lender~~Lender or Issuing Bank, as the case may be. (d) The Administrative Agent ~~acting for this purpose (but only for this purpose) as the agent of the Borrowers,~~ shall maintain at its address referred to in Section 8.02 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 ~~Lenders~~ Lender Parties and the ~~Term Loan~~ Commitment under each Facility of, and principal amount of the ~~Term Loan~~ Advances owing under each Facility to, each Lender Party from time to time (the ~~“Register”~~"REGISTER"). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the ~~Borrowers~~Borrower, the ~~Agents~~ Administrative Agent and the ~~Lenders shall~~ Lender Parties may treat each Person whose name is recorded in the Register as a Lender Party hereunder for all purposes of this Agreement. The Register shall be available for inspection by the ~~Borrowers or any Agent~~ Borrower or any Lender Party at any reasonable time and from time to time upon reasonable prior notice. (e) Notwithstanding anything to the contrary contained in clause (b) above, the Term Loan Advances (including the Notes evidencing such Term Loan Advances) are registered obligations and the right, title, and interest of the Lenders and their assignees in and to such Term Loan Advances shall be transferable only upon notation of such transfer in the Register. A Note shall only evidence the Lender’s or an assignee’s right title and interest in and to the related Term Loan Advance, and in no event is any such Note to be considered a bearer instrument or obligation. This Section 8.07 shall be construed so that the Term Loan Advances are at all times maintained in “registered form” within the meaning of sections 163(f), 871(h)(2) and 881(c)(2) of the Internal Revenue Code and any related regulations (or any successor provisions of the Internal Revenue Code or such regulations). Solely for purposes of this and for tax purposes only, the Administrative Agent shall act as each Borrower’s agent for purposes of maintaining such notations of transfer in the Register. (f) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender Party and an assignee, together with any Note or Notes subject to such ~~assignment~~assignment and the appropriate processing and recordation fee, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit C A hereto, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to ~~BMCA and each other Agent~~the Borrower. In the case of any assignment by a Lender, within five (5) Business Days after its receipt of such notice, the ~~Borrowers~~Borrower, at ~~their~~ its own expense, ~~shall, if requested by the assignee,~~ shall execute and deliver to the Administrative Agent in exchange for the surrendered Note or Notes ~~an amended and restated~~ a new Note ~~(which shall be marked “Amended and Restated”)~~ to the order of such Eligible Assignee in an amount equal to the ~~Term Loan~~ Commitment assumed by it under ~~each~~ a Facility pursuant to such Assignment and Acceptance and, if ~~any~~ the assigning Lender has retained a ~~Term Loan~~ Commitment hereunder under such ~~Facility and has requested~~ Facility, a ~~replacement Note, an amended and restated~~ new Note to the order of ~~such~~ the assigning Lender in an amount equal to the ~~Term Loan~~ Commitment retained by it hereunder. Such ~~amended and restated~~ 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 Assignment and Acceptance and shall otherwise be in substantially the form of ~~Exhibit A hereto~~the applicable Notes. (f) The Issuing Bank may assign to an Eligible Assignee all of its rights and obligations under the undrawn portion of its Letter of Credit Commitment at any time; provided, however, that (i) each such assignment shall be to an Eligible Assignee and (ii) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together with a processing and recordation fee of $3,000. (g) Each Lender Party may sell participations to one or more Persons (other than any Loan Party or any of its Affiliates) in or to all or a portion of its rights and obligations under this Agreement (~~including~~ including, without limitation, all or a portion of its ~~Term Loan~~ Commitments, the ~~Term Loan~~ Advances owing to it and the Note or ~~Notes (~~Notes, if any) , held by it); provided, however, that (i) such ~~Lender’s~~ Lender Party's obligations under this Agreement (~~including~~ including, without limitation, its ~~Term Loan~~ Commitments) shall remain unchanged, (ii) such Lender Party shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) such Lender Party shall remain the holder of any such Note for all purposes of this Agreement, (iv) the ~~Borrowers~~Borrower, the ~~Agents~~ Administrative Agent and the other ~~Lenders~~ Lender Parties shall continue to deal solely and directly with such Lender Party in connection with such ~~Lender’s~~ Lender Party's rights and obligations under this Agreement and (v) no participant under any such participation shall have any right (x) to any payments under Sections 2.10 or 2.12 (other than to the extent the Lender Party is entitled thereto) and (y) to approve any ~~amendment~~ amendment, waiver or ~~waiver~~ other modification of any provision of this Agreement or any other Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, ~~waiver~~ waiver, modification or consent ~~requires~~ would reduce the ~~consent~~ principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, or postpone any date fixed for any payment of principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, or release all ~~Lenders~~or substantially all of the Collateral. (h) Any Lender Party may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section 8.07, disclose to the assignee or participant or proposed assignee or ~~participant~~ participant, any information relating to the ~~Borrowers~~ Borrower furnished to such Lender Party by or on behalf of the ~~Borrowers~~Borrower; provided, however, 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 received by it from such Lender ~~in accordance with the terms of Section 8.09~~Party. (i) Notwithstanding any other provision set forth in this Agreement, any Lender Party may at any time create a security interest in all or any portion of its rights under this Agreement (~~including~~ including, without limitation, the ~~Term Loan~~ 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 System. (j) Notwithstanding anything to the contrary contained herein, any Lender that is a fund that invests in bank loans may create a security interest in all or any portion of the Term Loan Advances owing to it and the Note or Notes held by it to the trustee for holders of obligations owed, or securities issued, by such fund as security for such obligations or securities, provided, that unless and until such trustee actually becomes a Lender in compliance with the other provisions of this Section 8.07, (i) no such pledge shall release the pledging Lender from any of its obligations under the Loan Documents and (ii) such trustee shall not be entitled to exercise any of the rights of a Lender under the Loan Documents even though such trustee may have acquired ownership rights with respect to the pledged interest through foreclosure or otherwise. (k) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Lender”) may grant to a special purpose funding vehicle identified as such in writing from time to time by the Granting Lender to the Administrative Agent and BMCA (an “SPC”) the option to provide all or any part of any Term Loan Advance that such Granting Lender would otherwise be obligated to make pursuant to this Agreement, provided that (i) nothing herein shall constitute a commitment by any SPC to fund any Term Loan Advance, and (ii) if an SPC elects not to exercise such option or otherwise fails to make all or any part of such Term Loan Advance, the Granting Lender shall be obligated to make such Term Loan Advance pursuant to the terms hereof. The making of an Advance by an SPC hereunder shall utilize the Term Loan Commitment of the Granting Lender to the same extent, and as if, such Term Loan Advance were made by such Granting Lender. Each party hereto hereby agrees that (i) no SPC shall be liable for any indemnity or similar payment obligation under this Agreement for which a Lender would be liable, (ii) no SPC shall be entitled to the benefits of Sections 2.09 and 2.11 (or any other increased costs protection provision) and (iii) the Granting Bank shall for all purposes, including the approval of any amendment or waiver of any provision of any Loan Document, remain the Lender of record hereunder. In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior Debt of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency, or liquidation proceeding under the laws of the United States or any State thereof. Notwithstanding anything to the contrary contained in this Agreement, any SPC may (i) with notice to, but without prior consent of, BMCA and the Administrative Agent and with the payment of a processing fee of $500 and without paying any processing fee therefor, assign all or any portion of its interest in any Term Loan Advance to the Granting Lender and (ii) disclose on a confidential basis any non-public information relating to its funding of Term Loan Advance to any rating agency, commercial paper dealer or provider of any surety or guarantee or credit or liquidity enhancement to such SPC. This subsection (k) may not be amended without the prior written consent of each Granting Lender, all or any part of whose Term Loan Advances are being funded by the SPC at the time of such amendment.

Appears in 1 contract

Samples: Credit Agreement (Applied Graphics Technologies Inc)

Assignments and Participations. (a) Each Lender ~~may~~may and, so long as no Default shall have occurred and be continuing, if demanded by any Borrower (following a demand by such Lender pursuant to Section 2.10 or 2.12) upon at least five Business Days’ ' notice to such Lender and the Administrative Agent, will assign to one or more Eligible Assignees all or a portion of its rights and obligations under this Agreement (~~including~~ including, without limitation, all or a portion of its ~~Term Loan Commitment~~Commitment or Commitments, the ~~Term Loan~~ Advances owing to it and the Note or Notes held by it); provided, however, that (i) each such assignment shall be of a uniform, and not a varying, percentage of all rights and obligations under ~~this Agreement~~and in respect of Facilities, (ii) except in the case of an assignment to a Person that, immediately prior to such assignment, was a ~~Lender, an Affiliate of any~~ Lender or an ~~Approved Fund~~ Affiliate of any Lender or an assignment of all of a Lender’s 's rights and obligations under this Agreement, the aggregate amount of the ~~Term Loan~~ Commitments ~~or Term Loan Advances~~ being assigned to such Eligible Assignee pursuant to such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $5,000,000 (or such lesser amount as shall be approved by the Administrative Agent and, so long as no Default shall have occurred and be continuing at the time of effectiveness of such assignment, ~~BMCA~~each Borrower), (iii) each such assignment shall be to an Eligible Assignee, (iv) ~~except in~~ each such assignment made as a result of a demand by the ~~case of~~ Borrower pursuant to this Section 9.07(a) shall be arranged by the applicable Borrower after consultation with the Administrative Agent and shall be either an assignment of all of the rights and obligations of the assigning Lender under this Agreement or an assignment of a portion of such rights and obligations made concurrently with another such assignment or other such assignments that together cover all of the rights and obligations of the assigning Lender under this Agreement, (v) no Lender shall be obligated to make any such assignment as a result of a demand by ~~a Person that, immediately prior~~ the applicable Borrower pursuant to this Section 9.07(a) unless and until such Lender shall have received one or more payments from either such Borrower or one or more Eligible Assignees in an aggregate amount at least equal to the aggregate outstanding principal amount of the Advances owing to such ~~assignment, was a~~ Lender, together with accrued interest thereon to ~~one~~ the date of ~~its Affiliates~~payment of such principal amount and all other amounts payable to such Lender under this Agreement, (vi) no such assignments shall be permitted without the consent of the Administrative Agent ~~and, so long as no Default~~ until the Administrative Agent shall have ~~occurred and be continuing at~~ notified the ~~time~~ Lender Parties that syndication of ~~effectiveness of such assignment, BMCA (in each case, which consents shall not be unreasonably withheld)~~ the Commitments hereunder has been completed and (vvii) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together with any Note or Notes subject to such assignment and a processing and recordation fee of $3,500. (b) Upon such execution, delivery, acceptance and recording, from and after the effective date specified in such 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, have the rights and obligations of a Lender or Issuing Bank, as the case may be, hereunder and (ii) the Lender or Issuing Bank assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (other than its rights under Sections ~~2.09~~2.10, ~~2.11~~ 2.12 and 8.04 to the extent any claim thereunder relates to an event arising prior to such assignment) and be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all of the remaining portion of an assigning Lender’s 's or Issuing Bank's rights and obligations under this Agreement, such Lender or Issuing Bank shall cease to be a party hereto). (c) By executing and delivering an Assignment and Acceptance, each Lender Party assignor thereunder and each assignee thereunder confirm to and agree with each other and the other parties thereto and hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender Party makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with any Loan Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value of, or the perfection or priority of any lien or security interest created or purported to be created under or in connection with, any Loan Document or any other instrument or document furnished pursuant thereto; (ii) such assigning Lender Party makes no representation or warranty and assumes no responsibility with respect to the financial condition of any ~~Loan Party~~ Borrower or the performance or observance by any ~~Loan Party~~ Borrower of any of its obligations under any Loan Document or any other instrument or document furnished pursuant thereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 4.01 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) such assignee will, independently and without reliance upon any Agent, such assigning Lender Party or any other Lender Party and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) such assignee confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes each Agent to take such action as agent on its behalf and to exercise such powers and discretion under the Loan Documents as are delegated to such Agent by the terms hereof and thereof, together with such powers and discretion as are reasonably incidental thereto; and (vii) such assignee agrees that it will perform in accordance with their terms all of the obligations that by the terms of this Agreement are required to be performed by it as a ~~Lender~~Lender or Issuing Bank, as the case may be. (d) The Administrative Agent ~~acting for this purpose (but only for this purpose) as the agent of the Borrowers,~~ shall maintain at its address referred to in Section ~~8.02~~ 9.02 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 ~~Lenders~~ Lender Parties and the ~~Term Loan~~ Commitment under each Facility of, and principal amount of the ~~Term Loan~~ Advances owing under each Facility to, each Lender Party from time to time (the ~~“Register”~~"REGISTER"). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrowers, the Agents and the ~~Lenders~~ Lender Parties shall treat each Person whose name is recorded in the Register as a Lender Party hereunder for all purposes of this Agreement. The Register shall be available for inspection by the ~~Borrowers~~ Borrower or any Agent or any Lender Party at any reasonable time and from time to time upon reasonable prior notice. (e) Notwithstanding anything to the contrary contained in clause (b) above, the Term Loan Advances (including the Notes evidencing such Term Loan Advances) are registered obligations and the right, title, and interest of the Lenders and their assignees in and to such Term Loan Advances shall be transferable only upon notation of such transfer in the Register. A Note shall only evidence the Lender’s or an assignee’s right title and interest in and to the related Term Loan Advance, and in no event is any such Note to be considered a bearer instrument or obligation. This Section 8.07 shall be construed so that the Term Loan Advances are at all times maintained in “registered form” within the meaning of sections 163(f), 871(h)(2) and 881(c)(2) of the Internal Revenue Code and any related regulations (or any successor provisions of the Internal Revenue Code or such regulations). Solely for purposes of this and for tax purposes only, the Administrative Agent shall act as each Borrower’s agent for purposes of maintaining such notations of transfer in the Register. (f) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee, together with any Note or Notes subject to such assignment, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit C hereto, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to BMCA and each other Agent. In the case of any assignment by a Lender, within five Business Days after its receipt of such notice, the Borrowers, at their own expense, shall, if requested by the assignee, execute and deliver to the Administrative Agent in exchange for the surrendered Note or Notes an amended and restated Note (which shall be marked “Amended and Restated”) to the order of such Eligible Assignee in an amount equal to the Term Loan Commitment assumed by it under each Facility pursuant to such Assignment and Acceptance and, if any assigning Lender has retained a Term Loan Commitment hereunder under such Facility and has requested a replacement Note, an amended and restated Note to the order of such assigning Lender in an amount equal to the Term Loan Commitment retained by it hereunder. Such amended and restated 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 Assignment and Acceptance and shall otherwise be in substantially the form of Exhibit A hereto. (g) Each Lender may sell participations to one or more Persons (other than any Loan Party or any of its Affiliates) in or to all or a portion of its rights and obligations under this Agreement (including all or a portion of its Term Loan Commitments, the Term Loan Advances owing to it and the Note or Notes (if any) held by it); provided, however, that (i) such Lender’s obligations under this Agreement (including its Term Loan Commitments) shall remain unchanged, (ii) 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, (iv) the Borrowers, the Agents and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and (v) no participant under any such participation shall have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent requires the consent of all Lenders. (h) Any Lender may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section 8.07, disclose to the assignee or participant or proposed assignee or participant any information relating to the Borrowers furnished to such Lender by or on behalf of the Borrowers; provided, however, 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 received by it from such Lender in accordance with the terms of Section 8.09. (i) Notwithstanding any other provision set forth in this Agreement, any Lender may at any time create a security interest in all or any portion of its rights under this Agreement (including the Term Loan 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 System. (j) Notwithstanding anything to the contrary contained herein, any Lender that is a fund that invests in bank loans may create a security interest in all or any portion of the Term Loan Advances owing to it and the Note or Notes held by it to the trustee for holders of obligations owed, or securities issued, by such fund as security for such obligations or securities, provided, that unless and until such trustee actually becomes a Lender in compliance with the other provisions of this Section 8.07, (i) no such pledge shall release the pledging Lender from any of its obligations under the Loan Documents and (ii) such trustee shall not be entitled to exercise any of the rights of a Lender under the Loan Documents even though such trustee may have acquired ownership rights with respect to the pledged interest through foreclosure or otherwise. (k) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Lender”) may grant to a special purpose funding vehicle identified as such in writing from time to time by the Granting Lender to the Administrative Agent and BMCA (an “SPC”) the option to provide all or any part of any Term Loan Advance that such Granting Lender would otherwise be obligated to make pursuant to this Agreement, provided that (i) nothing herein shall constitute a commitment by any SPC to fund any Term Loan Advance, and (ii) if an SPC elects not to exercise such option or otherwise fails to make all or any part of such Term Loan Advance, the Granting Lender shall be obligated to make such Term Loan Advance pursuant to the terms hereof. The making of an Advance by an SPC hereunder shall utilize the Term Loan Commitment of the Granting Lender to the same extent, and as if, such Term Loan Advance were made by such Granting Lender. Each party hereto hereby agrees that (i) no SPC shall be liable for any indemnity or similar payment obligation under this Agreement for which a Lender would be liable, (ii) no SPC shall be entitled to the benefits of Sections 2.09 and 2.11 (or any other increased costs protection provision) and (iii) the Granting Bank shall for all purposes, including the approval of any amendment or waiver of any provision of any Loan Document, remain the Lender of record hereunder. In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior Debt of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency, or liquidation proceeding under the laws of the United States or any State thereof. Notwithstanding anything to the contrary contained in this Agreement, any SPC may (i) with notice to, but without prior consent of, BMCA and the Administrative Agent and with the payment of a processing fee of $500 and without paying any processing fee therefor, assign all or any portion of its interest in any Term Loan Advance to the Granting Lender and (ii) disclose on a confidential basis any non-public information relating to its funding of Term Loan Advance to any rating agency, commercial paper dealer or provider of any surety or guarantee or credit or liquidity enhancement to such SPC. This subsection (k) may not be amended without the prior written consent of each Granting Lender, all or any part of whose Term Loan Advances are being funded by the SPC at the time of such amendment.

Appears in 1 contract

Samples: Omnibus Credit Agreement (McDermott International Inc)

Assignments and Participations. (a) Each Lender may, ~~upon at least five Business Days’ notice to such Lender~~ with the prior written consent of the Borrower and the Administrative ~~Agent~~Agent (which consents shall not unreasonably be withheld or delayed and, in the case of the Borrower, shall not be required (x) if an Event of Default then exists and (y) in connection with an assignment to a Lender, an Affiliate of a Lender or a Related Fund), assign to one or more ~~Eligible Assignees~~ banks or other entities all or a portion of its rights and obligations under this Agreement and the other Loan Documents (~~including~~ including, without limitation, all or a portion of its ~~Term Loan~~ Commitment, the ~~Term Loan Advances~~ Loans owing to it and ~~the~~ any Note ~~or Notes~~ held by it); provided, however, that (i) each such assignment shall be of a ~~uniform~~constant, and not a varying, percentage of all ~~rights and obligations under this Agreement, (ii) except in~~ the ~~case of an assignment to a Person that, immediately prior to such assignment, was a Lender, an Affiliate of any Lender or an Approved Fund of any Lender or an assignment of all of a~~ assigning Lender’s rights and obligations under this Agreement, ; (ii) the ~~aggregate~~ amount of the ~~Term Loan Commitments or Term Loan Advances~~ Commitment and/or Loans of the assigning Lender being assigned ~~to such Eligible Assignee~~ pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $~~5,000,000~~ 1,000,000 (or if less, the entire amount of such ~~lesser amount as~~ Lender’s Commitment and/or Loans) and shall be ~~approved by~~ an integral multiple of $1,000,000, provided, however, that simultaneous assignments by, or to, two or more Related Funds shall be combined for purposes of determining whether the ~~Administrative Agent and, so long as no Default shall have occurred and be continuing at the time of effectiveness of such assignment, BMCA),~~ minimum assignment requirement in this clause (ii) has been met; (iii) each such assignment shall be to an Eligible ~~Assignee,~~ Assignee and (iv) except in the case of an assignment by a Person that, immediately prior to such assignment, was a Lender, to one of its Affiliates, no such assignments shall be permitted without the consent of the Administrative Agent and, so long as no Default shall have occurred and be continuing at the time of effectiveness of such assignment, BMCA (in each case, which consents shall not be unreasonably withheld) and (v) the parties to each such assignment shall execute and deliver via an electronic settlement system acceptable to the Administrative Agent or, if previously agreed to by the Administrative Agent, manually, to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and ~~Acceptance,~~ Acceptance together with any Note ~~or Notes~~ subject to such assignment and a processing and recordation fee of $~~3,500.~~ 3,500 (b) which such processing and recordation fee may be waived or reduced in the Administrative Agent’s sole discretion). Upon such execution, delivery, acceptance and recording, from and after the effective date specified in ~~such~~ each 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, have the rights and obligations of a Lender hereunder and (ii) the Lender assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights ~~(other than its rights under Sections 2.09, 2.11 and 8.04 to the extent any claim thereunder relates to an event arising prior to such assignment)~~ and be released from its continuing obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all of or the remaining portion of an assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto).. (NY) 08014/507/FIRSTENERGY/CA.doc (cb) By executing and delivering an Assignment and Acceptance, ~~each~~ the Lender assignor thereunder and ~~each~~ the assignee thereunder confirm to and agree with each other and the other parties ~~thereto and~~ hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with ~~any Loan Document~~ this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value ~~of, or the perfection or priority~~ of ~~any lien or security interest created or purported to be created under or in connection with, any Loan Document~~ this Agreement or any other instrument or document furnished pursuant ~~thereto~~hereto; (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of ~~any~~ the Loan ~~Party~~ Parties or the performance or observance by ~~any~~ the Loan ~~Party~~ Parties of any of ~~its~~ their obligations under ~~any Loan Document~~ this Agreement or any other instrument or document furnished pursuant ~~thereto~~hereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section ~~4.01~~ 4.01(g) and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) such assignee will, independently and without reliance upon ~~any~~ the Administrative Agent, such assigning Lender or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) such assignee confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes ~~each~~ the Administrative Agent to take such action as agent on its behalf and to exercise such powers ~~and discretion~~ under ~~the Loan Documents~~ this Agreement as are delegated to ~~such~~ the Administrative Agent by the terms ~~hereof and thereof~~hereof, together with such powers ~~and discretion~~ as are reasonably incidental thereto; and (vii) such assignee agrees that it will perform in accordance with their terms all of the obligations that by the terms of this Agreement are required to be performed by it as a Lender. (dc) The Administrative Agent ~~acting for this purpose (but only for this purpose) as the agent of the Borrowers,~~ shall maintain at its address referred to in Section 8.02 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 Lenders and the ~~Term Loan~~ Commitment of, and principal amount of the ~~Term Loan Advances~~ Loans owing to, each Lender from time to time (the “Register”). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the ~~Borrowers~~Borrower, the ~~Agents~~ Administrative Agent and the Lenders ~~shall~~ 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 Agent~~ Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice. (e) Notwithstanding anything to the contrary contained in clause (b) above, the Term Loan Advances (including the Notes evidencing such Term Loan Advances) are registered obligations and the right, title, and interest of the Lenders and their assignees in and to such Term Loan Advances shall be transferable only upon notation of such transfer in the Register. A Note shall only evidence the Lender’s or an assignee’s right title and interest in and to the related Term Loan Advance, and in no event is any such Note to be considered a bearer instrument or obligation. This Section 8.07 shall be construed so that the Term Loan Advances are at all times maintained in “registered form” within the meaning of sections 163(f), 871(h)(2) and 881(c)(2) of the Internal Revenue Code and any related regulations (or any successor provisions of the Internal Revenue Code or such regulations). Solely for purposes of this and for tax purposes only, the Administrative Agent shall act as each Borrower’s agent for purposes of maintaining such notations of transfer in the Register. (fd) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an ~~assignee~~assignee representing that it is an Eligible Assignee, together with (i) any Note ~~or Notes~~ subject to such assignment, (ii) an administrative questionnaire completed in respect of the assignee (unless the assignee shall already be a Lender hereunder), (iii) the processing and recordation fee referred to in paragraph (a) above, if applicable, (iv) the written consent of the Administrative Agent and, if required, the Borrower to such assignment and (v) any applicable tax forms, the Administrative Agent shall, if such Assignment and Acceptance has been ~~completed and is in substantially the form of Exhibit C hereto~~completed, promptly (ix) accept such Assignment and Acceptance, (iiy) record the information contained therein in the Register and (~~iii~~z) give prompt notice thereof to ~~BMCA and each other Agent~~the Borrower. In The Borrower shall deliver any Note requested pursuant to Section 2.18 in favor of such assignee or assignor (as the case ~~of any assignment by a Lender~~may be), ~~within five Business Days~~ after its receipt of such notice, the Borrowers, at their own expense, shall, if requested by the assignee, execute and deliver to the Administrative Agent in exchange for the surrendered Note or Notes an amended and restated Note (which shall be marked “Amended and Restated”) to the order of such Eligible Assignee in an amount equal to the Term Loan Commitment assumed by it under each Facility pursuant giving effect to such Assignment and Acceptance and, if any assigning Lender has retained a Term Loan Commitment hereunder under such Facility and has requested a replacement Note, an amended and restated Note to the order of such assigning Lender in an amount equal to the Term Loan Commitment retained by it hereunderassignment. Such amended and restated 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 Assignment and Acceptance and shall otherwise be in substantially the form of Exhibit A hereto.(NY) 08014/507/FIRSTENERGY/CA.doc (ge) Each Lender may sell participations to one or more ~~Persons (~~banks or other ~~than any Loan Party or any of its Affiliates)~~ entities in or to all or a portion of its rights and obligations under this Agreement and the other Loan Documents (~~including~~ including, without limitation, all or a portion of its ~~Term Loan Commitments~~Commitment, the ~~Term Loan Advances~~ Loans owing to it and ~~the~~ any Note ~~or Notes (if any)~~ held by it); provided, however, that (i) such Lender’s obligations under this Agreement (~~including~~ including, without limitation, its ~~Term Loan Commitments~~Commitment hereunder) shall remain unchanged, (ii) 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, (iv) such Lender may not subject its ability to consent to any modification of this Agreement or any Note to the ~~Borrowers~~prior consent of the bank or other entity to which such participation was sold, except in the case of proposed waivers or modifications with respect to interest, principal and fees payable hereunder and under any Note and with respect to any extension of the Maturity Date and (v) the Borrower, the ~~Agents~~ Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and (v) no participant under any such participation shall have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent requires the consent of all LendersAgreement. (hf) Any Lender may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section ~~8.07~~8.08, disclose to the assignee or participant or proposed assignee or ~~participant~~ participant, any information relating to the ~~Borrowers~~ Loan Parties furnished to such Lender by or on behalf of the ~~Borrowers~~Loan Parties; provided, ~~however, that,~~ 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~~ confidential information relating to the Loan Parties received by it from such ~~Lender in accordance with the terms of Section 8.09~~Lender. (i) Notwithstanding any other provision set forth in this Agreement, any Lender may at any time create a security interest in all or any portion of its rights under this Agreement (including the Term Loan 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 System. (jg) Notwithstanding anything to the contrary ~~contained~~ set forth herein, any Lender ~~that is a fund that invests~~ may assign, as collateral or otherwise, any of its rights hereunder and under any Note (including, without limitation, its rights to receive payments of principal and interest hereunder and under any Note) to (i) any Federal Reserve Bank, (ii) any Affiliate of such Lender or (iii) any other Lender, in ~~bank loans may create a security interest in all~~ either case, without notice to or ~~any portion~~ consent of the ~~Term~~ Loan ~~Advances~~ Parties or the Administrative Agent; provided, that no such assignment shall release the assigning Lender from its obligations hereunder. (h) If any Lender shall make demand for payment under Section 2.13(a), 2.13(b) or 2.16, or shall deliver any notice to the Administrative Agent pursuant to Section 2.14 resulting in the suspension of certain obligations of the Lenders with respect to Eurodollar Rate Loans, then, within 30 days of such demand (if, and only if, such payment demanded under Section 2.13(a), 2.13(b) or 2.16 as the case may be, shall have been made by the Borrower) or such notice (if such suspension is still in effect), as the case may be, the Borrower may demand that such Lender assign in accordance with this Section 8.08 to one or more Eligible Assignees designated by the Borrower all (but not less than all) of such Lender’s Commitment and the Loans owing to it ~~and~~ within the ~~Note or Notes held~~ next 15 days. If any such Eligible Assignee designated by it the Borrower shall fail to ~~the trustee for holders of obligations owed~~consummate such assignment on terms acceptable to such Lender, or ~~securities issued~~if the Borrower shall fail to designate any such Eligible Assignee for all of such Lender’s Commitment or Advances, by then such ~~fund as security~~ Lender may assign such Commitment and Loans to any other Eligible Assignee in accordance with this Section 8.08 during such 15 day period; it being understood for ~~such obligations or securities, provided, that unless and until such trustee actually becomes a Lender in compliance with the other provisions~~ purposes of this Section ~~8.07~~8.08(h) 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 shall agree to such assignment and shall offer compensation to such Lender in an amount equal to the sum of the principal amount of all Loans outstanding to such Lender plus all interest accrued thereon to the date of such payment plus all other amounts payable by the Borrower to such Lender hereunder (whether or not then due) as of the date of such payment accrued in favor of such Lender hereunder. Notwithstanding the foregoing, no Lender shall make any assignment at any time pursuant to this subsection (h) if, at such time, (i) ~~no such pledge shall release~~ an Event of Default or Unmatured Default has occurred and is continuing, (ii) the ~~pledging Lender from any~~ Borrower has not satisfied all of its obligations ~~under the Loan Documents and (ii) such trustee shall not be entitled to exercise any of the rights of a Lender under the Loan Documents even though such trustee may have acquired ownership rights~~ hereunder with respect to such Lender or (iii) such replacement of such Lender is not acceptable to the ~~pledged interest through foreclosure or otherwise.~~Administrative Agent. (NY) 08014/507/FIRSTENERGY/CA.doc (ki) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Lender”) may grant to a special purpose funding vehicle (an “SPC”) of such Granting Lender identified as such in writing from time to time by the Granting Lender to the Administrative Agent and ~~BMCA (an “SPC”)~~ the Borrower, the option to provide to the Borrower all or any part of any ~~Term~~ Loan ~~Advance~~ that such Granting Lender would otherwise be obligated to make to the Borrower pursuant to this Agreement, ; provided that (i) nothing herein shall constitute a commitment by any such SPC to ~~fund~~ make any ~~Term Loan Advance~~Loan, ~~and~~ (ii) if an such SPC elects not to exercise such option or otherwise fails to ~~make~~ provide all or any part of such ~~Term Loan Advance~~Loan, the Granting Lender shall be obligated to make such ~~Term~~ Loan ~~Advance~~ pursuant to the terms ~~hereof~~hereof and (iii) no SPC or Granting Lender shall be entitled to receive any greater amount pursuant to Section 2.09 or 2.13 than the Granting Lender would have been entitled to receive had the Granting Lender not otherwise granted such SPC the option to provide any Loan to the Borrower. The making of ~~an Advance~~ a Loan by an SPC hereunder shall utilize the ~~Term Loan~~ Commitment of the Granting Lender to the same extent, and as if, such ~~Term~~ Loan ~~Advance~~ were made by such Granting Lender. Each party hereto hereby agrees that ~~(i)~~ no SPC shall be liable for any indemnity or similar payment obligation under this Agreement for which a Lender would otherwise be ~~liable~~liable so long as, ~~(ii) no SPC shall be entitled~~ and to the ~~benefits of Sections 2.09 and 2.11 (~~extent that, the related Granting Lender provides such indemnity or any other increased costs protection provision) and (iii) the Granting Bank shall for all purposes, including the approval of any amendment or waiver of any provision of any Loan Document, remain the Lender of record hereundermakes such payment. In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior ~~Debt~~ indebtedness of any SPC, it will not institute ~~against,~~ against or join any other person in instituting ~~against,~~ against such SPC any bankruptcy, reorganization, arrangement, ~~insolvency,~~ insolvency or liquidation ~~proceeding~~ proceedings under the laws of the United States or any State thereof. Notwithstanding the foregoing, the Granting Lender unconditionally agrees to indemnify the Borrower, the Administrative Agent and each Lender against all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever that may be incurred by or asserted against the Borrower, the Administrative Agent or such Lender, as the case may be, in any way relating to or arising as a consequence of any such forbearance or delay in the initiation of any such proceeding against its SPC. Each party hereto hereby acknowledges and agrees that no SPC shall have the rights of a Lender hereunder, such rights being retained by the applicable Granting Lender. Accordingly, and without limiting the foregoing, each party hereby further acknowledges and agrees that no SPC shall have any voting rights hereunder and that the voting rights attributable to any Loan made by an SPC shall be exercised only by the relevant Granting Lender and that each Granting Lender shall serve as the administrative agent and attorney-in-fact for its SPC and shall on behalf of its SPC receive any and all payments made for the benefit of such SPC and take all actions hereunder to the extent, if any, such SPC shall have any rights hereunder. In addition, notwithstanding anything to the contrary contained in this Agreement, any SPC ~~may (i)~~ may, with notice to, but without the prior written consent of, ~~BMCA and the Administrative Agent and with the payment of a processing fee of $500 and without paying~~ any ~~processing fee therefor~~other party hereto, assign all or ~~any~~ a portion of its interest in any ~~Term Loan Advance~~ Loans to the Granting Lender and (ii) disclose on a confidential basis any non-public information relating to its funding of Term Loan Advance to any rating agency, commercial paper dealer or provider of any surety or guarantee or credit or liquidity enhancement to such SPCLender. This ~~subsection (k)~~ Section may not be amended without the prior written consent of each Granting Lender, all or any part of whose ~~Term~~ Loan ~~Advances are~~ is being funded by ~~the~~ an SPC at the time of such amendment.

Appears in 1 contract

Samples: Credit Agreement (Toledo Edison Co)

Assignments and Participations. (a) Each Lender may, upon at least five Business Days’ notice to such Lender and the Administrative Agent, assign to one or more Eligible Assignees all or a portion of its rights and obligations under this Agreement (including all or a portion of its Term Loan Commitment, the Term Loan Advances owing to it and the Note or Notes held by it); provided, however, that (i~~) each such assignment shall be of a uniform, and not a varying, percentage of all rights and obligations under this Agreement, (ii~~) except in the case of an assignment to a Person that, immediately prior to such assignment, was a ~~Lender, an Affiliate of any~~ Lender or an ~~Approved Fund~~ affiliate of ~~any~~ a Lender or an assignment of all of a Lender’s 's rights and obligations under this Agreement, the ~~aggregate~~ amount of the ~~Term Loan Commitments or Term Loan~~ Advances of the assigning Lender being assigned ~~to such Eligible Assignee~~ pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than the lesser of (x) such Lender's Advances hereunder and (y) $5,000,000 or an integral multiple of $1,000,000 in excess thereof (~~or such lesser amount~~ except as ~~shall be approved~~ otherwise agreed by the Borrower and the Administrative ~~Agent and~~Agent), (ii) except in the case of an assignment to a Person that, ~~so long as no Default shall have occurred and be continuing at the time of effectiveness of~~ immediately prior to such assignment, ~~BMCA)~~was a Lender or an affiliate of a Lender, each such assignment shall be made only upon the prior written approval of the Borrower and the Administrative Agent, such approval not to be unreasonably withheld, (iii) each such assignment shall be to an Eligible Assignee, , (iv) ~~except in the case of an~~ each such assignment by a ~~Person that, immediately prior to such assignment, was a Lender, to one~~ Lender of its ~~Affiliates, no such assignments~~ Advances or Note shall be ~~permitted without~~ made in such manner so that the ~~consent~~ same portion of its Advances and Note is assigned to the Administrative Agent and, so long as no Default shall have occurred and be continuing at the time of effectiveness of such assignment, BMCA (in each case, which consents shall not be unreasonably withheld) and respective assignee, (v) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together with any Note or Notes subject to such assignment and a processing and recordation fee in the aggregate amount of $~~3,500.~~3,000, and (bvi) the assignee, if it shall not be a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in such Assignment and Acceptance, (ix) the assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, have the rights and obligations of a Lender hereunder and (iiy) the Lender assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights ~~(other than its rights under Sections 2.09, 2.11 and 8.04 to the extent any claim thereunder relates to an event arising prior to such assignment)~~ and be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all of or the remaining portion of an assigning Lender’s 's rights and obligations under this Agreement, such Lender shall cease to be a party hereto). (cb) By executing and delivering an Assignment and Acceptance, ~~each~~ the Lender assignor thereunder and ~~each~~ the assignee thereunder confirm to and agree with each other and the other parties ~~thereto and~~ hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with ~~any Loan Document~~ this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value ~~of, or the perfection or priority~~ of ~~any lien or security interest created or purported to be created under or in connection with, any Loan Document~~ this Agreement or any other instrument or document furnished pursuant ~~thereto~~hereto; (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any ~~Loan Party~~ Obligor or the performance or observance by ~~any Loan Party~~ the Obligors of any of ~~its~~ their respective obligations under ~~any Loan Document~~ this Agreement or any other instrument or document furnished pursuant ~~thereto~~hereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 4.01 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) such assignee will, independently and without reliance upon ~~any~~ the Administrative Agent, such assigning Lender or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) such assignee confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes ~~each~~ the Administrative Agent to take such action as agent on its behalf and to exercise such powers and discretion under ~~the Loan Documents~~ this Agreement as are delegated to ~~such~~ the Administrative Agent by the terms ~~hereof and thereof~~hereof, together with such powers and discretion as are reasonably incidental thereto; and (vii) such assignee agrees that it will perform in accordance with their terms all of the obligations that by the terms of this Agreement are required to be performed by it as a Lender. (dc) The Administrative ~~Agent~~ Agent, acting for this purpose ~~(but only for this purpose)~~ as ~~the~~ an agent of the ~~Borrowers~~Borrower, shall maintain at its address referred to in Section ~~8.02~~ 9.02 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 ~~Lenders and the Term Loan Commitment of~~Lenders, and principal amount of the ~~Term Loan~~ 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 ~~Borrowers~~Borrower, the ~~Agents~~ Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. No assignment shall be effective until it is recorded in the Register pursuant to this Section 9.07(c). The Register shall be available for inspection by the ~~Borrowers or any Agent~~ Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice. (e) Notwithstanding anything to the contrary contained in clause (b) above, the Term Loan Advances (including the Notes evidencing such Term Loan Advances) are registered obligations and the right, title, and interest of the Lenders and their assignees in and to such Term Loan Advances shall be transferable only upon notation of such transfer in the Register. A Note shall only evidence the Lender’s or an assignee’s right title and interest in and to the related Term Loan Advance, and in no event is any such Note to be considered a bearer instrument or obligation. This Section 8.07 shall be construed so that the Term Loan Advances are at all times maintained in “registered form” within the meaning of sections 163(f), 871(h)(2) and 881(c)(2) of the Internal Revenue Code and any related regulations (or any successor provisions of the Internal Revenue Code or such regulations). Solely for purposes of this and for tax purposes only, the Administrative Agent shall act as each Borrower’s agent for purposes of maintaining such notations of transfer in the Register. (fd) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee, together with any Note or Notes subject to such assignment, and the assignee's completed Administrative Questionnaire (unless the assignee shall already be a Lender hereunder), the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit C F hereto, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to ~~BMCA and each other Agent~~the Borrower. ~~In the case of any assignment by a Lender, within~~ Within five Business Days after its receipt of such notice, the ~~Borrowers~~Borrower, at ~~their~~ its own expense, ~~shall, if requested by the assignee,~~ shall execute and deliver to the Administrative Agent in exchange for the surrendered Note or Notes ~~an amended and restated~~ a new Note ~~(which shall be marked “Amended and Restated”)~~ or Notes to the order of such ~~Eligible Assignee~~ assignee in an amount equal to the ~~Term Loan Commitment assumed by~~ principal amount of Advances assigned to it ~~under each Facility~~ pursuant to such Assignment and Acceptance and, if ~~any~~ the assigning Lender has retained a ~~Term Loan Commitment hereunder under~~ portion of such ~~Facility and has requested~~ Facilities, a ~~replacement Note, an amended and restated~~ new Note or Notes to the order of ~~such~~ the assigning Lender in an amount equal to the ~~Term Loan Commitment~~ Advances so retained by it hereunder. Such ~~amended and restated~~ 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 Assignment and Acceptance and shall otherwise be in substantially the form of Exhibit ~~A hereto.~~A. (ge) Each Lender may sell participations ~~to one or more Persons (other than any Loan Party or any of its Affiliates)~~ in or to all or a portion of its rights ~~and~~ and/or obligations under this Agreement (~~including~~ including, without limitation, all or a portion of ~~its Term Loan Commitments,~~ the ~~Term Loan~~ Advances owing to it and the Note or Notes ~~(if any)~~ held by it); ~~provided, however,~~ provided that (i) such Lender’s 's obligations under this Agreement ~~(including its Term Loan Commitments)~~ -------- shall remain unchanged, (ii) 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, (iv) the ~~Borrowers~~Obligors, the ~~Agents~~ Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s 's rights and obligations under this Agreement and (v) no participant under any such participation shall have any right to approve any amendment or waiver of any provision of any ~~Loan~~ Basic Document, or any consent to any departure by any ~~Loan Party~~ Obligor therefrom, except to the extent that such amendment, waiver or consent ~~requires~~ would reduce the ~~consent~~ principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, postpone any date fixed for any payment of principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, or release all ~~Lenders~~or substantially all of the Collateral. (hf) Any Lender may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section ~~8.07~~9.07, disclose to the assignee or participant or proposed assignee or ~~participant~~ participant, any information relating to the ~~Borrowers~~ Borrower furnished to such Lender by or on behalf of the ~~Borrowers~~Borrower; ~~provided, however,~~ provided that, prior to any such disclosure, -------- the assignee or participant or proposed assignee or participant shall agree in writing to preserve the confidentiality of any Confidential Information received by it from such ~~Lender in accordance with the terms of Section 8.09~~Lender. (ig) Notwithstanding any other provision set forth in this Agreement, any Lender may at any time create a security interest in all or any portion of its rights under this Agreement (~~including~~ including, without limitation, the ~~Term Loan~~ 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 System. (jh) ~~Notwithstanding anything~~ Anything in this Section 9.07 to the contrary ~~contained herein~~notwithstanding, ~~any~~ each Lender ~~that is a fund that invests in bank loans may create a security interest in~~ shall be permitted to pledge all or any ~~portion~~ part of its right, title and interest in, to and under the ~~Term Loan~~ Advances ~~owing to it~~ and ~~the Note or~~ Notes held by it to ~~the~~ any trustee for the benefit of the holders of ~~obligations owed, or securities issued, by~~ such ~~fund as security for such obligations or~~ Lender's securities~~, provided, that unless and until such trustee actually becomes a Lender in compliance with the other provisions of this Section 8.07,~~ . (i) ~~no such pledge shall release~~ Anything in this Section 9.07 to the ~~pledging Lender from~~ contrary notwithstanding, neither Terra nor any of its ~~obligations under the Loan Documents~~ Subsidiaries or Affiliates may acquire (whether by assignment, participation or otherwise), and ~~(ii) such trustee~~ no Lender shall ~~not be entitled~~ assign or participate to ~~exercise~~ Terra or any of ~~the rights of a Lender under the Loan Documents even though such trustee may have acquired ownership rights with respect to the pledged interest through foreclosure~~ its Subsidiaries or ~~otherwise. (k) Notwithstanding anything to the contrary contained herein~~Affiliates, any ~~Lender (a “Granting~~ interest in any Advance or other amount owing hereunder without the prior consent of each Lender”) may grant to a special purpose funding vehicle identified as such in writing from time to time by the Granting Lender to the Administrative Agent and BMCA (an “SPC”) the option to provide all or any part of any Term Loan Advance that such Granting Lender would otherwise be obligated to make pursuant to this Agreement, ; provided that ~~(i) nothing herein shall constitute a commitment by any SPC to fund any Term Loan Advance,~~ the Lenders may assign all of their interests in the -------- Advances and ~~(ii) if an SPC elects not to exercise~~ such ~~option or otherwise fails to make all or any part of such Term Loan Advance, the Granting Lender shall be obligated to make such Term Loan Advance~~ other amounts pursuant to the ~~terms hereof. The making of an Advance by an SPC hereunder shall utilize the Term~~ Loan Commitment of the Granting Lender to the same extent, and as if, such Term Loan Advance were made by such Granting Lender. Each party hereto hereby agrees that (i) no SPC shall be liable for any indemnity or similar payment obligation under this Agreement for which a Lender would be liable, (ii) no SPC shall be entitled to the benefits of Sections 2.09 and 2.11 (or any other increased costs protection provision) and (iii) the Granting Bank shall for all purposes, including the approval of any amendment or waiver of any provision of any Loan Document, remain the Lender of record hereunder. In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Purchase Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior Debt of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency, or liquidation proceeding under the laws of the United States or any State thereof. Notwithstanding anything to the contrary contained in this Agreement, any SPC may (i) with notice to, but without prior consent of, BMCA and the Administrative Agent and with the payment of a processing fee of $500 and without paying any processing fee therefor, assign all or any portion of its interest in any Term Loan Advance to the Granting Lender and (ii) disclose on a confidential basis any non-public information relating to its funding of Term Loan Advance to any rating agency, commercial paper dealer or provider of any surety or guarantee or credit or liquidity enhancement to such SPC. This subsection (k) may not be amended without the prior written consent of each Granting Lender, all or any part of whose Term Loan Advances are being funded by the SPC at the time of such amendment.

Appears in 1 contract

Samples: Credit Agreement (Terra Industries Inc)

Assignments and Participations. (a) Each Lender may, with the consent (except as provided below), not to be unreasonably withheld, of the Administrative Agent and, prior to the occurrence and continuance of a Default, the Borrower, and, each Lender if demanded by the Borrower (following a demand by such Lender pursuant to Section 2.11 or 2.14) upon at least ~~five~~ 5 Business Days’ ' notice to such Lender and the Administrative Agent, will, with the consent of the Administrative Agent, not to be unreasonably withheld, and only if no Default has occurred and is continuing, assign to one or more ~~Eligible Assignees~~ Persons all or a portion of its rights and obligations under this Agreement (~~including~~ including, without limitation, all or a portion of its ~~Term Loan~~ Revolving Credit Commitment, the ~~Term Loan~~ Revolving Credit Advances owing to it and the Revolving Credit Note or Notes held by it); provided, however, that (i) each such assignment shall be of a ~~uniform~~constant, and not a varying, percentage of all rights and obligations under ~~this Agreement~~and in respect of all the Facilities (other than any right to make Competitive Bid Advances, Competitive Bid Advances owing to it and Competitive Bid Notes), (ii) except in the case of an assignment to a Person that, immediately prior to such assignment, was a ~~Lender, an Affiliate of any Lender or an Approved Fund of any~~ Lender or an assignment of all of a Lender’s 's rights and obligations under this Agreement, the ~~aggregate~~ amount of the ~~Term Loan Commitments or Term Loan Advances~~ Revolving Credit Commitment of the assigning Lender being assigned ~~to such Eligible Assignee~~ pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $~~5,000,000 (~~3,000,000 or ~~such lesser amount as shall be approved by the Administrative Agent and, so long as no Default shall have occurred and be continuing at the time~~ an integral multiple of ~~effectiveness of such assignment, BMCA)~~$500,000 in excess thereof, (iii) each such assignment shall be to an Eligible Assignee, and (iv) ~~except in~~ each such assignment made as a result of a demand by the ~~case of an assignment by a Person that, immediately prior~~ Borrower pursuant to ~~such assignment, was a Lender, to one of its Affiliates, no such assignments~~ this Section 8.07(a) shall be ~~permitted without the consent of~~ arranged by the Administrative Agent ~~and~~after consultation with the Borrower and shall be either an assignment of all of the rights and obligations of the assigning Lender under this Agreement or an assignment of a portion of such rights and obligations made concurrently with another such assignment or other such assignments that together cover all of the rights and obligations of the assigning Lender under this Agreement, ~~so long~~ (vi) no Lender shall be obligated to make any such assignment as ~~no Default~~ a result of a demand by the Borrower pursuant to this Section 8.07(a) unless and until such Lender shall have ~~occurred and be continuing~~ received one or more payments from either the Borrower or one or more Eligible Assignees in an aggregate amount at least equal to the ~~time~~ aggregate outstanding principal amount of ~~effectiveness~~ the Advances owing to such Lender, together with accrued interest thereon to the date of payment of such ~~assignment, BMCA (in each case, which consents shall not be unreasonably withheld)~~ principal amount and all other amounts payable to such Lender under this Agreement and (vvii) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together with any Revolving Credit Note ~~or Notes~~ subject to such assignment and a processing and recordation fee of $~~3,500~~3,000, except that such fee is not payable if the assignee is an existing Lender and is replacing the assigning Lender at the demand of the Borrower. Each Lender may, without the consent of, but upon notice to, the Administrative Agent and the Borrower, assign all or a portion of its rights and obligations under this Agreement to any of its Affiliates. (b) ~~Upon such execution~~The Issuing Bank may assign to one Lender or Affiliate of a Lender all of its rights and obligations under the undrawn portion of its Letter of Credit Commitment at any time; provided, ~~delivery~~however, ~~acceptance and recording, from and after the effective date specified in such Assignment and Acceptance,~~ that (i) ~~the assignee thereunder~~ each such assignment shall be ~~a party hereto and,~~ to ~~the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, have the rights and obligations of a Lender hereunder~~ an Eligible Assignee and (ii) the ~~Lender assignor thereunder shall,~~ parties to each such assignment shall execute and deliver to the ~~extent that rights~~ Administrative Agent, for its acceptance and ~~obligations hereunder have been assigned by it pursuant to such~~ recording in the Register, an Assignment and Acceptance, ~~relinquish its rights (other than its rights under Sections 2.09, 2.11~~ together with a processing and ~~8.04 to the extent any claim thereunder relates to an event arising prior to such assignment) and be released from its obligations under this Agreement (and, in the case~~ recordation fee of ~~an Assignment and Acceptance covering all of the remaining portion of an assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto)~~$3,000. (c) By executing and delivering an Assignment and Acceptance, ~~each~~ the Lender or the Issuing Bank assignor thereunder (the "Assigning Lender") and ~~each~~ the assignee thereunder confirm to and agree with each other and the other parties ~~thereto and~~ hereto as follows: (i) other than as provided in such Assignment and Acceptance, such ~~assigning~~ Assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or any other Loan Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value ~~of,~~ of this Agreement or ~~the perfection or priority of~~ any ~~lien or security interest created or purported to be created under or in connection with, any~~ other Loan Document or any other instrument or document furnished pursuant ~~thereto~~hereto; (ii) such ~~assigning~~ Assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of ~~any~~ either Loan Party or the performance or observance by ~~any~~ either Loan Party of any of its respective obligations under any Loan Document or any other instrument or document furnished pursuant ~~thereto~~hereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 4.01 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) such assignee will, independently and without reliance upon ~~any~~ the Administrative Agent, such assigning Lender or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) such assignee confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes ~~each~~ the Administrative Agent to take such action as agent on its behalf and to exercise such powers and discretion under the Loan Documents as are delegated to ~~such~~ the Administrative Agent by the terms ~~hereof and~~ thereof, together with such powers and discretion as are reasonably incidental thereto; and (vii) such assignee agrees that it will perform in accordance with their terms all of the obligations that by the terms of this Agreement are required to be performed by it as a ~~Lender~~Lender or Issuing Bank, as the case may be. (d) The Administrative Agent acting for this purpose (but only for this purpose) as the agent of the Borrowers, shall maintain at its address referred to in Section 8.02 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 Lenders and the Term Loan Commitment of, and principal amount of the Term Loan Advances 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 Borrowers, the Agents and the Lenders shall treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrowers or any Agent or any Lender at any reasonable time and from time to time upon reasonable prior notice. (e) Notwithstanding anything to the contrary contained in clause (b) above, the Term Loan Advances (including the Notes evidencing such Term Loan Advances) are registered obligations and the right, title, and interest of the Lenders and their assignees in and to such Term Loan Advances shall be transferable only upon notation of such transfer in the Register. A Note shall only evidence the Lender’s or an assignee’s right title and interest in and to the related Term Loan Advance, and in no event is any such Note to be considered a bearer instrument or obligation. This Section 8.07 shall be construed so that the Term Loan Advances are at all times maintained in “registered form” within the meaning of sections 163(f), 871(h)(2) and 881(c)(2) of the Internal Revenue Code and any related regulations (or any successor provisions of the Internal Revenue Code or such regulations). Solely for purposes of this and for tax purposes only, the Administrative Agent shall act as each Borrower’s agent for purposes of maintaining such notations of transfer in the Register. (f) Upon its receipt of an Assignment and Acceptance executed by an ~~assigning~~ Assigning Lender and an ~~assignee~~assignee representing that it is an Eligible Assignee, together with any Revolving Credit Note or Notes subject to such assignment, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit C hereto, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to ~~BMCA and each other Agent~~the Borrower. ~~In the case of any assignment by a Lender, within~~ Within five Business Days after its receipt of such notice, the ~~Borrowers~~Borrower, at ~~their~~ its own expense, ~~shall, if requested by the assignee,~~ shall execute and deliver to the Administrative Agent in exchange for the surrendered Revolving Credit Note ~~or Notes an amended and restated~~ a new Revolving Credit Note ~~(which shall be marked “Amended and Restated”)~~ to the order of such Eligible Assignee in an amount equal to the ~~Term Loan~~ Revolving Credit Commitment assumed by it ~~under each Facility~~ pursuant to such Assignment and Acceptance and, if ~~any assigning~~ the Assigning Lender has retained a ~~Term Loan~~ Revolving Credit Commitment ~~hereunder under such Facility and has requested~~ hereunder, a ~~replacement Note, an amended and restated~~ new Revolving Credit Note to the order of ~~such assigning~~ the Assigning Lender in an amount equal to the ~~Term Loan~~ Revolving Credit Commitment retained by it hereunder. Such ~~amended and restated~~ new Revolving Credit Note or Notes shall be in an aggregate principal amount equal to the aggregate principal amount of such surrendered Revolving Credit Note or Notes, shall be dated the effective date of such Assignment and Acceptance and shall otherwise be in substantially the form of Exhibit A A-1 hereto. (e) The Administrative Agent shall maintain at its address referred to in Section 8.02 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 Lenders and the Issuing Bank and the Commitment of, and principal amount of the Advances owing to, each Lender and the Issuing Bank 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 Administrative Agent, the Lenders and the Issuing Bank, may treat each Person whose name is recorded in the Register as a Lender or the Issuing Bank, as the case may be, hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower, any Lender or the Issuing Bank at any reasonable time and from time to time upon reasonable prior notice. (f) Upon such execution, delivery, acceptance and recording, from and after the effective date specified in such Assignment and Acceptance, (x) the assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, have the rights and obligations of a Lender or the Issuing Bank, as the case may be, hereunder and (y) the Assigning Lender thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering the Issuing Bank's or all or the remaining portion of an assigning Lender's rights and obligations under this Agreement, such Lender or the Issuing Bank shall cease to be a party hereto). (g) Each Lender may sell participations to one or more ~~Persons~~ banks or other entities (other than ~~any~~ either Loan Party or any of its Affiliates) in or to all or a portion of its rights and obligations under this Agreement (~~including~~ including, without limitation, all or a portion of its ~~Term Loan Commitments~~Revolving Credit Commitment, the ~~Term Loan~~ Revolving Credit Advances owing to it and the Revolving Credit Note or Notes ~~(if any)~~ held by it); provided, however, that (i) such Lender’s 's obligations under this Agreement (~~including~~ including, without limitation, its ~~Term Loan Commitments~~Revolving Credit Commitment to the Borrower hereunder) shall remain unchanged, (ii) 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, (iv) the ~~Borrowers~~Borrower, the ~~Agents and~~ Administrative Agent, the other Lenders and the Issuing Bank shall continue to deal solely and directly with such Lender in connection with such Lender’s 's rights and obligations under ~~this Agreement~~ the Loan Documents and (v) no participant under any such participation shall have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by ~~any~~ either Loan Party therefrom, except to the extent that such amendment, waiver or consent ~~requires~~ would reduce the ~~consent~~ principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, or postpone any date fixed for any payment of ~~all Lenders~~principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation. (h) Any Lender or the Issuing Bank may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section 8.07, disclose to the assignee or participant or proposed assignee or ~~participant~~ participant, any information relating to the ~~Borrowers~~ Borrower furnished to such Lender or the Issuing Bank by or on behalf of the ~~Borrowers~~Borrower; ~~provided, however,~~ 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 Borrower received by it from such Lender ~~in accordance with~~ or the ~~terms of Section 8.09~~Issuing Bank. (i) Notwithstanding any other provision set forth in this Agreement, any Lender or the Issuing Bank may at any time create a security interest in all or any portion of its rights under this Agreement (~~including~~ including, without limitation, the ~~Term Loan~~ 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 System. (j) Notwithstanding anything to the contrary contained herein, any Lender that is a fund that invests in bank loans may create a security interest in all or any portion of the Term Loan Advances owing to it and the Note or Notes held by it to the trustee for holders of obligations owed, or securities issued, by such fund as security for such obligations or securities, provided, that unless and until such trustee actually becomes a Lender in compliance with the other provisions of this Section 8.07, (i) no such pledge shall release the pledging Lender from any of its obligations under the Loan Documents and (ii) such trustee shall not be entitled to exercise any of the rights of a Lender under the Loan Documents even though such trustee may have acquired ownership rights with respect to the pledged interest through foreclosure or otherwise. (k) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Lender”) may grant to a special purpose funding vehicle identified as such in writing from time to time by the Granting Lender to the Administrative Agent and BMCA (an “SPC”) the option to provide all or any part of any Term Loan Advance that such Granting Lender would otherwise be obligated to make pursuant to this Agreement, provided that (i) nothing herein shall constitute a commitment by any SPC to fund any Term Loan Advance, and (ii) if an SPC elects not to exercise such option or otherwise fails to make all or any part of such Term Loan Advance, the Granting Lender shall be obligated to make such Term Loan Advance pursuant to the terms hereof. The making of an Advance by an SPC hereunder shall utilize the Term Loan Commitment of the Granting Lender to the same extent, and as if, such Term Loan Advance were made by such Granting Lender. Each party hereto hereby agrees that (i) no SPC shall be liable for any indemnity or similar payment obligation under this Agreement for which a Lender would be liable, (ii) no SPC shall be entitled to the benefits of Sections 2.09 and 2.11 (or any other increased costs protection provision) and (iii) the Granting Bank shall for all purposes, including the approval of any amendment or waiver of any provision of any Loan Document, remain the Lender of record hereunder. In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior Debt of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency, or liquidation proceeding under the laws of the United States or any State thereof. Notwithstanding anything to the contrary contained in this Agreement, any SPC may (i) with notice to, but without prior consent of, BMCA and the Administrative Agent and with the payment of a processing fee of $500 and without paying any processing fee therefor, assign all or any portion of its interest in any Term Loan Advance to the Granting Lender and (ii) disclose on a confidential basis any non-public information relating to its funding of Term Loan Advance to any rating agency, commercial paper dealer or provider of any surety or guarantee or credit or liquidity enhancement to such SPC. This subsection (k) may not be amended without the prior written consent of each Granting Lender, all or any part of whose Term Loan Advances are being funded by the SPC at the time of such amendment.

Appears in 1 contract

Samples: Credit Agreement (Maxtor Corp)

Assignments and Participations. (a) Each Lender ~~may~~may and, if demanded by the Account Party (following a demand by such Lender pursuant to Section 2.10 or 2.12) or by Wachovia or the Account Party in accordance with Section 2.02(k) upon at least five Business Days’ ' notice to such Lender and the ~~Administrative~~ Agent, will assign to one or more Eligible Assignees all or a portion of its rights and obligations under this Agreement (~~including~~ including, without limitation, all or a portion of its ~~Term Loan~~ Commitment, its Unused Commitment, the ~~Term Loan Advances~~ Reimbursement Obligations owing to it it, and ~~the Note~~ its participations or ~~Notes held by it~~position in Letters of Credit); provided, however, that (i) each such assignment shall be of a ~~uniform~~constant, and not a varying, percentage of all rights and obligations under this ~~Agreement~~Agreement related to the Commitments assigned thereby, (ii) except in the case of an assignment to ~~a Person~~ an Eligible Assignee that, immediately prior to such assignment, was a ~~Lender, an Affiliate of any Lender or an Approved Fund of any~~ Lender or an assignment of all of a Lender’s 's rights and obligations under this Agreement, the ~~aggregate~~ amount of the ~~Term Loan Commitments~~ Commitment or ~~Term Loan Advances~~ Unused Commitment of the assigning Lender being assigned ~~to such Eligible Assignee~~ pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than an aggregate amount of $5,000,000 ~~(or such lesser amount as shall be approved by the Administrative Agent and, so long as no Default shall have occurred~~ and ~~be continuing at the time~~ increments of ~~effectiveness of such assignment, BMCA)~~$1,000,000 in excess thereof, (iii) each such assignment shall be to an Eligible Assignee, (iv) ~~except in~~ each such assignment made as a result of a demand by the ~~case of~~ Account Party pursuant to this Section 9.07(a) shall be arranged by the Account Party after consultation with the Agent and shall be either an assignment of all of the rights and obligations of the assigning Lender under this Agreement or an assignment of a portion of such rights and obligations made concurrently with another such assignment or other such assignments that together cover all of the rights and obligations of the assigning Lender under this Agreement, (v) no Lender shall be obligated to make any such assignment as a result of a demand by ~~a Person that, immediately prior~~ the Account Party pursuant to this Section 9.07(a) unless and until such Lender shall have received one or more payments from either the Account Party or one or more Eligible Assignees in an aggregate amount at least equal to the aggregate outstanding principal amount of the Reimbursement Obligations owing to such ~~assignment, was a~~ Lender, together with accrued interest thereon to ~~one~~ the date of ~~its Affiliates, no such assignments shall be permitted without the consent of the Administrative Agent and, so long as no Default shall have occurred and be continuing at the time of effectiveness~~ payment of such ~~assignment~~principal amount and all other amounts payable to such Lender under this Agreement, ~~BMCA~~ (~~in each case, which consents shall not be unreasonably withheld) and (v~~vi) the parties to each such assignment shall execute and deliver to the ~~Administrative~~ Agent, for its acceptance and recording in the Register, an Assignment and ~~Acceptance, together with any Note or Notes subject to such assignment~~ Acceptance and a processing and recordation fee of $~~3,500.~~ 3,500 payable by the parties to each such assignment, provided further, however, that in the case of each assignment made as a result of a demand by the Account Party, such recordation fee shall be payable by the Account Party except that no such recordation fee shall be payable in the case of an assignment made at the request of the Account Party to an Eligible Assignee that is an existing Lender, and (bvii) each assignment of Unused Commitment shall be subject to the approval of the Account Party, such approval not be unreasonably withheld or delayed, PROVIDED FURTHER, HOWEVER, THAT NO LENDER MAY ASSIGN ANY OBLIGATION UNDER A SYNDICATED LETTER OF CREDIT UNLESS AN AMENDMENT, MODIFICATION OR SUPPLEMENT TO SUCH SYNDICATED LETTER OF CREDIT APPROVED BY THE BENEFICIARY AND THE AGENT IS CONCURRENTLY DELIVERED TO THE AGENT REMOVING OR ADJUSTING, AS THE CASE MAY BE, THE ASSIGNOR'S SYNDICATED COMMITMENT AND SYNDICATED REIMBURSEMENT OBLIGATION AND REPLACING OR ADJUSTING THE SAME WITH A SYNDICATED COMMITMENT (AND SYNDICATED REIMBURSEMENT OBLIGATION OF) THE ASSIGNEE. Each Lender may assign to any Federal Reserve Bank as security, all or a portion of its rights and obligations under this Agreement (including, without limitation, all or a portion of its Commitment, its Unused Commitment, the Reimbursement Obligations owing to it, and its participations in Letters of Credit) without the consent of the Account Party or the Agent. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in ~~such~~ each Assignment and Acceptance, (ix) the assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, have the rights and obligations of a Lender hereunder and (iiy) the Lender assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (other than its rights under Sections ~~2.09~~2.10, ~~2.11~~ 2.12 and ~~8.04~~ 9.04 to the extent any claim thereunder relates to an event arising prior to such assignment) and be released from its obligations (other than its obligations under Section 8.05 to the extent any claim thereunder relates to an event arising prior such assignment) under this Agreement (and, in the case of an Assignment and Acceptance covering all of or the remaining portion of an assigning Lender’s 's rights and obligations under this Agreement, such Lender shall cease to be a party hereto). (cb) By executing and delivering an Assignment and Acceptance, ~~each~~ the Lender assignor thereunder and ~~each~~ the assignee thereunder confirm to and agree with each other and the other parties ~~thereto and~~ hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with ~~any Loan Document~~ this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of, or the perfection or priority of any lien or security interest created or purported to be created under or in connection with, ~~any Loan Document~~ this Agreement or any other instrument or document furnished pursuant ~~thereto~~hereto; (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of ~~any Loan~~ the Account Party of the Guarantor or the performance or observance by ~~any Loan~~ the Account Party or the Guarantor of any of its obligations under ~~any Loan Document~~ this Agreement or any other instrument or document furnished pursuant thereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 4.01 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) such assignee will, independently and without reliance upon any Agent, such assigning Lender or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) such assignee confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes each Agent to take such action as agent on its behalf and to exercise such powers and discretion under the Loan Documents as are delegated to such Agent by the terms hereof and thereof, together with such powers and discretion as are reasonably incidental thereto; and (vii) such assignee agrees that it will perform in accordance with their terms all of the obligations that by the terms of this Agreement are required to be performed by it as a Lender. (d) The Administrative Agent acting for this purpose (but only for this purpose) as the agent of the Borrowers, shall maintain at its address referred to in Section 8.02 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 Lenders and the Term Loan Commitment of, and principal amount of the Term Loan Advances 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 Borrowers, the Agents and the Lenders shall treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrowers or any Agent or any Lender at any reasonable time and from time to time upon reasonable prior notice. (e) Notwithstanding anything to the contrary contained in clause (b) above, the Term Loan Advances (including the Notes evidencing such Term Loan Advances) are registered obligations and the right, title, and interest of the Lenders and their assignees in and to such Term Loan Advances shall be transferable only upon notation of such transfer in the Register. A Note shall only evidence the Lender’s or an assignee’s right title and interest in and to the related Term Loan Advance, and in no event is any such Note to be considered a bearer instrument or obligation. This Section 8.07 shall be construed so that the Term Loan Advances are at all times maintained in “registered form” within the meaning of sections 163(f), 871(h)(2) and 881(c)(2) of the Internal Revenue Code and any related regulations (or any successor provisions of the Internal Revenue Code or such regulations). Solely for purposes of this and for tax purposes only, the Administrative Agent shall act as each Borrower’s agent for purposes of maintaining such notations of transfer in the Register. (f) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee, together with any Note or Notes subject to such assignment, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit C hereto, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to BMCA and each other Agent. In the case of any assignment by a Lender, within five Business Days after its receipt of such notice, the Borrowers, at their own expense, shall, if requested by the assignee, execute and deliver to the Administrative Agent in exchange for the surrendered Note or Notes an amended and restated Note (which shall be marked “Amended and Restated”) to the order of such Eligible Assignee in an amount equal to the Term Loan Commitment assumed by it under each Facility pursuant to such Assignment and Acceptance and, if any assigning Lender has retained a Term Loan Commitment hereunder under such Facility and has requested a replacement Note, an amended and restated Note to the order of such assigning Lender in an amount equal to the Term Loan Commitment retained by it hereunder. Such amended and restated 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 Assignment and Acceptance and shall otherwise be in substantially the form of Exhibit A hereto. (g) Each Lender may sell participations to one or more Persons (other than any Loan Party or any of its Affiliates) in or to all or a portion of its rights and obligations under this Agreement (including all or a portion of its Term Loan Commitments, the Term Loan Advances owing to it and the Note or Notes (if any) held by it); provided, however, that (i) such Lender’s obligations under this Agreement (including its Term Loan Commitments) shall remain unchanged, (ii) 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, (iv) the Borrowers, the Agents and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and (v) no participant under any such participation shall have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent requires the consent of all Lenders. (h) Any Lender may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section 8.07, disclose to the assignee or participant or proposed assignee or participant any information relating to the Borrowers furnished to such Lender by or on behalf of the Borrowers; provided, however, 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 received by it from such Lender in accordance with the terms of Section 8.09. (i) Notwithstanding any other provision set forth in this Agreement, any Lender may at any time create a security interest in all or any portion of its rights under this Agreement (including the Term Loan 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 System. (j) Notwithstanding anything to the contrary contained herein, any Lender that is a fund that invests in bank loans may create a security interest in all or any portion of the Term Loan Advances owing to it and the Note or Notes held by it to the trustee for holders of obligations owed, or securities issued, by such fund as security for such obligations or securities, provided, that unless and until such trustee actually becomes a Lender in compliance with the other provisions of this Section 8.07, (i) no such pledge shall release the pledging Lender from any of its obligations under the Loan Documents and (ii) such trustee shall not be entitled to exercise any of the rights of a Lender under the Loan Documents even though such trustee may have acquired ownership rights with respect to the pledged interest through foreclosure or otherwise. (k) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Lender”) may grant to a special purpose funding vehicle identified as such in writing from time to time by the Granting Lender to the Administrative Agent and BMCA (an “SPC”) the option to provide all or any part of any Term Loan Advance that such Granting Lender would otherwise be obligated to make pursuant to this Agreement, provided that (i) nothing herein shall constitute a commitment by any SPC to fund any Term Loan Advance, and (ii) if an SPC elects not to exercise such option or otherwise fails to make all or any part of such Term Loan Advance, the Granting Lender shall be obligated to make such Term Loan Advance pursuant to the terms hereof. The making of an Advance by an SPC hereunder shall utilize the Term Loan Commitment of the Granting Lender to the same extent, and as if, such Term Loan Advance were made by such Granting Lender. Each party hereto hereby agrees that (i) no SPC shall be liable for any indemnity or similar payment obligation under this Agreement for which a Lender would be liable, (ii) no SPC shall be entitled to the benefits of Sections 2.09 and 2.11 (or any other increased costs protection provision) and (iii) the Granting Bank shall for all purposes, including the approval of any amendment or waiver of any provision of any Loan Document, remain the Lender of record hereunder. In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior Debt of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency, or liquidation proceeding under the laws of the United States or any State thereof. Notwithstanding anything to the contrary contained in this Agreement, any SPC may (i) with notice to, but without prior consent of, BMCA and the Administrative Agent and with the payment of a processing fee of $500 and without paying any processing fee therefor, assign all or any portion of its interest in any Term Loan Advance to the Granting Lender and (ii) disclose on a confidential basis any non-public information relating to its funding of Term Loan Advance to any rating agency, commercial paper dealer or provider of any surety or guarantee or credit or liquidity enhancement to such SPC. This subsection (k) may not be amended without the prior written consent of each Granting Lender, all or any part of whose Term Loan Advances are being funded by the SPC at the time of such amendment.;

Appears in 1 contract

Samples: Letter of Credit and Reimbursement Agreement (Metlife Inc)

Assignments and Participations. (a) Each Lender ~~may~~may ------------------------------ and, if demanded by a Borrower (following a demand by such Lender pursuant to Section 2.07 or 2.10) upon at least five Business Days’ ' notice to such Lender and the ~~Administrative Agent~~Agent and so long as no Default or Event of Default shall have occurred and be continuing, will assign to one or more ~~Eligible Assignees~~ Persons all or a portion of its rights and obligations under this Agreement (~~including~~ including, without limitation, all or a portion of its ~~Term Loan~~ Commitment, the ~~Term Loan~~ Advances owing to it and the Note or Notes held by it); provided, however, that (i) other -------- ------- than in the case of an assignment to an Affiliate of a Lender, another Lender or an assignment of the type described in subsection (g) below, such Lender shall have obtained the prior written consent of the Agent and, so long as no Default shall have occurred and be continuing, ADL, in each case, such consent not to be unreasonably withheld, (ii) each such assignment shall be of a ~~uniform~~constant, and not a varying, percentage of all rights and obligations under this Agreement, (iiiii) except in the case of an assignment to a Person that, immediately prior to such assignment, was a ~~Lender, an Affiliate of any Lender or an Approved Fund of any~~ Lender or an assignment of all of a Lender’s 's rights and obligations under this Agreement, the ~~aggregate~~ amount of the ~~Term Loan Commitments or Term Loan Advances~~ Commitment of the assigning Lender being assigned ~~to such Eligible Assignee~~ pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $~~5,000,000 (~~3,000,000 or ~~such lesser amount as shall be approved by the Administrative Agent and, so long as no Default shall have occurred and be continuing at the time~~ an integral multiple of ~~effectiveness of such assignment, BMCA)~~$500,000 in excess thereof, (~~iii~~iv) each such assignment shall be to an Eligible Assignee, (ivv) ~~except in~~ each such assignment made as a result of a demand by a Borrower pursuant to this Section 9.07(a) hereof shall be arranged by such Borrower after consultation with the ~~case of~~ Agent (and each proposed assignee shall be acceptable to the Agent) and shall be either an assignment of all of the rights and obligations of the assigning Lender under this Agreement or an assignment of a portion of such rights and obligations made concurrently with another such assignment or other such assignments that together cover all of the rights and obligations of the assigning Lender under this Agreement, (vi) no Lender shall be obligated to make any such assignment as a result of a demand by a ~~Person that, immediately prior~~ Borrower pursuant to this Section 9.07(a) unless and until such Lender shall have received one or more payments from either such Borrower or one or more Eligible Assignees in an aggregate amount at least equal to the aggregate outstanding principal amount of the Advances owing to such ~~assignment, was a~~ Lender, together with accrued interest thereon to ~~one~~ the date of ~~its Affiliates, no such assignments shall be permitted without the consent of the Administrative Agent and, so long as no Default shall have occurred and be continuing at the time of effectiveness~~ payment of such ~~assignment~~principal amount and all other amounts payable to such Lender under this Agreement, ~~BMCA (in each case, which consents shall not be unreasonably withheld)~~ and (vvii) the parties to each such assignment shall execute and deliver to the ~~Administrative~~ Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together with any Note ~~or Notes~~ subject to such assignment and a processing and recordation fee of $~~3,500. (b)~~ 3,000; provided that in -------- connection with any assignment demanded by a Borrower, such recordation fee shall be paid by such Borrower. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in ~~such~~ each Assignment and Acceptance, (ix) the assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, have the rights and obligations of a Lender hereunder and (iiy) the Lender assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights ~~(other than its rights under Sections 2.09, 2.11 and 8.04 to the extent any claim thereunder relates to an event arising prior to such assignment)~~ and be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all of or the remaining portion of an assigning Lender’s 's rights and obligations under this Agreement, such Lender shall cease to be a party hereto). (cb) By executing and delivering an Assignment and Acceptance, ~~each~~ the Lender assignor thereunder and ~~each~~ the assignee thereunder confirm to and agree with each other and the other parties ~~thereto and~~ hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with ~~any Loan Document~~ this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value ~~of, or the perfection or priority~~ of ~~any lien or security interest created or purported to be created under or in connection with, any Loan Document~~ this Agreement or any other instrument or document furnished pursuant ~~thereto~~hereto; (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of ~~any Loan Party~~ the Borrowers or the performance or observance by ~~any Loan Party~~ the Borrowers of any of ~~its~~ their respective obligations under ~~any Loan Document~~ this Agreement or any other instrument or document furnished pursuant ~~thereto~~hereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 4.01 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) such assignee will, independently and without reliance upon ~~any~~ the Agent, such assigning Lender or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) such assignee confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes ~~each~~ the Agent to take such action as agent on its behalf and to exercise such powers and discretion under ~~the Loan Documents~~ this Agreement as are delegated to ~~such~~ the Agent by the terms ~~hereof and thereof~~hereof, together with such powers and discretion as are reasonably incidental thereto; and (vii) such assignee agrees that it will perform in accordance with their terms all of the obligations that by the terms of this Agreement are required to be performed by it as a Lender. (dc) The ~~Administrative~~ Agent ~~acting for this purpose (but only for this purpose) as the agent of the Borrowers,~~ shall maintain at its address referred to in Section ~~8.02~~ 9.02 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 Lenders and the ~~Term Loan~~ Commitment of, and principal amount of the ~~Term Loan~~ 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 Borrowers, the ~~Agents~~ Agent and the Lenders ~~shall~~ 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 ~~Agent or any~~ Lender at any reasonable time and from time to time upon reasonable prior notice. (e) Notwithstanding anything to the contrary contained in clause (b) above, the Term Loan Advances (including the Notes evidencing such Term Loan Advances) are registered obligations and the right, title, and interest of the Lenders and their assignees in and to such Term Loan Advances shall be transferable only upon notation of such transfer in the Register. A Note shall only evidence the Lender’s or an assignee’s right title and interest in and to the related Term Loan Advance, and in no event is any such Note to be considered a bearer instrument or obligation. This Section 8.07 shall be construed so that the Term Loan Advances are at all times maintained in “registered form” within the meaning of sections 163(f), 871(h)(2) and 881(c)(2) of the Internal Revenue Code and any related regulations (or any successor provisions of the Internal Revenue Code or such regulations). Solely for purposes of this and for tax purposes only, the Administrative Agent shall act as each Borrower’s agent for purposes of maintaining such notations of transfer in the Register. (fd) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an ~~assignee~~assignee representing that it is an Eligible Assignee, together with any Note or Notes subject to such assignment, the ~~Administrative~~ Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit C B hereto, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to ~~BMCA and each other Agent~~the Borrowers. ~~In the case of any assignment by a Lender, within~~ Within five Business Days after its receipt of such notice, the Borrowers, at their own expense, ~~shall, if requested by the assignee,~~ shall execute and deliver to the ~~Administrative~~ Agent in exchange for the surrendered Note ~~or Notes an amended and restated~~ a new Note ~~(which shall be marked “Amended and Restated”)~~ to the order of such Eligible Assignee in an amount equal to the ~~Term Loan~~ Commitment assumed by it ~~under each Facility~~ pursuant to such Assignment and Acceptance and, if ~~any~~ the assigning Lender has retained a ~~Term Loan~~ Commitment ~~hereunder under such Facility and has requested~~ hereunder, a ~~replacement Note, an amended and restated~~ new Note to the order of ~~such~~ the assigning Lender in an amount equal to the ~~Term Loan~~ Commitment retained by it hereunder. Such ~~amended and restated~~ 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 Assignment and Acceptance and shall otherwise be in substantially the form of Exhibit A hereto. (ge) Each Lender may sell participations to one or more ~~Persons~~ banks or other entities (other than ~~any Loan Party~~ the Borrowers or any of ~~its~~ their Affiliates) in or to all or a portion of its rights and obligations under this Agreement (~~including~~ including, without limitation, all or a portion of its ~~Term Loan Commitments~~Commitment, the ~~Term Loan~~ Advances owing to it and the Note or Notes ~~(if any)~~ held by it); provided, however, that (i) such Lender’s 's obligations under this Agreement -------- ------- (~~including~~ including, without limitation, its ~~Term Loan Commitments~~Commitment hereunder) shall remain unchanged, (ii) 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, (iv) the Borrowers, the ~~Agents~~ Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s 's rights and obligations under this Agreement and (v) no participant under any such participation shall have any right to approve any amendment or waiver of any provision of this Agreement or any ~~Loan Document~~Note, or any consent to any departure by ~~any Loan Party~~ the Borrowers therefrom, except to the extent that such amendment, waiver or consent ~~requires~~ would reduce the ~~consent~~ principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, or postpone any date fixed for any payment of ~~all Lenders~~principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation. (hf) Any Lender may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section ~~8.07~~9.07, disclose to the assignee or participant or proposed assignee or ~~participant~~ participant, any information relating to the Borrowers furnished to such Lender by or on behalf of the Borrowers; ~~provided, however,~~ 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 Borrowers received by it from such ~~Lender in accordance with the terms of Section 8.09~~Lender. (ig) Notwithstanding any other provision set forth in this Agreement, any Lender may at any time create a security interest in all or any portion of its rights under this Agreement (~~including~~ including, without limitation, the ~~Term Loan~~ 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 System. (j) Notwithstanding anything to the contrary contained herein, any Lender that is a fund that invests in bank loans may create a security interest in all or any portion of the Term Loan Advances owing to it and the Note or Notes held by it to the trustee for holders of obligations owed, or securities issued, by such fund as security for such obligations or securities, provided, that unless and until such trustee actually becomes a Lender in compliance with the other provisions of this Section 8.07, (i) no such pledge shall release the pledging Lender from any of its obligations under the Loan Documents and (ii) such trustee shall not be entitled to exercise any of the rights of a Lender under the Loan Documents even though such trustee may have acquired ownership rights with respect to the pledged interest through foreclosure or otherwise. (k) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Lender”) may grant to a special purpose funding vehicle identified as such in writing from time to time by the Granting Lender to the Administrative Agent and BMCA (an “SPC”) the option to provide all or any part of any Term Loan Advance that such Granting Lender would otherwise be obligated to make pursuant to this Agreement, provided that (i) nothing herein shall constitute a commitment by any SPC to fund any Term Loan Advance, and (ii) if an SPC elects not to exercise such option or otherwise fails to make all or any part of such Term Loan Advance, the Granting Lender shall be obligated to make such Term Loan Advance pursuant to the terms hereof. The making of an Advance by an SPC hereunder shall utilize the Term Loan Commitment of the Granting Lender to the same extent, and as if, such Term Loan Advance were made by such Granting Lender. Each party hereto hereby agrees that (i) no SPC shall be liable for any indemnity or similar payment obligation under this Agreement for which a Lender would be liable, (ii) no SPC shall be entitled to the benefits of Sections 2.09 and 2.11 (or any other increased costs protection provision) and (iii) the Granting Bank shall for all purposes, including the approval of any amendment or waiver of any provision of any Loan Document, remain the Lender of record hereunder. In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior Debt of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency, or liquidation proceeding under the laws of the United States or any State thereof. Notwithstanding anything to the contrary contained in this Agreement, any SPC may (i) with notice to, but without prior consent of, BMCA and the Administrative Agent and with the payment of a processing fee of $500 and without paying any processing fee therefor, assign all or any portion of its interest in any Term Loan Advance to the Granting Lender and (ii) disclose on a confidential basis any non-public information relating to its funding of Term Loan Advance to any rating agency, commercial paper dealer or provider of any surety or guarantee or credit or liquidity enhancement to such SPC. This subsection (k) may not be amended without the prior written consent of each Granting Lender, all or any part of whose Term Loan Advances are being funded by the SPC at the time of such amendment.

Appears in 1 contract

Samples: Credit Agreement (C Quential Inc)

Assignments and Participations. (a) Each Lender ~~may, upon at least five Business Days’ notice to such Lender and the Administrative Agent,~~ may assign to one or more Eligible Assignees all or a portion of its rights and obligations under this Agreement (~~including~~ including, without limitation, all or a portion of its ~~Term Loan Commitment~~Commitment or Commitments, the ~~Term Loan~~ Advances owing to it and the Note or Notes held by it); provided, however, that (i) each such assignment shall be of a uniform, and not a varying, percentage of all rights and obligations under ~~this Agreement~~and in respect of any or all Classes, (ii) except in the case of an assignment to a Person that, immediately prior to such assignment, was a Lender, an Affiliate of any Lender or an Approved Fund of any Lender or an assignment of all of a Lender’s rights and obligations under this Agreement, the aggregate amount of the ~~Term Loan~~ Commitments ~~or Term Loan Advances~~ being assigned to such Eligible Assignee pursuant to such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $~~5,000,000~~ 10,000,000 (or such lesser amount as shall be approved by the Administrative Agent and, so long as no Event of Default under Section 6.01(a) or (f) shall have occurred and be continuing at the time of effectiveness of such assignment, ~~BMCA)~~the Borrower) under each Facility for which a Commitment is being assigned, (iii) each such assignment shall be to an Eligible ~~Assignee,~~ Assignee and (iv) except in the case of an assignment by a Person that, immediately prior to such assignment, was a Lender, to one of its Affiliates, no such assignments shall be permitted without the consent of the Administrative Agent and, so long as no Default shall have occurred and be continuing at the time of effectiveness of such assignment, BMCA (in each case, which consents shall not be unreasonably withheld) and (v) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together with any Note or Notes subject to such assignment and a processing and recordation fee of $~~3,500~~3,500 (unless waived by the Administration Agent in its sole discretion); provided that, only one such fee shall be payable in respect of simultaneous assignments by any Lender to its Affiliates. (ba) Upon such execution, delivery, acceptance and recording, from and after the effective date specified in such 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, have the rights and obligations of a Lender or an Issuing Bank, as the case may be, hereunder and (ii) the Lender or an Issuing Bank assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (other than its rights under Sections ~~2.09~~2.10, ~~2.11~~ 2.12 and ~~8.04~~ 9.04 to the extent any claim thereunder relates to an event arising prior to such assignment) and be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering 91 all of the remaining portion of an assigning Lender’s or an Issuing Bank’s rights and obligations under this Agreement, such Lender or such Issuing Bank shall cease to be a party hereto). (c) By executing and delivering an Assignment and Acceptance, each Lender assignor thereunder and each assignee thereunder confirm to and agree with each other and the other parties thereto and hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with any Loan Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value of, or the perfection or priority of any lien or security interest created or purported to be created under or in connection with, any Loan Document or any other instrument or document furnished pursuant thereto; (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party or the performance or observance by any Loan Party of any of its obligations under any Loan Document or any other instrument or document furnished pursuant thereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 4.01 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) such assignee will, independently and without reliance upon any Agent, such assigning Lender or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) such assignee confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes each Agent to take such action as agent on its behalf and to exercise such powers and discretion under the Loan Documents as are delegated to such Agent by the terms hereof and thereof, together with such powers and discretion as are reasonably incidental thereto; and (vii) such assignee agrees that it will perform in accordance with their terms all of the obligations that by the terms of this Agreement are required to be performed by it as a Lender. (d) The Administrative Agent acting for this purpose (but only for this purpose) as the agent of the Borrowers, shall maintain at its address referred to in Section 8.02 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 Lenders and the Term Loan Commitment of, and principal amount of the Term Loan Advances 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 Borrowers, the Agents and the Lenders shall treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrowers or any Agent or any Lender at any reasonable time and from time to time upon reasonable prior notice. (e) Notwithstanding anything to the contrary contained in clause (b) above, the Term Loan Advances (including the Notes evidencing such Term Loan Advances) are registered obligations and the right, title, and interest of the Lenders and their assignees in and to such Term Loan Advances shall be transferable only upon notation of such transfer in the Register. A Note shall only evidence the Lender’s or an assignee’s right title and interest in and to the related Term Loan Advance, and in no event is any such Note to be considered a bearer instrument or obligation. This Section 8.07 shall be construed so that the Term Loan Advances are at all times maintained in “registered form” within the meaning of sections 163(f), 871(h)(2) and 881(c)(2) of the Internal Revenue Code and any related regulations (or any successor provisions of the Internal Revenue Code or such regulations). Solely for purposes of this and for tax purposes only, the Administrative Agent shall act as each Borrower’s agent for purposes of maintaining such notations of transfer in the Register. (f) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee, together with any Note or Notes subject to such assignment, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit C hereto, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to BMCA and each other Agent. In the case of any assignment by a Lender, within five Business Days after its receipt of such notice, the Borrowers, at their own expense, shall, if requested by the assignee, execute and deliver to the Administrative Agent in exchange for the surrendered Note or Notes an amended and restated Note (which shall be marked “Amended and Restated”) to the order of such Eligible Assignee in an amount equal to the Term Loan Commitment assumed by it under each Facility pursuant to such Assignment and Acceptance and, if any assigning Lender has retained a Term Loan Commitment hereunder under such Facility and has requested a replacement Note, an amended and restated Note to the order of such assigning Lender in an amount equal to the Term Loan Commitment retained by it hereunder. Such amended and restated 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 Assignment and Acceptance and shall otherwise be in substantially the form of Exhibit A hereto. (g) Each Lender may sell participations to one or more Persons (other than any Loan Party or any of its Affiliates) in or to all or a portion of its rights and obligations under this Agreement (including all or a portion of its Term Loan Commitments, the Term Loan Advances owing to it and the Note or Notes (if any) held by it); provided, however, that (i) such Lender’s obligations under this Agreement (including its Term Loan Commitments) shall remain unchanged, (ii) 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, (iv) the Borrowers, the Agents and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and (v) no participant under any such participation shall have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent requires the consent of all Lenders. (h) Any Lender may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section 8.07, disclose to the assignee or participant or proposed assignee or participant any information relating to the Borrowers furnished to such Lender by or on behalf of the Borrowers; provided, however, 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 received by it from such Lender in accordance with the terms of Section 8.09. (i) Notwithstanding any other provision set forth in this Agreement, any Lender may at any time create a security interest in all or any portion of its rights under this Agreement (including the Term Loan 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 System. (j) Notwithstanding anything to the contrary contained herein, any Lender that is a fund that invests in bank loans may create a security interest in all or any portion of the Term Loan Advances owing to it and the Note or Notes held by it to the trustee for holders of obligations owed, or securities issued, by such fund as security for such obligations or securities, provided, that unless and until such trustee actually becomes a Lender in compliance with the other provisions of this Section 8.07, (i) no such pledge shall release the pledging Lender from any of its obligations under the Loan Documents and (ii) such trustee shall not be entitled to exercise any of the rights of a Lender under the Loan Documents even though such trustee may have acquired ownership rights with respect to the pledged interest through foreclosure or otherwise. (k) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Lender”) may grant to a special purpose funding vehicle identified as such in writing from time to time by the Granting Lender to the Administrative Agent and BMCA (an “SPC”) the option to provide all or any part of any Term Loan Advance that such Granting Lender would otherwise be obligated to make pursuant to this Agreement, provided that (i) nothing herein shall constitute a commitment by any SPC to fund any Term Loan Advance, and (ii) if an SPC elects not to exercise such option or otherwise fails to make all or any part of such Term Loan Advance, the Granting Lender shall be obligated to make such Term Loan Advance pursuant to the terms hereof. The making of an Advance by an SPC hereunder shall utilize the Term Loan Commitment of the Granting Lender to the same extent, and as if, such Term Loan Advance were made by such Granting Lender. Each party hereto hereby agrees that (i) no SPC shall be liable for any indemnity or similar payment obligation under this Agreement for which a Lender would be liable, (ii) no SPC shall be entitled to the benefits of Sections 2.09 and 2.11 (or any other increased costs protection provision) and (iii) the Granting Bank shall for all purposes, including the approval of any amendment or waiver of any provision of any Loan Document, remain the Lender of record hereunder. In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior Debt of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency, or liquidation proceeding under the laws of the United States or any State thereof. Notwithstanding anything to the contrary contained in this Agreement, any SPC may (i) with notice to, but without prior consent of, BMCA and the Administrative Agent and with the payment of a processing fee of $500 and without paying any processing fee therefor, assign all or any portion of its interest in any Term Loan Advance to the Granting Lender and (ii) disclose on a confidential basis any non-public information relating to its funding of Term Loan Advance to any rating agency, commercial paper dealer or provider of any surety or guarantee or credit or liquidity enhancement to such SPC. This subsection (k) may not be amended without the prior written consent of each Granting Lender, all or any part of whose Term Loan Advances are being funded by the SPC at the time of such amendment.

Appears in 1 contract

Samples: Credit Agreement (Kansas City Southern)

Assignments and Participations. (a) ~~Each Lender may~~Subject to the EKN General Conditions, ~~upon at least five Business Days’ notice to such Lender~~ the prior approval of EKN and the prior written consent of the Administrative Agent (which, in the case of the Administrative Agent, shall not be unreasonably withheld), each Lender may assign to one or more ~~Eligible Assignees~~ banks or other entities (including any trust or other Person in connection with a securitization or monetization of the Advances or other indirect raising of capital) all or a portion of its rights and obligations under this Agreement (including all or a ~~portion of its Term Loan Commitment, the Term Loan Advances owing to it and the Note or Notes held by it); provided, however, that~~ 125 (i) each such assignment of any Commitments shall be of a uniform, and not a varying, percentage of all rights and obligations under ~~this Agreement,~~ and in respect of all Commitments; (ii) except in the case of an assignment to a Person that, immediately prior to such assignment, was a ~~Lender, an Affiliate of any Lender or an Approved Fund of any~~ Lender or an assignment of all of a Lender’s 's rights and obligations under this Agreement, the ~~aggregate~~ amount of the ~~Term Loan Commitments or Term Loan~~ Commitment and/or portions of Advances of the assigning Lender being assigned ~~to such Eligible Assignee~~ pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $5,000,000 ~~(or such lesser amount as~~ and shall be ~~approved by the Administrative Agent and, so long as no Default shall have occurred and be continuing at the time~~ an integral multiple of ~~effectiveness of such assignment, BMCA),~~ $1,000,000; (iii) each such assignment shall be to an Eligible Assignee, (iv) except in the case of an assignment by a Person that, immediately prior to such assignment, was a Lender, to one of its Affiliates, no such assignments shall be permitted without the consent of the Administrative Agent and, so long as no Default shall have occurred and be continuing at the time of effectiveness of such assignment, BMCA (in each case, which consents shall not be unreasonably withheld) and (v) the parties to each such assignment ~~shall~~ shall: (A) execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together with ~~any Note or Notes subject to such assignment and~~ a processing and recordation fee of *****; and (B) deliver a copy of such Assignment and Acceptance to the Borrower at the time it delivers a copy to the Administrative Agent; and (iv) unless the Borrower shall have consented thereto, no such assignment of undrawn Commitments shall be made: (A) except to a Person that shall have represented that it has a combined capital and surplus in excess of $~~3,500~~50,000,000; and (B) except to a Person, other than a commercial bank or other financial institution, that shall have represented that such Person is not engaged in, and does not have an Affiliate that is engaged in, the business of providing PCS telecommunications services to the public. (b) Upon such execution, delivery, acceptance and recording, from and after the effective date specified in such Assignment and Acceptance, : (i) the assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder and under the Intercreditor Agreement have been assigned to it pursuant to such Assignment and Acceptance, have the rights and obligations of a Lender hereunder and thereunder; and (ii) the Lender assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights ~~(other than its rights under Sections 2.09, 2.11 and 8.04 to the extent any claim thereunder relates to an event arising prior to such assignment)~~ and be released from its obligations under this -------------------------------------------------------------------------------- ***** Certain information on this page has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. 126 Agreement and the Intercreditor Agreement (and, in the case of an Assignment and Acceptance covering all of or the remaining portion of an assigning Lender’s 's rights and obligations under this Agreement, such Lender shall cease to be a party hereto). (c) By executing and delivering an Assignment and Acceptance, ~~each~~ the Lender assignor thereunder and ~~each~~ the assignee thereunder confirm to and agree with each other and the other parties ~~thereto and~~ hereto as follows: : (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with ~~any Loan Document~~ this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value ~~of, or the perfection or priority~~ of ~~any lien or security interest created or purported to be created under or in connection with, any Loan Document~~ this Agreement or any other instrument or document furnished pursuant ~~thereto;~~ hereto; (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of ~~any Loan Party~~ the Borrower or the performance or observance by ~~any Loan Party~~ the Borrower of any of its obligations under ~~any Loan Document~~ this Agreement or any other instrument or document furnished pursuant ~~thereto;~~ hereto; (iii) such assignee confirms that it has received a copy of this Agreement, the Intercreditor Agreement and each other Loan Document, together with copies of the financial statements referred to in Section ~~4.01~~ 10.1(bb) and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; ; (iv) such assignee will, independently and without reliance upon ~~any Agent~~the Administrative Agent or the Arranger, such assigning Lender or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; ; (v~~) such assignee confirms that it is an Eligible Assignee; (vi~~) such assignee appoints and authorizes ~~each~~ the Administrative Agent to take such action as agent on its behalf and to exercise such powers and discretion under ~~the Loan Documents~~ this Agreement as are delegated to ~~such~~ the Administrative Agent by the terms ~~hereof and thereof~~hereof, together with such powers and discretion as are reasonably incidental thereto~~; and~~ ; (~~vii~~vi) such assignee agrees that it will perform in accordance with their terms all of the obligations that by the terms of this Agreement and the Intercreditor Agreement are required to be performed by it as a Lender; 127 (vii) such assignee makes the representations set forth in subsection (a)(iv) above and in Section 13.13; and (viii) such assignee confirms that it is bound by the confidentiality provisions set forth in Section 14.14. (d) The Administrative Agent ~~acting for this purpose (but only for this purpose) as the agent of the Borrowers,~~ shall maintain at its address referred to in Section ~~8.02~~ 14.2 a copy of each Assignment and Acceptance delivered to and accepted by it and a register for the recordation of the names and addresses of the Lenders and the ~~Term Loan Commitment~~ Commitments of, and portions of the principal amount of the ~~Term Loan~~ 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 ~~Borrowers~~Borrower, the ~~Agents~~ Administrative Agent and the Lenders ~~shall~~ 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 Agent~~ Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice. (e) Notwithstanding anything to the contrary contained in clause (b) above, the Term Loan Advances (including the Notes evidencing such Term Loan Advances) are registered obligations and the right, title, and interest of the Lenders and their assignees in and to such Term Loan Advances shall be transferable only upon notation of such transfer in the Register. A Note shall only evidence the Lender’s or an assignee’s right title and interest in and to the related Term Loan Advance, and in no event is any such Note to be considered a bearer instrument or obligation. This Section 8.07 shall be construed so that the Term Loan Advances are at all times maintained in “registered form” within the meaning of sections 163(f), 871(h)(2) and 881(c)(2) of the Internal Revenue Code and any related regulations (or any successor provisions of the Internal Revenue Code or such regulations). Solely for purposes of this and for tax purposes only, the Administrative Agent shall act as each Borrower’s agent for purposes of maintaining such notations of transfer in the Register. (f) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee, ~~together with any Note or Notes subject to such assignment,~~ the Administrative Agent shall, if such Assignment and Acceptance has been completed and is substantially in ~~substantially~~ the form of Exhibit ~~C hereto~~C, --------- (i) accept such Assignment and Acceptance, ; (ii) record the information contained therein in the ~~Register and~~ Register; and (iii) give prompt notice thereof to ~~BMCA and each other Agent. In~~ the case of any assignment by a Lender, within five Business Days after its receipt of such notice, the Borrowers, at their own expense, shall, if requested by the assignee, execute and deliver to the Administrative Agent in exchange for the surrendered Note or Notes an amended and restated Note (which shall be marked “Amended and Restated”) to the order of such Eligible Assignee in an amount equal to the Term Loan Commitment assumed by it under each Facility pursuant to such Assignment and Acceptance and, if any assigning Lender has retained a Term Loan Commitment hereunder under such Facility and has requested a replacement Note, an amended and restated Note to the order of such assigning Lender in an amount equal to the Term Loan Commitment retained by it hereunder. Such amended and restated 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 Assignment and Acceptance and shall otherwise be in substantially the form of Exhibit A heretoBorrower. (g) Each Lender may sell participations to one or more Persons (other than any Loan Party or any of its Affiliates) in or to all or a portion of its rights and obligations under this Agreement (including all or a portion of its Term Loan Commitments, the Term Loan Advances owing to it and the Note or Notes (if any) held by it); provided, however, that (i) such Lender’s obligations under this Agreement (including its Term Loan Commitments) shall remain unchanged, (ii) 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, (iv) the Borrowers, the Agents and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and (v) no participant under any such participation shall have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent requires the consent of all Lenders. (hf) Any Lender may, in connection with any assignment or ~~participation or~~ proposed assignment ~~or participation~~ pursuant to this Section ~~8.07~~14.9, disclose to the assignee or participant or proposed assignee or ~~participant~~ participant, any information relating to the ~~Borrowers~~ Borrower furnished to such Lender by or on behalf of the ~~Borrowers~~Borrower; ~~provided, however,~~ 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 received by it from such ~~Lender in accordance with the terms of Section 8.09~~Lender. (ig) Notwithstanding any other provision set forth in this Agreement, any Lender may at any time create a security interest in all or any portion of its rights under this Agreement (including its Commitment Percentage in the ~~Term Loan Advances owing to it and the Note or Notes held by it~~Advances) in favor of any Federal Reserve Bank in accordance with Regulation A of the Board of Governors of the Federal Reserve System. (jh) Notwithstanding anything to the contrary contained herein, any Lender that is a fund that invests in bank loans may create a security interest in all or any portion of the Term Loan Advances owing to it and the Note or Notes held by it to the trustee for holders of obligations owed, or securities issued, by such fund as security for such obligations or securities, provided, that unless and until such trustee actually becomes a Lender in compliance with the other provisions of this Section 8.07, (i) no such pledge shall release the pledging Lender from any of its obligations under the Loan Documents and (ii) such trustee shall not be entitled to exercise any of the rights of a Lender under the Loan Documents even though such trustee may have acquired ownership rights with respect to the pledged interest through foreclosure or otherwise. (k) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Lender”) may grant to a special purpose funding vehicle identified as such in writing from time to time by the Granting Lender to the Administrative Agent and BMCA (an “SPC”) the option to provide all or any part of any Term Loan Advance that such Granting Lender would otherwise be obligated to make pursuant to this Agreement, provided that (i) nothing herein shall constitute a commitment by any SPC to fund any Term Loan Advance, and (ii) if an SPC elects not to exercise such option or otherwise fails to make all or any part of such Term Loan Advance, the Granting Lender shall be obligated to make such Term Loan Advance pursuant to the terms hereof. The making of an Advance by an SPC hereunder shall utilize the Term Loan Commitment of the Granting Lender to the same extent, and as if, such Term Loan Advance were made by such Granting Lender. Each party hereto hereby agrees that (i) no SPC shall be liable for any indemnity or similar payment obligation under this Agreement for which a Lender would be liable, (ii) no SPC shall be entitled to the benefits of Sections 2.09 and 2.11 (or any other ~~increased costs protection provision) and (iii) the Granting Bank shall for all purposes, including the approval of any amendment or waiver of any~~ provision of any Loan Document, remain the Lender of record hereunder. In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior Debt of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency, or liquidation proceeding under the laws of the United States or any State thereof. Notwithstanding anything to the contrary contained set forth in this Agreement, any ~~SPC~~ Lender may ~~(i) with notice to, but without prior consent of, BMCA and the Administrative Agent and with the payment of a processing fee of $500 and without paying~~ at any ~~processing fee therefor,~~ time assign all or ~~any~~ a portion of its ~~interest~~ rights and obligations hereunder to EKN in ~~any Term Loan Advance to~~ accordance with the Granting Lender and (ii) disclose on a confidential basis any non-public information relating to its funding of Term Loan Advance to any rating agency, commercial paper dealer or provider of any surety or guarantee or credit or liquidity enhancement to such SPCEKN Documents. ~~This subsection (k) may not be amended without the prior written consent of each Granting Lender, all or any part of whose Term Loan Advances are being funded by the SPC at the time of such amendment.~~128

Appears in 1 contract

Samples: Loan Agreement (Omnipoint Corp \De\)

Assignments and Participations. (a) Each Lender ~~may~~may and, if demanded by any Borrower (following a demand by such Lender pursuant to Section 2.12 or 2.15) upon at least five Business Days’ notice to such Lender and the Administrative Agent, will assign to one or more ~~Eligible Assignees~~ Persons all or a portion of its rights and obligations under this Agreement (~~including~~ including, without limitation, all or a portion of its ~~Term Loan~~ Commitment, the ~~Term Loan~~ Revolving Credit Advances owing to it and the Note or Notes held by it); provided, however, that (i) such Lender shall have obtained the prior written consent of the Administrative Agent, the Issuing Bank and, other than in the case of an assignment to an Affiliate of such Lender, another Lender or its Affiliate, or assignments of the type described in subsection (g) below and unless a Default or an Event of Default has occurred and is continuing, Rayonier, in each case such consent not to be unreasonably withheld or delayed, (ii) each such assignment shall be of a ~~uniform~~constant, and not a varying, percentage of all rights and obligations under this Agreement, (iiiii) except in the case of an assignment to a Person that, immediately prior to such assignment, was a ~~Lender, an Affiliate of any Lender or an Approved Fund of any~~ Lender or an assignment of all of a Lender’s rights and obligations under this Agreement, the ~~aggregate~~ amount of the ~~Term Loan Commitments or Term Loan Advances~~ Commitment of the assigning Lender being assigned ~~to such Eligible Assignee~~ pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $5,000,000 ~~(or such lesser amount as~~ and shall be ~~approved by~~ an integral multiple of $1,000,000 unless Rayonier and the Administrative Agent ~~and~~otherwise agree, ~~so long as no Default shall have occurred~~ and ~~be continuing at~~ if the ~~time~~ assigning Lender is assigning less than all of ~~effectiveness of~~ its Commitments after giving effect to such assignment, ~~BMCA)~~the amount of the commitment of the assigning Lender shall be equal to or greater than $5,000,000, (~~iii~~iv) each such assignment shall be to an Eligible Assignee, (ivv) ~~except~~ each such assignment made as a result of a demand by the applicable Borrower pursuant to this Section 8.07(a) shall be arranged by such Borrower after consultation with the Administrative Agent and shall be either an assignment of all of the rights and obligations of the assigning Lender under this Agreement or an assignment of a portion of such rights and obligations made concurrently with another such assignment or other such assignments that together cover all of the rights and obligations of the assigning Lender under this Agreement, (vi) no Lender shall be obligated to make any such assignment as a result of a demand by the applicable Borrower pursuant to this Section 8.07(a) unless and until such Lender shall have received one or more payments from either such Borrower or one or more Eligible Assignees in an aggregate amount at least equal to the ~~case~~ aggregate outstanding principal amount of the Revolving Credit Advances owing to such Lender, together with accrued interest thereon to the date of payment of such principal amount, its proportionate interest in LC Exposure and all other amounts payable to such Lender under this Agreement, (vi) each such assignment shall include an assignment by ~~a Person that, immediately prior to~~ such ~~assignment, was a Lender, to one~~ Lender of its ~~Affiliates~~proportionate interest in LC Exposure, no such assignments shall be permitted without the consent of the Administrative Agent and, so long as no Default shall have occurred and be continuing at the time of effectiveness of such assignment, BMCA (in each case, which consents shall not be unreasonably withheld) and (vvii) the parties to each such assignment shall (y) electronically execute and deliver to the Administrative ~~Agent~~Agent an Assignment and Acceptance via an electronic settlement system acceptable to the Administrative Agent (which initially shall be ClearPar, LLC) or (z) manually execute and deliver to the Administrative Agent an Assignment and Acceptance together with a processing and recordation fee of $3,500 (such fee payable by the assignor or assignee, as agreed by the parties), for its acceptance and recording in the Register~~, an Assignment and Acceptance, together with any Note or Notes subject to such assignment and a processing and recordation fee of $3,500. (b)~~ . Upon such execution, delivery, acceptance and recording, from and after the effective date specified in ~~such~~ each Assignment and Acceptance, (ix) the assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, have the rights and obligations of a Lender hereunder and (iiy) the Lender assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (other than its rights under ~~Sections 2.09~~Section 2.12, ~~2.11~~ 2.15 and 8.04 to the extent any claim thereunder relates to an event arising prior to such assignment) and be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all of or the remaining portion of an assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto). (cb) By executing and delivering an Assignment and Acceptance, ~~each~~ the Lender assignor thereunder and ~~each~~ the assignee thereunder confirm to and agree with each other and the other parties ~~thereto and~~ hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to (A) any statements, warranties or representations made in or in connection with this Agreement or any other Loan ~~Document or~~ Document, (B) the execution, legality, validity, enforceability, genuineness, sufficiency or value ~~of, or~~ of the ~~perfection or priority of any lien or security interest created or purported to be created under or in connection with, any~~ Loan ~~Document~~ Documents or any ~~other instrument or document furnished pursuant thereto;~~ collateral thereunder, (iiC) ~~such assigning Lender makes no representation or warranty and assumes no responsibility with respect to~~ the financial condition of any Borrower, any of its Subsidiaries or Affiliates or any other Person obligated in respect of any Loan ~~Party~~ Document or (D) the performance or observance by any ~~Loan Party~~ Borrower, any of its Subsidiaries or Affiliates or any other Person of any of ~~its~~ their respective obligations under any Loan ~~Document or any other instrument or document furnished pursuant thereto~~Document; (~~iii~~ii) such assignee ~~confirms~~ (A) represents and warrants that (1) it satisfies the requirements, if any, specified in this Agreement that are required to be satisfied by it in order to acquire the Assigned Interest (as defined in such Assignment and Acceptance) and become a Lender, (2) from and after the Effective Date (specified in such Assignment and Acceptance), it shall be bound by the provisions of this Agreement as a Lender thereunder and, to the extent of the Assigned Interest, shall have the obligations of a Lender thereunder, (3) it has received a copy of this Agreement, together with copies of the most recent financial statements referred to in Section 4.01 or delivered pursuant to Section 5.01, and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and ~~Acceptance~~Acceptance and to purchase the Assigned Interest on the basis of which it has made such analysis and decision independently and without reliance on the Administrative Agent, the assigning Lender or any other Lender, and (4) it is an Eligible Assignee; and (ivB) ~~such assignee~~ agrees that (1) it will, independently and without reliance ~~upon any~~ on the Administrative Agent, ~~such~~ the assigning Lender or any other ~~Lender~~ Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) such assignee confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes each Agent to take such action as agent on its behalf and to exercise such powers and discretion under the Loan ~~Documents as are delegated to such Agent by the terms hereof and thereof~~Documents, ~~together with such powers and discretion as are reasonably incidental thereto;~~ and (~~vii~~2) ~~such assignee agrees that~~ it will perform in accordance with their terms all of the obligations ~~that~~ which by the terms of ~~this Agreement~~ the Loan Documents are required to be performed by it as a Lender. (c) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee representing that it is an Eligible Assignee the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit F hereto, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) in the event when consent of Rayonier for such Assignment and Acceptance is not required, give notice thereof to Rayonier. (d) The Administrative Agent ~~acting for this purpose (but only for this purpose) as the agent of the Borrowers,~~ shall maintain at its address referred to in Section 8.02 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 each of the Lenders and the ~~Term Loan~~ Commitment of, and principal amount of the ~~Term Loan~~ Revolving Credit Advances owing to, each Lender from time to time and proportionate interest of such Lender in LC Exposure (the “Register”). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and ~~the Borrowers~~any Borrower, the ~~Agents~~ Administrative Agent and the Lenders ~~shall~~ 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 ~~Agent~~ Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice. (e) Notwithstanding anything to the contrary contained in clause (b) above, the Term Loan Advances (including the Notes evidencing such Term Loan Advances) are registered obligations and the right, title, and interest of the Lenders and their assignees in and to such Term Loan Advances shall be transferable only upon notation of such transfer in the Register. A Note shall only evidence the Lender’s or an assignee’s right title and interest in and to the related Term Loan Advance, and in no event is any such Note to be considered a bearer instrument or obligation. This Section 8.07 shall be construed so that the Term Loan Advances are at all times maintained in “registered form” within the meaning of sections 163(f), 871(h)(2) and 881(c)(2) of the Internal Revenue Code and any related regulations (or any successor provisions of the Internal Revenue Code or such regulations). Solely for purposes of this and for tax purposes only, the Administrative Agent shall act as each Borrower’s agent for purposes of maintaining such notations of transfer in the Register. (f) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee, together with any Note or Notes subject to such assignment, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit C hereto, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to BMCA and each other Agent. In the case of any assignment by a Lender, within five Business Days after its receipt of such notice, the Borrowers, at their own expense, shall, if requested by the assignee, execute and deliver to the Administrative Agent in exchange for the surrendered Note or Notes an amended and restated Note (which shall be marked “Amended and Restated”) to the order of such Eligible Assignee in an amount equal to the Term Loan Commitment assumed by it under each Facility pursuant to such Assignment and Acceptance and, if any assigning Lender has retained a Term Loan Commitment hereunder under such Facility and has requested a replacement Note, an amended and restated Note to the order of such assigning Lender in an amount equal to the Term Loan Commitment retained by it hereunder. Such amended and restated 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 Assignment and Acceptance and shall otherwise be in substantially the form of Exhibit A hereto. (g) Each Lender may sell participations to one or more ~~Persons~~ banks or other entities (other than any ~~Loan Party~~ Borrower or any of its Affiliates) in or to all or a portion of its rights and obligations under this Agreement (~~including~~ including, without limitation, all or a portion of its ~~Term Loan Commitments~~Commitment, the ~~Term Loan~~ Revolving Credit Advances owing to it and ~~the Note or~~ any Notes ~~(if any)~~ held by it); provided, however, that (i) such Lender’s obligations under this Agreement (~~including~~ including, without limitation, its ~~Term Loan Commitments~~Commitment to the Borrowers hereunder) shall remain unchanged, (ii) 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, (iv) the Borrowers, the ~~Agents~~ Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and (v) no participant under any such participation shall have any right to approve any amendment or waiver of any provision of this Agreement, any Note or any other Loan Document, or any consent to any departure by any ~~Loan Party~~ Borrower therefrom, except to the extent that such amendment, waiver or consent ~~requires~~ would reduce the ~~consent~~ principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, or postpone any date fixed for any payment of ~~all Lenders~~principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation. (hf) Any Lender may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section 8.07, disclose to the assignee or participant or proposed assignee or ~~participant~~ participant, any information relating to ~~the Borrowers~~ any Borrower furnished to such Lender by or on behalf of ~~the Borrowers~~such Borrower; ~~provided, however,~~ 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 such Borrower received by it from such ~~Lender in accordance with the terms of Section 8.09~~Lender. (ig) Notwithstanding any other provision set forth in this Agreement, any Lender may at any time create a security interest (or any other similar interest) in all or any portion of its rights under this Agreement (~~including~~ including, without limitation, the ~~Term Loan~~ Revolving Credit Advances owing to it and ~~the~~ any 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 System. (j) Notwithstanding anything to the contrary contained herein, any Lender that is a fund that invests in bank loans may create a security interest in all or any portion of the Term Loan Advances owing to it and the Note or Notes held by it to the trustee for holders of obligations owed, or securities issued, by such fund as security for such obligations or securities, provided, that unless and until such trustee actually becomes a Lender in compliance with the other provisions of this Section 8.07, (i) no such pledge shall release the pledging Lender from any of its obligations under the Loan Documents and (ii) such trustee shall not be entitled to exercise any of the rights of a Lender under the Loan Documents even though such trustee may have acquired ownership rights with respect to the pledged interest through foreclosure or otherwise. (kh) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting ~~Lender~~Bank”) may grant to a special purpose funding vehicle (a “SPC”), identified as such in writing from time to time by the Granting ~~Lender~~ Bank to the Administrative Agent and ~~BMCA (an “SPC”)~~ each Borrower, the option to provide to the Borrowers all or any part of any ~~Term Loan~~ Revolving Credit Advance that such Granting ~~Lender~~ Bank would otherwise be obligated to make to the Borrowers pursuant to this Agreement, ; provided that (i) nothing herein shall constitute a commitment by any SPC to ~~fund~~ make any ~~Term Loan~~ Revolving Credit Advance, ~~and~~ (ii) if an a SPC elects not to exercise such option or otherwise fails to ~~make~~ provide all or any part of such ~~Term Loan~~ Revolving Credit Advance, the Granting ~~Lender~~ Bank shall be obligated to make such ~~Term Loan~~ Revolving Credit Advance pursuant to the terms hereof. The making of an a Revolving Credit Advance by an a SPC hereunder shall utilize the ~~Term Loan~~ Commitment of the Granting ~~Lender~~ Bank to the same extent, and as if, such ~~Term Loan~~ Revolving Credit Advance were made by such Granting ~~Lender~~Bank. Each party hereto hereby agrees that ~~(i)~~ no SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which ~~a Lender would be liable, (ii) no SPC~~ shall ~~be entitled to the benefits of Sections 2.09 and 2.11 (or any other increased costs protection provision) and (iii)~~ remain with the Granting ~~Bank shall for all purposes, including the approval of any amendment or waiver of any provision of any Loan Document, remain the Lender of record hereunder~~Bank). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior ~~Debt~~ indebtedness of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, ~~insolvency,~~ insolvency or liquidation ~~proceeding~~ proceedings under the laws of the United States or any State thereof. ~~Notwithstanding~~ In addition, notwithstanding anything to the contrary contained in this ~~Agreement~~Section, any SPC may (i) with notice to, but without the prior written consent of, ~~BMCA~~ each Borrower and the Administrative Agent ~~and with the payment of a processing fee of $500~~ and without paying any processing fee therefor, assign all or ~~any~~ a portion of its ~~interest~~ interests in any ~~Term Loan Advance~~ Revolving Credit Advances to the Granting ~~Lender~~ Bank or to any financial institutions (consented to by each Borrower and Administrative Agent) providing liquidity and/or credit support to or for the account of such SPC to support the funding or maintenance of Revolving Credit Advances and (ii) disclose on a confidential basis any non-public information relating to its ~~funding of Term Loan Advance~~ Revolving Credit Advances to any rating agency, commercial paper dealer or provider of any ~~surety or~~ surety, guarantee or credit or liquidity enhancement to such SPC. This ~~subsection (k)~~ section may not be amended without the ~~prior~~ written consent of ~~each Granting Lender, all or any part of whose Term Loan Advances are being funded by~~ the ~~SPC at the time of such amendment~~SPC.

Appears in 1 contract

Samples: Revolving Credit Agreement (Rayonier Inc)

Assignments and Participations. (a) Each Lender ~~may~~may and, so long as no Default shall have occurred and be continuing, if demanded by the Company (following a demand by such Lender pursuant to Section 2.11 or 2.14) upon at least ~~five~~ 5 Business Days’ ' notice to such Lender and the ~~Administrative~~ Agent, will assign to one or more ~~Eligible Assignees~~ Persons all or a portion of its rights and obligations under this Agreement (~~including~~ including, without limitation, all or a portion of its ~~Term Loan~~ Commitment, its Unissued Letter of Credit Commitment, the ~~Term Loan~~ Advances owing to it it, its participations in Letters of Credit and ~~the~~ any Note or Notes held by it); provided, however, that (i) each such assignment shall be of a ~~uniform~~constant, and not a varying, percentage of all rights and obligations under this ~~Agreement~~Agreement related to the Commitments or the Unissued Letter of Credit Commitment assigned thereby, (ii) except in the case of an assignment to a Person that, immediately prior to such assignment, was a ~~Lender, an Affiliate of any Lender or an Approved Fund of any~~ Lender or an assignment of all of a Lender’s 's rights and obligations under this Agreement, the ~~aggregate~~ amount of (x) the ~~Term Loan Commitments or Term Loan Advances~~ Commitment of the assigning Lender being assigned ~~to such Eligible Assignee~~ pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $5,000,000 or an integral multiple of $1,000,000 in excess thereof and (or y) the Unissued Letter of Credit Commitment of the assigning Lender being assigned pursuant to each such ~~lesser amount~~ assignment (determined as ~~shall be approved by~~ of the ~~Administrative Agent and, so long as no Default shall have occurred~~ date of the Assignment and ~~be continuing at the time of effectiveness of~~ Acceptance with respect to such assignment~~, BMCA)~~) shall in no event be less than $1,000,000 or an integral multiple of $1,000,000 in excess thereof, (iii) each such assignment shall be to an Eligible Assignee, (iv) ~~except in~~ each such assignment made as a result of a demand by the ~~case of~~ Company pursuant to this Section 9.07(a) shall be arranged by the Company after consultation with the Agent and shall be either an assignment of all of the rights and obligations of the assigning Lender under this Agreement or an assignment of a portion of such rights and obligations made concurrently with another such assignment or other such assignments that together cover all of the rights and obligations of the assigning Lender under this Agreement, (v) no Lender shall be obligated to make any such assignment as a result of a demand by ~~a Person that, immediately prior~~ the Company pursuant to this Section 9.07(a) unless and until such Lender shall have received one or more payments from either the Company or one or more Eligible Assignees in an aggregate amount at least equal to the aggregate outstanding principal amount of the Advances owing to such ~~assignment, was a~~ Lender, together with accrued interest thereon to ~~one~~ the date of ~~its Affiliates, no such assignments shall be permitted without the consent of the Administrative Agent and, so long as no Default shall have occurred and be continuing at the time of effectiveness~~ payment of such ~~assignment~~principal amount and all other amounts payable to such Lender under this Agreement, ~~BMCA (in each case, which consents shall not be unreasonably withheld)~~ and (vvi) the parties to each such assignment shall execute and deliver to the ~~Administrative~~ Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together with any Note ~~or Notes~~ subject to such assignment and a processing and recordation fee of $~~3,500.~~ 3,500 payable by the parties to each such assignment, provided, however, that in the case of each assignment made as a result of a demand by the Company, such recordation fee shall be payable by the Company except that no such recordation fee shall be payable in the case of an assignment made at the request of the Company to an Eligible Assignee that is an existing Lender, and (bvii) any Lender may, without the approval of the Company or the Agent, assign all or a portion of its rights to any of its Affiliates or to another Lender unless on the date of such assignment the assignee would be entitled to make a demand pursuant to Section 2.11 or 2.14, in which case such assignment shall be permitted only if the assignee shall waive in a manner satisfactory to the Company in form and substance its rights to make such a demand. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in ~~such~~ each Assignment and Acceptance, (ix) the assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, have the rights and obligations of a Lender hereunder and (iiy) the Lender assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (other than its rights under ~~Sections 2.09~~Section 2.11, ~~2.11~~ 2.14 and ~~8.04~~ 9.04 to the extent any claim thereunder relates to an event arising prior to such assignment) and be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all of or the remaining portion of an assigning Lender’s 's rights and obligations under this Agreement, such Lender shall cease to be a party hereto). (cb) By executing and delivering an Assignment and Acceptance, ~~each~~ the Lender assignor thereunder and ~~each~~ the assignee thereunder confirm to and agree with each other and the other parties ~~thereto and~~ hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with ~~any Loan Document~~ this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of, or the perfection or priority of any lien or security interest created or purported to be created under or in connection with, ~~any Loan Document~~ this Agreement or any other instrument or document furnished pursuant ~~thereto~~hereto; (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of the Company or any ~~Loan Party~~ other Borrower or the performance or observance by the Company or any ~~Loan Party~~ other Borrower of any of its obligations under ~~any Loan Document~~ this Agreement or any other instrument or document furnished pursuant ~~thereto~~hereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 4.01 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) such assignee will, independently and without reliance upon ~~any~~ the Agent, such assigning Lender or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) such assignee confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes ~~each~~ the Agent to take such action as agent on its behalf and to exercise such powers and discretion under ~~the Loan Documents~~ this Agreement as are delegated to ~~such~~ the Agent by the terms ~~hereof and thereof~~hereof, together with such powers and discretion as are reasonably incidental thereto; and (vii) such assignee agrees that it will perform in accordance with their terms all of the obligations that by the terms of this Agreement are required to be performed by it as a Lender. (d) The Administrative Agent acting for this purpose (but only for this purpose) as the agent of the Borrowers, shall maintain at its address referred to in Section 8.02 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 Lenders and the Term Loan Commitment of, and principal amount of the Term Loan Advances 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 Borrowers, the Agents and the Lenders shall treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrowers or any Agent or any Lender at any reasonable time and from time to time upon reasonable prior notice. (e) Notwithstanding anything to the contrary contained in clause (b) above, the Term Loan Advances (including the Notes evidencing such Term Loan Advances) are registered obligations and the right, title, and interest of the Lenders and their assignees in and to such Term Loan Advances shall be transferable only upon notation of such transfer in the Register. A Note shall only evidence the Lender’s or an assignee’s right title and interest in and to the related Term Loan Advance, and in no event is any such Note to be considered a bearer instrument or obligation. This Section 8.07 shall be construed so that the Term Loan Advances are at all times maintained in “registered form” within the meaning of sections 163(f), 871(h)(2) and 881(c)(2) of the Internal Revenue Code and any related regulations (or any successor provisions of the Internal Revenue Code or such regulations). Solely for purposes of this and for tax purposes only, the Administrative Agent shall act as each Borrower’s agent for purposes of maintaining such notations of transfer in the Register. (fc) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an ~~assignee~~assignee representing that it is an Eligible Assignee, together with any Note or Notes subject to such assignment, the ~~Administrative~~ Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit C hereto, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to ~~BMCA and~~ the Company. (d) The Agent shall maintain at its address referred to in Section 9.02 a copy of each other Agent. In the case of any assignment by a Lender, within five Business Days after its receipt of such notice, the Borrowers, at their own expense, shall, if requested by the assignee, execute and deliver to the Administrative Agent in exchange for the surrendered Note or Notes an amended and restated Note (which shall be marked “Amended and Restated”) to the order of such Eligible Assignee in an amount equal to the Term Loan Commitment assumed by it under each Facility pursuant to such Assignment and Acceptance ~~and, if any assigning Lender has retained a Term Loan Commitment hereunder under such Facility~~ delivered to and ~~has requested a replacement Note, an amended and restated Note to the order of such assigning Lender in an amount equal to the Term Loan Commitment retained~~ accepted by it ~~hereunder. Such amended~~ and ~~restated Note or Notes shall be in an aggregate principal amount equal to~~ a register for the ~~aggregate~~ recordation of the names and addresses of the Lenders and the Commitment of, and principal amount of ~~such surrendered Note or Notes~~the Advances owing to, each Lender from time to time (the "Register"). The entries in the Register shall be ~~dated~~ conclusive and binding for all purposes, absent manifest error, and the ~~effective date~~ Company, the Agent and the Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of ~~such Assignment~~ this Agreement. The Register shall be available for inspection by the Company or any Lender at any reasonable time and ~~Acceptance and shall otherwise be in substantially the form of Exhibit A hereto~~from time to time upon reasonable prior notice. (ge) Each Lender may sell participations to one or more ~~Persons~~ banks or other entities (other than ~~any Loan Party~~ the Company or any of its Affiliates) in or to all or a portion of its rights and obligations under this Agreement (~~including~~ including, without limitation, all or a portion of its ~~Term Loan Commitments~~Commitment, the ~~Term Loan~~ Advances owing to it and ~~the~~ any Note or Notes ~~(if any)~~ held by it); provided, however, that (i) such Lender’s 's obligations under this Agreement (~~including~~ including, without limitation, its ~~Term Loan Commitments~~Commitment to any Borrower hereunder) shall remain unchanged, (ii) 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, (iv) the Company, the other Borrowers, the ~~Agents~~ Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s 's rights and obligations under this Agreement and (v) no participant under any such participation shall have any rights as a Lender hereunder, including, without limitation, any right to make any demand under Section 2.11 or 2.14 or right to approve any amendment or waiver of any provision of this Agreement or any ~~Loan Document~~Note, or any consent to any departure by the Company or any ~~Loan Party~~ other Borrower therefrom, except to the extent that such amendment, waiver or consent ~~requires~~ would reduce the ~~consent~~ principal of, or interest on, any Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, or postpone any date fixed for any payment of ~~all Lenders~~principal of, or interest on, any Notes or any fees or other amounts payable hereunder or reduce or limit the obligations of the Company under Section 7.01 or release or otherwise limit the Company's liability with respect to its obligations under Article VII or amend this Section 9.07(e) in any manner adverse to such participant, in each case to the extent subject to such participation. (hf) ~~Any~~ Each Lender may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section 8.07, disclose to the assignee or participant or proposed assignee or participant any information relating to the Borrowers furnished to such Lender by or on behalf of the Borrowers; provided, however, 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 received by it from such Lender in accordance with the terms of Section 8.09. (i) Notwithstanding any other provision set forth in this Agreement, any Lender may at any time create a security interest in all or any portion of its rights under this Agreement (including the Term Loan 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 System. (j) Notwithstanding anything to the contrary contained herein, any Lender that is a fund that invests in bank loans may create a security interest in all or any portion of the Term Loan Advances owing to it and the Note or Notes held by it to the trustee for holders of obligations owed, or securities issued, by such fund as security for such obligations or securities, provided, that unless and until such trustee actually becomes a Lender in compliance with the other provisions of this Section 8.07, (i) no such pledge shall release the pledging Lender from any of its obligations under the Loan Documents and (ii) such trustee shall not be entitled to exercise any of the rights of a Lender under the Loan Documents even though such trustee may have acquired ownership rights with respect to the pledged interest through foreclosure or otherwise. (k) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Lender”) may grant to a special purpose funding vehicle ~~identified as such in writing from time to time by the Granting Lender to the Administrative Agent and BMCA~~ (an “"SPC”") the option to ~~provide~~ fund all or any part of any ~~Term Loan~~ Advance that such ~~Granting~~ Lender ~~would otherwise be~~ is obligated to ~~make pursuant~~ fund under this Agreement (and upon the exercise by such SPC of such option to ~~this Agreement~~fund, ~~provided~~ such Lender's obligations with respect to such Advance shall be deemed satisfied to the extent of any amounts funded by such SPC); provided, however, that (i) ~~nothing herein~~ such Lender's obligations under this Agreement (including, without limitation, its Commitment to the Borrowers hereunder) shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) each Borrower, the Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender's rights and obligations under this Agreement, (iv) any such option granted to an SPC shall not constitute a commitment by ~~any~~ such SPC to fund any ~~Term Loan~~ Advance, (v) neither the grant nor the exercise of such option to an SPC shall increase the costs or expenses or otherwise increase or change the obligations of any Borrower under this Agreement (including, without limitation, its obligations under Section 2.14) and (iivi) ~~if an~~ no SPC ~~elects not~~ shall have any right to ~~exercise such option~~ approve any amendment or ~~otherwise fails to make all~~ waiver of any provision of this Agreement or any ~~part of such Term Loan Advance~~Note, ~~the Granting Lender shall be obligated~~ or any consent to ~~make such Term Loan Advance pursuant~~ any departure by any Borrower therefrom, except to the ~~terms hereof. The making of an Advance by an SPC hereunder shall utilize~~ extent that such amendment, waiver or consent would reduce the ~~Term Loan Commitment of the Granting Lender~~ principal of, or interest on, such Note or any fees or other amounts payable hereunder, in each case to the ~~same extent~~extent subject to such grant of funding option, ~~and as if~~or postpone any date fixed for any payment of principal of, or interest on, such ~~Term Loan Advance were made by~~ Note or any fees or other amounts payable hereunder, in each case to the extent subject to such ~~Granting Lender~~grant of funding option. Each party ~~hereto~~ to this Agreement hereby agrees that ~~(i)~~ no SPC shall be liable for any indemnity or ~~similar~~ payment ~~obligation~~ under this Agreement for which a Lender would otherwise be liable, (ii) no SPC shall be entitled to the benefits of Sections 2.09 and 2.11 (or any other increased costs protection provision) and (iii) the Granting Bank shall for all purposes, including the approval of any amendment or waiver of any provision of any Loan Document, remain the Lender of record hereunder. In furtherance of the foregoing, each party hereto hereby agrees (which ~~agreement~~ agreements shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior ~~Debt~~ indebtedness of any SPC, it will not institute against, or join any other ~~person~~ Person in instituting against, such SPC any bankruptcy, reorganization, arrangement, ~~insolvency,~~ insolvency or liquidation ~~proceeding~~ proceedings under the laws of the United States or any State thereof~~. Notwithstanding anything~~ . (g) Any Lender may, in connection with any assignment, participation or grant of funding option or proposed assignment, participation or grant of funding option pursuant to this Section 9.07, disclose to the ~~contrary contained~~ assignee, participant or SPC or proposed assignee, participant or SPC, any information relating to any Borrower furnished to such Lender by or on behalf of such Borrower; provided that, prior to any such disclosure, the assignee, participant or SPC or proposed assignee, participant or SPC shall agree to preserve the confidentiality of any Borrower Information relating to any Borrower received by it from such Lender. (h) Notwithstanding any other provision set forth in this Agreement, any ~~SPC~~ Lender may ~~(i) with notice to, but without prior consent of, BMCA and the Administrative Agent and with the payment of~~ at any time create a ~~processing fee of $500 and without paying any processing fee therefor, assign~~ security interest in all or any portion of its ~~interest~~ rights under this Agreement (including, without limitation, the Advances owing to it and any Note or Notes held by it) in any Term Loan Advance to the Granting Lender and (ii) disclose on a confidential basis any non-public information relating to its funding of Term Loan Advance to any rating agency, commercial paper dealer or provider favor of any ~~surety or guarantee or credit or liquidity enhancement to such SPC. This subsection (k) may not be amended without~~ Federal Reserve Bank in accordance with Regulation A of the ~~prior written consent~~ Board of ~~each Granting Lender, all or any part~~ Governors of ~~whose Term Loan Advances are being funded by~~ the ~~SPC at the time of such amendment~~Federal Reserve System.

Appears in 1 contract

Samples: Credit Agreement (Interpublic Group of Companies Inc)

Assignments and Participations. (a) Each ~~Lender~~ Bank may, and so long as no Default shall have occurred and be continuing, if demanded by any Account Party (following a demand by such Bank pursuant to Section 2.12) upon at least five Business ~~Days’~~ Days notice to such ~~Lender~~ Bank and the Administrative Agent, will, assign to one or more Eligible ~~Assignees~~ Assignee all or a portion of its rights and obligations under this Agreement (~~including~~ including, without limitation, all or a portion of its ~~Term Loan Commitment~~LC Commitment Amount, its Letter of Credit Participating Interest Commitment and the ~~Term Loan~~ Letter of Credit Advances owing to ~~it and the Note or Notes held by~~ it); provided, however, that (i) each such assignment shall be of a uniform, and not a varying, percentage of all rights and obligations ~~under this Agreement~~of such Bank hereunder, except for any non-pro rata assignment made by a Downgraded Bank after a request by the Issuing Bank pursuant to Section 2.14 (and any subsequent non-pro rata assignment of the interest so assigned or by the Downgraded Bank) and any other non-pro rata assignment approved by the Administrative Agent and any Account Party, (ii) except in the case of an assignment to a Person that, immediately prior to such assignment, was a ~~Lender~~Bank, an Affiliate of any ~~Lender~~ Bank or an Approved Fund of any ~~Lender~~ Bank or an assignment of all of a ~~Lender’s~~ Bank's rights and obligations under this Agreement, the aggregate amount of the ~~Term Loan Commitments or Term Loan Advances~~ LC Commitment Amounts being assigned to such Eligible Assignee pursuant to such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $5,000,000 (or such lesser amount as shall be approved by the Administrative Agent and, so long as no Default shall have occurred and be continuing at the time of effectiveness of such assignment, BMCA)10,000,000, (iii) each such assignment shall be to an Eligible Assignee, (iv) ~~except in~~ each assignment made as a result of a demand by any Account Party pursuant to Section 2.12 shall be arranged by such Account Party after consultation with the ~~case of~~ Administrative Agent and shall be either an assignment of all of the rights and obligations of the assigning Bank under this Agreement or an assignment of a portion of such rights and obligations made concurrently with another such assignment or other such assignments that together cover all of the rights and obligations of the assigning Bank under this Agreement, (v) no Bank shall be obligated to make any such assignment as a result of a demand by any Account Party pursuant to Section 2.12 unless and until such Bank shall have received one or more payments from either such Account Party or other Eligible Assignees in an aggregate amount at least equal to the aggregate outstanding principal amount of the Advances made by such Bank, together with accrued interest thereon to the date of payment of such principal amount and all other amounts payable to such Bank under this Agreement, (vi) as a ~~Person that, immediately prior to~~ result of such assignment, ~~was a Lender~~no Account Party shall be subject to additional amounts under Section 2.06 or 2.08, ~~to one of its Affiliates,~~ (vii) no such ~~assignments~~ assignment shall be permitted without the consent of the Administrative Agent and, so long as no Default shall have occurred and be ~~continuing at~~ continuing, the ~~time of effectiveness of such assignment, BMCA~~ Parent (~~in each case,~~ which consents shall not be unreasonably withheld) and (vviii) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together with ~~any Note or Notes subject to such assignment and~~ a processing and recordation fee of $~~3,500~~2,500.00. (b) Upon such execution, delivery, acceptance and recording, from and after the effective date specified in such 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, have the rights and obligations of a ~~Lender~~ Bank, hereunder and (ii) the ~~Lender~~ Bank assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (other than its rights under Sections ~~2.09~~2.06, ~~2.11~~ 2.08 and ~~8.04~~ 9.04 to the extent any claim thereunder relates to an event arising prior to such assignment) and be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all of the remaining portion of an assigning ~~Lender’s~~ Bank's rights and obligations under this Agreement, such ~~Lender~~ Bank shall cease to be a party hereto). (c) By executing and delivering an Assignment and Acceptance, each ~~Lender~~ Bank assignor thereunder and each assignee thereunder confirm to and agree with each other and the other parties thereto and hereto as follows: (i) 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 or representations made in or in connection with any Loan Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value of, or the perfection or priority of any lien or security interest created or purported to be created under or in connection with, any Loan Document or any other instrument or document furnished pursuant thereto; (ii) such assigning ~~Lender~~ Bank makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party or the performance or observance by any Loan Party of any of its obligations under any Loan Document or any other instrument or document furnished pursuant thereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 4.01 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) such assignee will, independently and without reliance upon any 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, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) such assignee confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes each Agent to take such action as agent on its behalf and to exercise such powers and discretion under the Loan Documents as are delegated to such Agent by the terms hereof and thereof, together with such powers and discretion as are reasonably incidental thereto; and (vii) such assignee agrees that it will perform in accordance with their terms all of the obligations that by the terms of this Agreement are required to be performed by it as a ~~Lender~~Bank. (d) The Administrative ~~Agent~~ Agent, acting for this purpose (but only for this purpose) as the agent of the ~~Borrowers~~Account Parties, shall maintain at its address referred to in Section ~~8.02~~ 9.02 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 ~~Lenders~~ Banks and the ~~Term Loan~~ LC Commitment Amount of, and principal amount of the ~~Term Loan~~ Advances owing to, each ~~Lender~~ Bank from time to time (the “"Register”"). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the ~~Borrowers~~Account Parties, the Agents and the ~~Lenders~~ Banks shall treat each Person whose name is recorded in the Register as a ~~Lender~~ Bank hereunder for all purposes of this Agreement. The Register shall be available for inspection by ~~the Borrowers~~ any Account Party or any Agent or any ~~Lender~~ Bank at any reasonable time and from time to time upon reasonable prior notice. (e) Notwithstanding anything to the contrary contained in clause (b) above, the Term Loan Advances (including the Notes evidencing such Term Loan Advances) are registered obligations and the right, title, and interest of the Lenders and their assignees in and to such Term Loan Advances shall be transferable only upon notation of such transfer in the Register. A Note shall only evidence the Lender’s or an assignee’s right title and interest in and to the related Term Loan Advance, and in no event is any such Note to be considered a bearer instrument or obligation. This Section 8.07 shall be construed so that the Term Loan Advances are at all times maintained in “registered form” within the meaning of sections 163(f), 871(h)(2) and 881(c)(2) of the Internal Revenue Code and any related regulations (or any successor provisions of the Internal Revenue Code or such regulations). Solely for purposes of this and for tax purposes only, the Administrative Agent shall act as each Borrower’s agent for purposes of maintaining such notations of transfer in the Register. (f) Upon its receipt of an Assignment and Acceptance executed by an assigning ~~Lender~~ Bank and an assignee~~, together with any Note or Notes subject to such assignment~~, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit C hereto, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to ~~BMCA and each other Agent. In~~ the case of any assignment by a Lender, within five Business Days after its receipt of such notice, the Borrowers, at their own expense, shall, if requested by the assignee, execute and deliver to the Administrative Agent in exchange for the surrendered Note or Notes an amended and restated Note (which shall be marked “Amended and Restated”) to the order of such Eligible Assignee in an amount equal to the Term Loan Commitment assumed by it under each Facility pursuant to such Assignment and Acceptance and, if any assigning Lender has retained a Term Loan Commitment hereunder under such Facility and has requested a replacement Note, an amended and restated Note to the order of such assigning Lender in an amount equal to the Term Loan Commitment retained by it hereunder. Such amended and restated 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 Assignment and Acceptance and shall otherwise be in substantially the form of Exhibit A heretoParent. (gf) Each ~~Lender~~ Bank may sell participations to one or more Persons (other than any Loan Party or any of its Affiliates) in or to all or a portion of its rights and obligations under this Agreement (~~including~~ including, without limitation, all or a portion of its ~~Term Loan Commitments~~LC Commitment Amount, its Letter of Credit Participating Interest Commitment and the ~~Term Loan~~ Advances owing to ~~it and the Note or Notes (if any) held by~~ it); provided, however, that (i) such ~~Lender’s~~ Bank's obligations under this Agreement (~~including~~ including, without limitation, its ~~Term Loan Commitments~~Letter of Credit Participating Interest Commitment) shall remain unchanged, (ii) such ~~Lender~~ Bank 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, (iv) the Borrowers~~Account Parties, the Agents and the other ~~Lenders~~ Banks shall continue to deal solely and directly with such ~~Lender~~ Bank in connection with such ~~Lender’s~~ Bank's rights and obligations under this Agreement and (viv) no participant under any such participation shall have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent ~~requires~~ would reduce the ~~consent~~ principal of, or interest on, reimbursement obligations or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, postpone any date fixed for any payment of ~~all Lenders~~principal of, or interest on, the reimbursement obligations or any fees or other amounts payable hereunder, in each case to the extent subject to such participation. Each Bank shall, as agent of the Account Parties solely for the purposes of this Section, record in book entries maintained by such Bank, the name and amount of the participating interest of each Person entitled to receive payments in respect of any participating interests sold pursuant to this Section. (hg) Any ~~Lender~~ Bank may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section ~~8.07~~9.07, disclose to the assignee or participant or proposed assignee or participant any information relating to ~~the Borrowers~~ any Account Party furnished to such ~~Lender~~ Bank by or on behalf of ~~the Borrowers~~any Account Party; provided, however, 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 received by it from such ~~Lender in accordance with the terms of Section 8.09~~Bank. (ih) Notwithstanding any other provision set forth in this Agreement, any ~~Lender~~ Bank may at any time create a security interest in all or any portion of its rights under this Agreement (~~including~~ including, without limitation, the ~~Term Loan~~ 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 System. (j) Notwithstanding anything to the contrary contained herein, any Lender that is a fund that invests in bank loans may create a security interest in all or any portion of the Term Loan Advances owing to it and the Note or Notes held by it to the trustee for holders of obligations owed, or securities issued, by such fund as security for such obligations or securities, provided, that unless and until such trustee actually becomes a Lender in compliance with the other provisions of this Section 8.07, (i) no such pledge shall release the pledging Lender from any of its obligations under the Loan Documents and (ii) such trustee shall not be entitled to exercise any of the rights of a Lender under the Loan Documents even though such trustee may have acquired ownership rights with respect to the pledged interest through foreclosure or otherwise. (k) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Lender”) may grant to a special purpose funding vehicle identified as such in writing from time to time by the Granting Lender to the Administrative Agent and BMCA (an “SPC”) the option to provide all or any part of any Term Loan Advance that such Granting Lender would otherwise be obligated to make pursuant to this Agreement, provided that (i) nothing herein shall constitute a commitment by any SPC to fund any Term Loan Advance, and (ii) if an SPC elects not to exercise such option or otherwise fails to make all or any part of such Term Loan Advance, the Granting Lender shall be obligated to make such Term Loan Advance pursuant to the terms hereof. The making of an Advance by an SPC hereunder shall utilize the Term Loan Commitment of the Granting Lender to the same extent, and as if, such Term Loan Advance were made by such Granting Lender. Each party hereto hereby agrees that (i) no SPC shall be liable for any indemnity or similar payment obligation under this Agreement for which a Lender would be liable, (ii) no SPC shall be entitled to the benefits of Sections 2.09 and 2.11 (or any other increased costs protection provision) and (iii) the Granting Bank shall for all purposes, including the approval of any amendment or waiver of any provision of any Loan Document, remain the Lender of record hereunder. In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior Debt of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency, or liquidation proceeding under the laws of the United States or any State thereof. Notwithstanding anything to the contrary contained in this Agreement, any SPC may (i) with notice to, but without prior consent of, BMCA and the Administrative Agent and with the payment of a processing fee of $500 and without paying any processing fee therefor, assign all or any portion of its interest in any Term Loan Advance to the Granting Lender and (ii) disclose on a confidential basis any non-public information relating to its funding of Term Loan Advance to any rating agency, commercial paper dealer or provider of any surety or guarantee or credit or liquidity enhancement to such SPC. This subsection (k) may not be amended without the prior written consent of each Granting Lender, all or any part of whose Term Loan Advances are being funded by the SPC at the time of such amendment.

Appears in 1 contract

Samples: Reimbursement Agreement (Ace LTD)

Assignments and Participations. (a) Each Lender may, upon ten days’ notice to the Agent (and in the case of an assignment of any Swing Line Commitment, the Sub-Agent) and with the prior consent of each Swing Line Lender (in the case of any assignment of any Revolving Credit Commitment) and the Company (which consents shall not be unreasonably withheld or delayed) and, if demanded by the Company pursuant to Section 2.05 (b) or 2.06(b), upon at least ~~five~~ 20 Business Days’ notice to such Lender and the ~~Administrative~~ Agent, will assign to one or more ~~Eligible Assignees~~ Persons all or a portion of its rights and obligations under this Agreement (~~including~~ including, without limitation, all or a portion of its ~~Term Loan~~ Revolving Credit Commitment, the ~~Term Loan~~ Revolving Credit Advances owing to it and the Revolving Credit Note or Notes held by it or, in the case of a Swing Line Lender, all or a portion of its Swing Line Commitment and the Swing Line Advances owing to it); provided, however, that (i) each such assignment shall be of a ~~uniform~~constant, and not a varying, percentage of all rights and obligations under this Agreement, (ii) except in the case of an assignment to a Person that, immediately prior to such assignment, was a ~~Lender, an Affiliate of any~~ Lender or an ~~Approved Fund~~ affiliate of ~~any Lender~~ a Lender, or an assignment of all of a Lender’s rights and obligations under this Agreement, the ~~aggregate~~ amount of the ~~Term Loan Commitments~~ Revolving Credit Commitment or ~~Term Loan Advances~~ Swing Line Commitment (as applicable) of the assigning Lender being assigned ~~to such Eligible Assignee~~ pursuant to each such assignment (determined as of the date of the Assignment and ~~Acceptance~~ Assumption with respect to such assignment) shall in no event be less than $5,000,000 (or such lesser amount as shall be approved by the Administrative Agent and, so long as no Default shall have occurred and be continuing at the time of effectiveness of such assignment, BMCA)10,000,000, (iii) each such assignment shall be to an Eligible Assignee, (iv) ~~except in~~ each such assignment made as a result of a demand by the ~~case of~~ Company pursuant to this Section 8.07(a) shall be arranged by the Company after consultation with the Agent and shall be either an assignment of all of the rights and obligations of the assigning Lender under this Agreement or an assignment of a portion of such rights and obligations made concurrently with another such assignment or other such assignments that together cover all of the rights and obligations of the assigning Lender under this Agreement, (v) no Lender shall be obligated to make any such assignment as a result of a demand by ~~a Person that, immediately prior~~ the Company pursuant to this Section 8.07(a) unless and until such Lender shall have received one or more payments from either the Company or one or more Eligible Assignees in an aggregate amount at least equal to the aggregate outstanding principal amount of the Advances owing to such ~~assignment, was a~~ Lender, together with accrued interest thereon to ~~one~~ the date of ~~its Affiliates, no such assignments shall be permitted without the consent of the Administrative Agent and, so long as no Default shall have occurred and be continuing at the time of effectiveness~~ payment of such ~~assignment~~principal amount and all other amounts payable to such Lender under this Agreement, ~~BMCA~~ (~~in each case, which consents shall not be unreasonably withheld) and (v~~vi) the parties to each such assignment shall execute and deliver to the ~~Administrative~~ Agent, for its acceptance and recording in the ~~Register~~Register (as defined in clause (d) below), an Assignment and ~~Acceptance~~Assumption, together with any Revolving Credit Note ~~or Notes~~ requested pursuant to Section 2.13(e) subject to such assignment and a processing and recordation fee of $3,500. , and (bvii) the Eligible Assignee shall complete, execute and deliver to the Borrowers and Agent the appropriate tax form pursuant to Section 2.14. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in ~~such~~ each Assignment and ~~Acceptance~~Assumption and upon compliance with clause (vii) of the previous sentence, (ix) 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~~Assumption, have the rights and obligations of a Lender hereunder and (iiy) the Lender assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and ~~Acceptance~~Assumption, relinquish its rights ~~(other than its rights under Sections 2.09, 2.11 and 8.04 to the extent any claim thereunder relates to an event arising prior to such assignment)~~ and be released from its obligations under this Agreement (and, in the case of an Assignment and ~~Acceptance~~ Assumption covering all of or the remaining portion of an assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto); provided that an assigning Lender’s rights to indemnification and reimbursement pursuant to Section 8.04 and its rights and obligations under Sections 2.11 and 2.14 shall survive assignment hereunder. Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Lender”) may grant to a special purpose vehicle (an “SPV”) of such Granting Lender, identified as such in writing from time to time by the Granting Lender to the Agent and the Company, the option to provide to the Borrowers all or any part of any Advance that such Granting Lender would otherwise be obligated to make to the Borrowers pursuant to Section 2.01, provided that (i) nothing herein shall constitute a commitment by any SPV to make any Advance, (ii) if an SPV elects not to exercise such option or otherwise fails to provide all or any part of such Advance, the Granting Lender shall be obligated to make such Advance pursuant to the terms hereof and (iii) the Borrowers may bring any proceeding against either the Granting Lender or the SPV in order to enforce any rights of the Borrowers hereunder. The making of an Advance by an SPV hereunder shall utilize the Commitment of the Granting Lender to the same extent, and as if, such Advance were made by the Granting Lender. Each party hereto hereby agrees that no SPV shall be liable for any payment under this Agreement for which a Lender would otherwise be liable, for so long as, and to the extent, the related Granting Lender makes such payment. In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior indebtedness of any SPV, it will not institute against, or join any other person in instituting against, such SPV any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings or similar proceedings under the laws of the United States or any State thereof arising out of any claim against such SPV under this Agreement. In addition, notwithstanding anything to the contrary contained in this Section, any SPV may with notice to, but without the prior written consent of, the Company or the Agent and without paying any processing fee therefor, assign all or a portion of its interests in any Advances to its Granting Lender or to any financial institutions (consented to by the Company and the Agent) providing liquidity and/or credit support (if any) with respect to commercial paper issued by such SPV to fund such Advances and such SPV may disclose, on a confidential basis, confidential information with respect to the Company and its Subsidiaries to any rating agency, commercial paper dealer or provider of a surety, guarantee or credit liquidity enhancement to such SPV. This paragraph may not be amended without the consent of any SPV at the time holding Advances under this Agreement. (cb) By executing and delivering an Assignment and ~~Acceptance~~Assumption, ~~each~~ the Lender assignor thereunder and ~~each~~ the assignee thereunder confirm to and agree with each other and the other parties ~~thereto and~~ hereto as follows: (i) other than as provided in such Assignment and ~~Acceptance~~Assumption, 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 ~~any Loan Document~~ this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of, or the perfection or priority of any lien or security interest created or purported to be created under or in connection with, ~~any Loan Document~~ this Agreement or any other instrument or document furnished pursuant ~~thereto~~hereto; (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any ~~Loan Party~~ Borrower or the performance or observance by any ~~Loan Party~~ Borrower of any of its obligations under ~~any Loan Document~~ this Agreement or any other instrument or document furnished pursuant ~~thereto~~hereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 4.01 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and ~~Acceptance~~Assumption; (iv) such assignee will, independently and without reliance upon ~~any~~ the Agent, such assigning Lender or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) such assignee confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes ~~each~~ the Agent to take such action as agent on its behalf and to exercise such powers and discretion under ~~the Loan Documents~~ this Agreement as are delegated to ~~such~~ the Agent by the terms ~~hereof and thereof~~hereof, together with such powers and discretion as are reasonably incidental thereto; and (vii) such assignee agrees that it will perform in accordance with their terms all of the obligations that by the terms of this Agreement are required to be performed by it as a Lender. (c) Upon its receipt of an Assignment and Assumption executed by an assigning Lender and an assignee representing that it is an Eligible Assignee, together with any Revolving Credit Note or Notes subject to such assignment, the Agent shall, if such Assignment and Assumption has been completed and is in substantially the form of Exhibit C hereto, (i) accept such Assignment and Assumption, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the Company. The relevant Borrower, at its own expense, shall if so requested pursuant to Section 2.13(e) execute and deliver to the Agent in exchange for the surrendered Revolving Credit Note a new Revolving Credit Note to the order of such Eligible Assignee in an amount equal to the Commitment assumed by it pursuant to such Assignment and Assumption and, if the assigning Lender has retained a Commitment hereunder, a new Revolving Credit Note to the order of the assigning Lender in an amount equal to the Commitment retained by it hereunder. Such new Revolving Credit Note or Notes shall be in an aggregate principal amount equal to the aggregate principal amount of such surrendered Revolving Credit Note or Notes, shall be dated the effective date of such Assignment and Assumption and shall otherwise be in substantially the form of Exhibit A hereto. (d) The ~~Administrative~~ Agent acting solely for this purpose ~~(but only for this purpose)~~ as ~~the~~ a nonfiduciary agent of the ~~Borrowers,~~ relevant Borrower shall maintain at its address referred to in Section 8.02 if such address is within the United States and, if not, at one of its offices located within the United States a copy of each Assignment and ~~Acceptance~~ Assumption delivered to and accepted by it and a register for the recordation of the names and addresses of the Lenders ~~and~~ and, with respect to Lenders, the ~~Term Loan~~ Commitment of, and principal amount of the ~~Term Loan~~ 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 Borrowers~~each Borrower, the ~~Agents~~ Agent and the Lenders ~~shall~~ 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~~ Company or any ~~Agent or any Lender~~ Lender, as to its Commitment, at any reasonable time and from time to time upon reasonable prior notice. (e) ~~Notwithstanding anything~~ Each Lender may, with the prior consent of the Company (which consent shall not be unreasonably withheld or delayed), upon notice to the ~~contrary contained in clause (b) above~~Agent, the Term Loan Advances (including the Notes evidencing such Term Loan Advances) are registered obligations and the right, title, and interest of the Lenders and their assignees in and to such Term Loan Advances shall be transferable only upon notation of such transfer in the Register. A Note shall only evidence the Lender’s or an assignee’s right title and interest in and to the related Term Loan Advance, and in no event is any such Note to be considered a bearer instrument or obligation. This Section 8.07 shall be construed so that the Term Loan Advances are at all times maintained in “registered form” within the meaning of sections 163(f), 871(h)(2) and 881(c)(2) of the Internal Revenue Code and any related regulations (or any successor provisions of the Internal Revenue Code or such regulations). Solely for purposes of this and for tax purposes only, the Administrative Agent shall act as each Borrower’s agent for purposes of maintaining such notations of transfer in the Register. (f) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee, together with any Note or Notes subject to such assignment, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit C hereto, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to BMCA and each other Agent. In the case of any assignment by a Lender, within five Business Days after its receipt of such notice, the Borrowers, at their own expense, shall, if requested by the assignee, execute and deliver to the Administrative Agent in exchange for the surrendered Note or Notes an amended and restated Note (which shall be marked “Amended and Restated”) to the order of such Eligible Assignee in an amount equal to the Term Loan Commitment assumed by it under each Facility pursuant to such Assignment and Acceptance and, if any assigning Lender has retained a Term Loan Commitment hereunder under such Facility and has requested a replacement Note, an amended and restated Note to the order of such assigning Lender in an amount equal to the Term Loan Commitment retained by it hereunder. Such amended and restated 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 Assignment and Acceptance and shall otherwise be in substantially the form of Exhibit A hereto. (g) Each Lender may sell participations to one or more ~~Persons (~~banks or other ~~than any Loan Party or any of its Affiliates)~~ entities in or to all or a portion of its rights and obligations under this Agreement (~~including~~ including, without limitation, all or a portion of its ~~Term Loan Commitments~~Commitment, the ~~Term Loan~~ Advances owing to it (including such Lender’s participations in Swing Line Advances) and the Note or Notes ~~(if any)~~ held by it); provided, however, that (i) such Lender’s obligations under this Agreement (~~including~~ including, without limitation, its ~~Term Loan Commitments~~Commitment hereunder) shall remain unchanged, (ii) 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, (iv) the Borrowers, the ~~Agents~~ Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and (v) no participant under any such participation shall have any right to approve any amendment or waiver of any provision of this Agreement or any ~~Loan Document~~Note, or any consent to any departure by any ~~Loan Party~~ Borrower therefrom, except to the extent that such amendment, waiver or consent ~~requires~~ would reduce the ~~consent~~ principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, postpone any date fixed for any payment of principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation or release the Company from its obligations hereunder, including, without limitation, its obligations under Article IX. Each Lender that sells a participation shall, acting solely for this purpose as a nonfiduciary agent of the relevant Borrower, maintain a register at one of its offices located within the United States on which it enters the name and address of each participant and the Commitment of, and principal amount of the Advances owing to, each participant from time to time (the “Participant Register”); provided that no Lender shall have any obligation to disclose all ~~Lenders~~or any portion of the Participant Register to any Person (including the identity of any participant or any information relating to a participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive and binding, 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. (hf) Any Lender may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section 8.07, disclose to the assignee or participant or proposed assignee or participant any information relating to ~~the Borrowers~~ any Borrower furnished to such Lender by or on behalf of ~~the Borrowers~~any Borrower; ~~provided, however,~~ 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 Borrowers received by it from such ~~Lender in accordance with the terms of Section 8.09~~Lender. (ig) Notwithstanding any other provision set forth in this Agreement, any Lender may at any time create a security interest in all or any portion of its rights under this Agreement (~~including~~ including, without limitation, the ~~Term Loan~~ 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 System. (j) Notwithstanding anything to the contrary contained herein, any Lender that is a fund that invests in bank loans may create a security interest in all or any portion of the Term Loan Advances owing to it and the Note or Notes held by it to the trustee for holders of obligations owed, or securities issued, by such fund as security for such obligations or securities, provided, that unless and until such trustee actually becomes a Lender in compliance with the other provisions of this Section 8.07, (i) no such pledge shall release the pledging Lender from any of its obligations under the Loan Documents and (ii) such trustee shall not be entitled to exercise any of the rights of a Lender under the Loan Documents even though such trustee may have acquired ownership rights with respect to the pledged interest through foreclosure or otherwise. (k) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Lender”) may grant to a special purpose funding vehicle identified as such in writing from time to time by the Granting Lender to the Administrative Agent and BMCA (an “SPC”) the option to provide all or any part of any Term Loan Advance that such Granting Lender would otherwise be obligated to make pursuant to this Agreement, provided that (i) nothing herein shall constitute a commitment by any SPC to fund any Term Loan Advance, and (ii) if an SPC elects not to exercise such option or otherwise fails to make all or any part of such Term Loan Advance, the Granting Lender shall be obligated to make such Term Loan Advance pursuant to the terms hereof. The making of an Advance by an SPC hereunder shall utilize the Term Loan Commitment of the Granting Lender to the same extent, and as if, such Term Loan Advance were made by such Granting Lender. Each party hereto hereby agrees that (i) no SPC shall be liable for any indemnity or similar payment obligation under this Agreement for which a Lender would be liable, (ii) no SPC shall be entitled to the benefits of Sections 2.09 and 2.11 (System or any other increased costs protection provision) and (iii) the Granting Bank shall for all purposes, including the approval of any amendment or waiver of any provision of any Loan Document, remain the Lender of record hereunder. In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior Debt of any SPC, it will not institute against, or join any other person in instituting against, central bank having jurisdiction over such SPC any bankruptcy, reorganization, arrangement, insolvency, or liquidation proceeding under the laws of the United States or any State thereof. Notwithstanding anything to the contrary contained in this Agreement, any SPC may (i) with notice to, but without prior consent of, BMCA and the Administrative Agent and with the payment of a processing fee of $500 and without paying any processing fee therefor, assign all or any portion of its interest in any Term Loan Advance to the Granting Lender and (ii) disclose on a confidential basis any non-public information relating to its funding of Term Loan Advance to any rating agency, commercial paper dealer or provider of any surety or guarantee or credit or liquidity enhancement to such SPC. This subsection (k) may not be amended without the prior written consent of each Granting Lender~~, all or any part of whose Term Loan Advances are being funded by the SPC at the time of such amendment~~.

Appears in 1 contract

Samples: Credit Agreement (Pepsico Inc)

Assignments and Participations. (a) Each Lender ~~may~~may and, so long as no Default shall have occurred and be continuing, if demanded by the Administrative Borrower pursuant to Section 2.07(d) upon at least five Business Days’ notice to such Lender and the Administrative Agent, will assign to one or more Eligible Assignees all or a portion of its rights and obligations under this Agreement (~~including~~ including, without limitation, all or a portion of its ~~Term Loan Commitment~~Commitment or Commitments, the Term ~~Loan Advances~~ Loans owing to it and the Note or Notes held by it); provided, however, that (i~~) each such assignment shall be of a uniform, and not a varying, percentage of all rights and obligations under this Agreement, (ii~~) except in the case of an assignment to a Person that, immediately prior to such assignment, was a Lender, an Affiliate of any Lender or an Approved Fund of any Lender or an assignment of all of a Lender’s rights and obligations under this Agreement, the aggregate amount of the ~~Term Loan~~ Commitments ~~or Term Loan Advances~~ being assigned to such Eligible Assignee pursuant to such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $~~5,000,000~~ 1,000,000 (or such lesser amount as shall be approved by the Administrative Agent and, except during the initial syndication of the Commitments and the Term Loans, so long as no Default shall have occurred and be continuing at the time of effectiveness of such assignment, ~~BMCA~~the Administrative Borrower), (~~iii~~ii) each such assignment shall be to an Eligible Assignee, (iviii) ~~except in~~ each such assignment made as a result of a demand by the ~~case of an assignment by a Person that, immediately prior~~ Administrative Borrower pursuant to ~~such assignment, was a Lender, to one of its Affiliates, no such assignments~~ Section 2.07(d) shall be ~~permitted without~~ arranged by the ~~consent of~~ Borrowers after consultation with the Administrative Agent ~~and~~and shall be either an assignment of all of the rights and obligations of the assigning Lender under this Agreement or an assignment of a portion of such rights and obligations made concurrently with another such assignment or other such assignments that together cover all of the rights and obligations of the assigning Lender under this Agreement, ~~so long~~ (iv) no Lender shall be obligated to make any such assignment as ~~no Default~~ a result of a demand by the Administrative Borrower pursuant to Section 2.07(d) unless and until such Lender shall have ~~occurred and be continuing~~ received one or more payments from either the Borrowers or one or more Eligible Assignees in an aggregate amount at least equal to the ~~time~~ aggregate outstanding principal amount of ~~effectiveness~~ the Term Loans owing to such Lender, together with accrued interest thereon to the date of payment of such ~~assignment~~principal amount and all other amounts payable to such Lender under this Agreement, ~~BMCA (in each case, which consents shall not be unreasonably withheld)~~ and (v) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, ~~together with~~ and shall deliver any Note or Notes (if any) subject to such assignment (provided such delivery may occur after an assignment is effective), and shall pay a processing and recordation fee of $3,500; provided, however, that for each such assignment made as a result of a demand by the Administrative Borrower pursuant to Section 2.07(d), the Borrowers shall pay to the Administrative Agent the applicable processing and recordation fee. (b) Upon such execution, delivery, acceptance and recording, from and after the effective date specified in such 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, have the rights and obligations of a Lender hereunder and (ii) the Lender assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (other than its rights under ~~Sections 2.09, 2.11~~ Section 2.07 and ~~8.04~~ Section 2.09 to the extent any claim thereunder relates to an event arising prior to such assignment) and be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all of the remaining portion of an assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto). (c) By executing and delivering an Assignment and Acceptance, each Lender assignor thereunder and each assignee thereunder confirm to and agree with each other and the other parties thereto and hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with any Loan Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value of, or the perfection or priority of any lien or security interest created or purported to be created under or in connection with, any Loan Document or any other instrument or document furnished pursuant thereto; (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party or the performance or observance by any Loan Party of any of its obligations under any Loan Document or any other instrument or document furnished pursuant thereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 4.01 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) such assignee will, independently and without reliance upon any Agent, such assigning Lender or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) such assignee confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes each Agent to take such action as agent on its behalf and to exercise such powers and discretion under the Loan Documents as are delegated to such Agent by the terms hereof and thereof, together with such powers and discretion as are reasonably incidental thereto; and (vii) such assignee agrees that it will perform in accordance with their terms all of the obligations that by the terms of this Agreement are required to be performed by it as a Lender. (d) The Term Loans shall be issued in registered form and shall be transferable only upon a register (the “Register”) maintained by the Administrative Agent as Registrar (the “Registrar”), acting solely for this purpose ~~(but only for this purpose)~~ as ~~the~~ an agent of the Borrowers, . The Registrar shall maintain the Register at its address referred to in Section ~~8.02 a copy of each Assignment and Acceptance delivered to and accepted by it and a register~~ 9.02 for the recordation of the names and addresses of the ~~Lenders and the Term Loan Commitment of, and principal amount~~ owners of the Term ~~Loan Advances to, each Lender~~ Loans and any related Notes from time to ~~time~~ time. The Registrar shall record each transfer of the Term Loans and any related Notes to a transferee on the Register upon written notification by the registered owner of such transfer (with the ~~“Register”~~Registrar being allowed to rely conclusively on any such notification). The entries in the Register shall be ~~conclusive and binding for all purposes, absent manifest error~~conclusive, and the Borrowers, the Agents and Lenders may deem and treat the ~~Lenders shall treat each~~ Person whose name is recorded in the Register pursuant to the terms hereof as ~~a Lender hereunder~~ the owner of the Term Loans and any related Notes for the purpose of receiving payment of, or on account of, the principal and interest due on the Loans and any related Notes and for all ~~purposes~~ other purposes, notwithstanding notice to the contrary; provided that, failure to make any such recordation, or any error in such recordation, shall not affect any Lender’s Commitments or Borrower’s Obligations in respect of ~~this Agreement~~any Term Loan. The Register shall be available for inspection by the Borrowers ~~or any Agent or any Lender~~ and the Lenders, at any reasonable time and from time to time upon reasonable prior notice. Each Borrower hereby designates the Administrative Agent to serve as the Borrowers’ agent solely for purposes of maintaining the Register as provided in this Section 9.07, and each Borrower hereby agrees that, to the extent such entity serves in such capacity, the Administrative Agent and its affiliates, officers, directors, employees and agents shall constitute an “Indemnified Party” under Section 9.04(b). At the request of the registered owner of any Term Loan and any related Notes, the Registrar shall note a collateral assignment of such Term Loan and any related Notes on the Register and, provided that the Registrar has been given the name and address of such collateral assignee, the Registrar (i) shall not permit any further transfers of such Term Loan and any related Notes on the Register absent receipt of written consent to such transfers from such collateral assignee and (ii) shall record the transfer of such Term Loan and any related Notes on the Register to such collateral assignee (or such collateral assignee’s designee, nominee or assignee) upon written request by such collateral assignee. (e) Notwithstanding anything to the contrary contained in clause (b) above, the Term Loan Advances (including the Notes evidencing such Term Loan Advances) are registered obligations and the right, title, and interest of the Lenders and their assignees in and to such Term Loan Advances shall be transferable only upon notation of such transfer in the Register. A Note shall only evidence the Lender’s or an assignee’s right title and interest in and to the related Term Loan Advance, and in no event is any such Note to be considered a bearer instrument or obligation. This Section 8.07 shall be construed so that the Term Loan Advances are at all times maintained in “registered form” within the meaning of sections 163(f), 871(h)(2) and 881(c)(2) of the Internal Revenue Code and any related regulations (or any successor provisions of the Internal Revenue Code or such regulations). Solely for purposes of this and for tax purposes only, the Administrative Agent shall act as each Borrower’s agent for purposes of maintaining such notations of transfer in the Register. (f) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee~~, together with any Note or Notes subject to such assignment~~, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit C hereto, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to ~~BMCA~~ the Administrative Borrower and each other Agent. In the case of any assignment by a Lender, within five (5) Business Days after its receipt of such notice, the ~~Borrowers~~Administrative Borrower, at ~~their~~ its own expense, ~~shall, if requested by the assignee,~~ shall execute and deliver to the Administrative ~~Agent~~ Agent, upon receipt of and in exchange for the surrendered Note or Notes ~~an amended and restated~~ (if any) if such Note ~~(which shall be marked “Amended and Restated”) to~~ is requested by the ~~order of such~~ Eligible ~~Assignee~~ Assignee, a new Note in an amount equal to the ~~Term Loan~~ Commitment assumed by it ~~under each Facility~~ pursuant to such Assignment and Acceptance and, if any assigning Lender that had a Note or Notes prior to such assignment has retained a ~~Term Loan~~ Commitment ~~hereunder under~~ hereunder, upon such ~~Facility and has requested~~ Lender’s request a ~~replacement Note, an amended and restated~~ new Note ~~to the order of such assigning Lender~~ in an amount equal to the ~~Term Loan~~ Commitment retained by it hereunder. Such ~~amended and restated~~ 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 Assignment and Acceptance and shall otherwise be in substantially the form of Exhibit ~~A hereto.~~A. (gf) Each Lender may sell participations to one or more Persons (other than any Loan Party or any of its Affiliates) in or to all or a portion of its rights and obligations under this Agreement (~~including~~ including, without limitation, all or a portion of its ~~Term Loan~~ Commitments, the Term ~~Loan Advances~~ Loans owing to it and the Note or Notes (if any) held by it); provided, however, that (i) such Lender’s obligations under this Agreement (~~including~~ including, without limitation, its ~~Term Loan~~ Commitments) shall remain unchanged, (ii) 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, (iv) the Borrowers, the Agents and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and (v) no participant under any such participation shall have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent ~~requires~~ would reduce the ~~consent~~ principal of, or interest on, the Term Loans or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, postpone any date fixed for any payment of principal of, or interest on, the Term Loans or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, or release all ~~Lenders~~or substantially all of the Collateral or the value of the Guaranties. (hg) Any Lender may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section ~~8.07~~9.07, disclose to the assignee or participant or proposed assignee or participant any information relating to the Borrowers furnished to such Lender by or on behalf of the Borrowers; provided, however, that, prior to any such disclosure, the assignee or participant or proposed assignee or participant shall agree in writing to preserve the confidentiality of any ~~Confidential~~ Information received by it from such Lender in accordance with ~~the terms of~~ Section ~~8.09~~9.09(f). (ih) Notwithstanding any other provision set forth in this Agreement, any Lender may at any time create a security interest in all or any portion of its rights under this Agreement (~~including~~ including, without limitation, the Term ~~Loan Advances~~ Loans owing to it and the Note or Notes (if any) held by it) in favor of any Federal Reserve Bank in accordance with Regulation A of the Board of Governors of the Federal Reserve System. (ji) Notwithstanding anything to the contrary contained herein, any Lender that is a ~~fund that invests in bank loans~~ Fund may create a security interest in all or any portion of the Term ~~Loan Advances~~ Loans owing to it and ~~the~~ any Note or Notes held by it to the trustee for holders of obligations owed, or securities issued, by such ~~fund~~ Fund as security for such obligations or securities; provided that, ~~provided, that~~ unless and until such trustee actually becomes a Lender in compliance with the other provisions of this Section ~~8.07~~9.07, (i) no such pledge shall release the pledging Lender from any of its obligations under the Loan Documents and (ii) such trustee shall not be entitled to exercise any of the rights of a Lender under the Loan Documents even though such trustee may have acquired ownership rights with respect to the pledged interest through foreclosure or otherwise. (kj) ~~Notwithstanding anything~~ In addition to ~~the contrary contained herein,~~ any Lender (a “Granting Lender”) may grant to a special purpose funding vehicle identified as such in writing from time to time by the Granting Lender to the Administrative Agent and BMCA (an “SPC”) the option to provide all or any part of any Term Loan Advance that such Granting Lender would otherwise be obligated to make other assignment permitted pursuant to this ~~Agreement~~Section 9.07, ~~provided~~ the Loan Parties hereby acknowledge that (i) ~~nothing herein shall constitute~~ the Lenders, their Affiliates and Approved Funds (“Securitizing Parties”) may sell or securitize the Term Loans (a ~~commitment by any SPC~~ “Securitization”) through the pledge of the Term Loans as collateral security for loans to ~~fund any~~ a Securitizing Party or the assignment or issuance of direct or indirect interests in the Term ~~Loan Advance~~Loans (such as, for instance, collateralized loan obligations), and (ii) ~~if an SPC elects~~ such Securitization may be rated by a rating agency. The Loan Parties shall reasonably cooperate with the Securitizing Parties to effect the Securitization including, without limitation, by (A) amending this Agreement and the other Loan Documents, and executing such additional documents, as reasonably requested by the Lenders in connection with the Securitization; provided that (1) any such amendment or additional documentation does not impose material additional costs on Borrowers and (2) any such amendment or additional documentation does not materially adversely affect the rights, or materially increase the obligations, of the Borrowers under the Loan Documents or change or affect in a manner adverse to ~~exercise~~ the Borrowers the financial terms of the Term Loans, (B) providing such ~~option~~ information as may be reasonably requested by the Lenders or rating agencies in connection with the rating of the Term Loans or the Securitization, and (C) providing a certificate (1) agreeing to indemnify the Securitizing Parties, or any party providing credit support or otherwise ~~fails to make all or~~ participating in the Securitization, including any ~~part of such Term Loan Advance~~investors in a securitization entity (collectively, the Granting Lender shall be obligated to make such Term Loan Advance pursuant to the terms hereof. The making of an Advance by an SPC hereunder shall utilize the Term Loan Commitment of the Granting Lender to the same extent, and as if, such Term Loan Advance were made by such Granting Lender. Each party hereto hereby agrees that (i“Securitization Parties”) ~~no SPC shall be liable~~ for any ~~indemnity~~ losses, claims, damages or ~~similar payment obligation under this Agreement for~~ liabilities (the “Securitization Liabilities”) to which ~~a Lender would be liable, (ii) no SPC shall be entitled to~~ the ~~benefits~~ Securitizing Parties or such Securitization Parties may become subject insofar as the Securitization Liabilities arise out of ~~Sections 2.09 and 2.11 (~~or are based upon any ~~other increased costs protection provision) and (iii) the Granting Bank shall for all purposes, including the approval~~ untrue statement or alleged untrue statement of any ~~amendment~~ material fact contained in any Loan Document or ~~waiver of~~ in any ~~provision~~ writing delivered by or on behalf of any Loan ~~Document~~Party to the Securitizing Parties in connection with any Loan Document or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein, ~~remain~~ or necessary in order to make the ~~Lender of record hereunder. In furtherance~~ statements therein, in light of the ~~foregoing~~circumstances under which they were made, ~~each party hereto hereby agrees (which agreement~~ not misleading, and such indemnity shall survive any transfer by the ~~termination~~ Lenders or their successors or assigns of ~~this Agreement~~the Term Loans, and (2) ~~that, prior~~ agreeing to reimburse the ~~date that is one year~~ Loan Parties and ~~one day after~~ the ~~payment in full of all outstanding commercial paper~~ other Securitization Parties for any legal or other ~~senior Debt of any SPC, it will not institute against, or join any other person~~ expenses reasonably incurred by such Persons in ~~instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency, or liquidation proceeding under~~ connection with defending the laws of the United States or any State thereof. Notwithstanding anything to the contrary contained in this Agreement, any SPC may (i) with notice to, but without prior consent of, BMCA and the Administrative Agent and with the payment of a processing fee of $500 and without paying any processing fee therefor, assign all or any portion of its interest in any Term Loan Advance to the Granting Lender and (ii) disclose on a confidential basis any non-public information relating to its funding of Term Loan Advance to any rating agency, commercial paper dealer or provider of any surety or guarantee or credit or liquidity enhancement to such SPC. This subsection (k) may not be amended without the prior written consent of each Granting Lender, all or any part of whose Term Loan Advances are being funded by the SPC at the time of such amendmentSecuritization Liabilities.

Appears in 1 contract

Samples: Senior Secured Debtor in Possession Credit Agreement (TLC Vision Corp)

Assignments and Participations. (a) Each Lender ~~may, upon at least five Business Days’ notice to such Lender and the Administrative Agent,~~ may assign to one or more Eligible Assignees all or a portion of its rights and obligations under this Agreement (~~including~~ including, without limitation, all or a portion of its ~~Term Loan Commitment~~Commitment or Commitments, the ~~Term Loan~~ Advances owing to it and the Note or Notes held by it); provided, however, that (i) each such assignment shall be of a uniform, and not a varying, percentage of all rights and obligations under ~~this Agreement~~and in respect of any or all Facilities, (ii) except in the case of an assignment to a Person that, immediately prior to such assignment, was a Lender, an Affiliate of any Lender or an Approved Fund of any Lender or an assignment of all of a Lender’s 's rights and obligations under this Agreement, the aggregate amount of the ~~Term Loan~~ Commitments ~~or Term Loan Advances~~ being assigned to such Eligible Assignee pursuant to such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $~~5,000,000~~ 1,000,000 (except in the case of assignments by an Approved Fund to one or more of its Affiliates, so long as the aggregate amount of the Commitments assigned to such Affiliates is not less than $1,000,000) and shall be in an integral multiple of $500,000 (or such lesser amount as shall be approved by the Administrative ~~Agent and, so long as no Default shall have occurred and be continuing at the time of effectiveness of such assignment, BMCA)~~Agent) under each Facility for which a Commitment is being assigned, (iii) each such assignment shall be to an Eligible Assignee, (iv) ~~except in the case of an assignment by a Person that, immediately prior to such assignment, was a Lender, to one of its Affiliates,~~ no such assignments shall be permitted without the consent of the ~~Administrative Agent and, so long as no~~ Borrower (unless a Default shall have occurred and be ~~continuing at the time of effectiveness of such assignment, BMCA (in each case~~continuing), which ~~consents~~ consent shall not be unreasonably withheld) , and of the Administrative Agent until the Administrative Agent shall have notified the Lender Parties that syndication of the Commitments hereunder has been completed and (v) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together with any Note or Notes subject to such assignment and a processing and recordation fee of $3,500. (b) Upon such execution, delivery, acceptance and recording, from and after the effective date specified in such 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, have the rights and obligations of a Lender or Issuing Bank, as the case may be, hereunder and (ii) the Lender or Issuing Bank assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (other than its rights under Sections ~~2.09~~2.10, ~~2.11~~ 2.12 and ~~8.04~~ 9.04 to the extent any claim thereunder relates to an event arising prior to such assignment) and be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all of the remaining portion of an assigning Lender’s 's or Issuing Bank's rights and obligations under this Agreement, such Lender or Issuing Bank shall cease to be a party hereto). (c) By executing and delivering an Assignment and Acceptance, each Lender Party assignor thereunder and each assignee thereunder ~~confirm~~ confirms to and ~~agree~~ agrees with each other and the other parties thereto and hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender Party makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with any Loan Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value of, or the perfection or priority of any lien or security interest created or purported to be created under or in connection with, any Loan Document or any other instrument or document furnished pursuant thereto; (ii) such assigning Lender Party makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party or the performance or observance by any Loan Party of any of its obligations under any Loan Document or any other instrument or document furnished pursuant thereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 4.01 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) such assignee will, independently and without reliance upon ~~any~~ the Administrative Agent, such assigning Lender Party or any other Lender Party and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) such assignee confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes ~~each~~ the Administrative Agent to take such action as agent on its behalf and to exercise such powers and discretion under the Loan Documents as are delegated to ~~such~~ the Administrative Agent by the terms hereof and thereof, together with such powers and discretion as are reasonably incidental thereto; and (vii) such assignee agrees that it will perform in accordance with their terms all of the obligations that by the terms of this Agreement are required to be performed by it as a ~~Lender~~Lender or the Issuing Bank, as the case may be. (d) The Administrative Agent ~~acting for this purpose (but only for this purpose) as the agent of the Borrowers,~~ shall maintain at its address referred to in Section ~~8.02~~ 9.02 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 ~~Lenders~~ Lender Parties and the ~~Term Loan~~ Commitment under each Facility of, and principal amount of the ~~Term Loan~~ Advances owing under each Facility to, each Lender Party from time to time (the ~~“Register”~~"REGISTER"). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the ~~Borrowers~~Borrower, the ~~Agents~~ Administrative Agent and the ~~Lenders shall~~ Lender Parties may treat each Person whose name is recorded in the Register as a Lender Party hereunder for all purposes of this Agreement. The Register shall be available for inspection by the ~~Borrowers~~ Borrower or ~~any~~ the Administrative Agent or any Lender Party at any reasonable time and from time to time upon reasonable prior notice. (e) Notwithstanding anything to the contrary contained in clause (b) above, the Term Loan Advances (including the Notes evidencing such Term Loan Advances) are registered obligations and the right, title, and interest of the Lenders and their assignees in and to such Term Loan Advances shall be transferable only upon notation of such transfer in the Register. A Note shall only evidence the Lender’s or an assignee’s right title and interest in and to the related Term Loan Advance, and in no event is any such Note to be considered a bearer instrument or obligation. This Section 8.07 shall be construed so that the Term Loan Advances are at all times maintained in “registered form” within the meaning of sections 163(f), 871(h)(2) and 881(c)(2) of the Internal Revenue Code and any related regulations (or any successor provisions of the Internal Revenue Code or such regulations). Solely for purposes of this and for tax purposes only, the Administrative Agent shall act as each Borrower’s agent for purposes of maintaining such notations of transfer in the Register. (f) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender Party and an assignee, together with any Note or Notes subject to such assignment, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of ~~Exhibit~~ EXHIBIT C hereto, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to ~~BMCA~~ the Borrower and each other Administrative Agent. In the case of any assignment by a Lender, within ~~five~~ ten Business Days after its receipt of such notice, the ~~Borrowers~~Borrower, at ~~their~~ its own expense, ~~shall, if requested by the assignee,~~ shall execute and deliver to the Administrative Agent in exchange for the surrendered Note or Notes ~~an amended and restated~~ a new Note ~~(which shall be marked “Amended and Restated”)~~ to the order of such Eligible Assignee in an amount equal to the ~~Term Loan~~ Commitment assumed by it under each Facility pursuant to such Assignment and Acceptance and, if any assigning Lender has retained a ~~Term Loan~~ Commitment hereunder under such ~~Facility and has requested~~ Facility, a ~~replacement Note, an amended and restated~~ new Note to the order of such assigning Lender in an amount equal to the ~~Term Loan~~ Commitment retained by it hereunder. Such ~~amended and restated~~ 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 Assignment and Acceptance and shall otherwise be in substantially the form of ~~Exhibit A~~ EXHIBIT A-1 or A-2 hereto, as the case may be. (f) The Issuing Bank may assign to an Eligible Assignee not less than all of its rights and obligations under the undrawn portion of its Letter of Credit Commitment at any time; provided, however, that (i) each such assignment shall be to an Eligible Assignee and (ii) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together with a processing and recordation fee of $3,500. (g) Each Lender Party may sell participations to one or more Persons (other than any Loan Party or any of its Affiliates) in or to all or a portion of its rights and obligations under this Agreement (~~including~~ including, without limitation, all or a portion of its ~~Term Loan~~ Commitments, the ~~Term Loan~~ Advances owing to it and the Note or Notes (if any) held by it); provided, however, that (i) such ~~Lender’s~~ Lender Party's obligations under this Agreement (~~including~~ including, without limitation, its ~~Term Loan~~ Commitments) shall remain unchanged, (ii) such Lender Party shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) such Lender Party shall remain the holder of any such Note for all purposes of this Agreement, (iv) the ~~Borrowers~~Borrower, the ~~Agents~~ Administrative Agent and the other ~~Lenders~~ Lender Parties shall continue to deal solely and directly with such Lender Party in connection with such ~~Lender’s~~ Lender Party's rights and obligations under this Agreement and (v) no participant under any such participation shall have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent ~~requires~~ would reduce the ~~consent~~ principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, postpone any date fixed for any payment of principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, or release all ~~Lenders~~or substantially all of the Collateral. (h) Any Lender Party may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section ~~8.07~~9.07, disclose to the assignee or participant or proposed assignee or participant any information relating to the ~~Borrowers~~ Borrower furnished to such Lender Party by or on behalf of the ~~Borrowers~~Borrower; provided, however, 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 received by it from such Lender ~~in accordance with the terms of Section 8.09~~Party. (i) Notwithstanding any other provision set forth in this Agreement, any Lender Party may at any time create a security interest in all or any portion of its rights under this Agreement (~~including~~ including, without limitation, the ~~Term Loan~~ 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 System. (j) Notwithstanding anything to the contrary contained herein, any Lender that is a fund that invests in bank loans may create a security interest in all or any portion of the ~~Term Loan~~ Advances owing to it and the Note or Notes held by it to in favor of the trustee for holders of obligations owed, or securities issued, by such fund as security for such obligations or securities; provided, ~~provided~~however, that unless and until such trustee actually becomes a Lender in compliance with the other provisions of this Section ~~8.07~~9.07, (i) no such pledge shall release the pledging Lender from any of its obligations under the Loan Documents and (ii) such trustee shall not be entitled to exercise any of the rights of a Lender under the Loan Documents even though such trustee may have acquired ownership rights with respect to the pledged interest through foreclosure or otherwise. (k) Notwithstanding anything to the contrary contained herein, any Lender Party (a ~~“Granting Lender”~~"GRANTING LENDER") may grant to a special purpose funding vehicle identified as such in writing from time to time by the Granting Lender to the Administrative Agent and ~~BMCA~~ the Borrower (an “"SPC”") the option to provide all or any part of any ~~Term Loan~~ Advance that such Granting Lender would otherwise be obligated to make pursuant to this Agreement; provided, ~~provided~~ however, that (i) nothing herein shall constitute a commitment by any SPC to fund any ~~Term Loan~~ Advance, and (ii) if an SPC elects not to exercise such option or otherwise fails to make all or any part of such ~~Term Loan~~ Advance, the Granting Lender shall be obligated to make such ~~Term Loan~~ Advance pursuant to the terms hereof. The making of an Advance by an SPC hereunder shall utilize the ~~Term Loan~~ Commitment of the Granting Lender to the same extent, and as if, such ~~Term Loan~~ Advance were made by such Granting Lender. Each party hereto hereby agrees that (i) no SPC shall be liable for any indemnity or similar payment obligation under this Agreement for which a Lender Party would be liable, (ii) no SPC shall be entitled to the benefits of Sections ~~2.09~~ 2.10 and ~~2.11~~ 2.12 (or any other increased costs protection provision) and (iii) the Granting ~~Bank~~ Lender shall for all purposes, ~~including~~ including, without limitation, the approval of any amendment or waiver of any provision of any Loan Document, remain the Lender Party of record hereunder. In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior Debt of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency, or liquidation proceeding under the laws of the United States or any State thereof. Notwithstanding anything to the contrary contained in this Agreement, any SPC may (i) with notice to, but without prior consent of, ~~BMCA~~ the Borrower and the Administrative Agent and with the payment of a processing fee of $~~500 and without paying any processing fee therefor~~500, assign all or any portion of its interest in any ~~Term Loan~~ Advance to the Granting Lender and (ii) disclose on a confidential basis any non-public information relating to its funding of ~~Term Loan Advance~~ Advances to any rating agency, commercial paper dealer or provider of any surety or guarantee or credit or liquidity enhancement to such SPC. This subsection (k) may not be amended without the prior written consent of the Borrower (which consent shall not be unreasonably withheld) and each Granting Lender, all or any part of whose ~~Term Loan~~ Advances are being funded by the SPC at the time of such amendment.

Appears in 1 contract

Samples: Credit Agreement (Boca Resorts Inc)

Assignments and Participations. (a) Each Lender ~~may, upon at least five Business Days’ notice to such Lender and the Administrative Agent,~~ may assign to one or more Eligible Assignees all or a portion of its rights and obligations under this Agreement (~~including~~ including, without limitation, all or a portion of its ~~Term Loan Commitment~~Commitment or Commitments, the ~~Term Loan~~ Advances owing to it and the Note or Notes held by it); ~~provided~~PROVIDED, ~~however~~HOWEVER, that (i) each such assignment shall be of a uniform, and not a varying, percentage of all rights and obligations under ~~this Agreement~~and in respect of any or all Facilities, (ii) except in the case of an assignment to a Person that, immediately prior to such assignment, was a Lender, an Affiliate of any Lender or an Approved Fund of any Lender or an assignment of all of a Lender’s 's rights and obligations under this Agreement, the aggregate amount of the ~~Term Loan~~ Commitments ~~or Term Loan Advances~~ being assigned to such Eligible Assignee pursuant to such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less ~~than~~ than, in the case of an assignment of all or a portion of a Lender's Revolving Credit Commitment, $5,000,000 (or such lesser amount as shall be approved by the Administrative Agent and, so long as no Event of Default shall have occurred and be continuing at the time of the effectiveness of such assignment, ~~BMCA)~~the Borrower) or, in the case of an assignment of all or a portion of a Lender's Tranche A Term Commitment or Tranche B Term Commitment, $1,000,000, (iii) each such assignment to an Approved Fund of any Lender shall in no event be less than $1,000,000, (iv) each such assignment shall be to an Eligible Assignee, (iv) except in the case of an assignment by a Person that, immediately prior to such assignment, was a Lender, to one of its Affiliates, no such assignments shall be permitted without the consent of the Administrative Agent and, so long as no Default shall have occurred and be continuing at the time of effectiveness of such assignment, BMCA (in each case, which consents shall not be unreasonably withheld) and (v) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together with any Note or Notes subject to such assignment and a processing and recordation fee of $~~3,500~~3,000. (b) Upon such execution, delivery, acceptance and recording, from and after the effective date specified in such 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, have the rights and obligations of a Lender hereunder and (ii) the Lender assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (other than its rights under Sections ~~2.09~~2.10, ~~2.11~~ 2.13 and 8.04 to the extent any claim thereunder relates to an event arising prior to such assignment) and be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all of the remaining portion of an assigning Lender’s 's rights and obligations under this Agreement, such Lender shall 107 cease to be a party hereto). If the assignee is not incorporated under the laws of the United States or a state thereof, it shall deliver to the Borrower and the Administrative Agent certification as to exemption from deduction or withholding of Taxes in accordance with Section 2.13. (c) By executing and delivering an Assignment and Acceptance, each Lender Party assignor thereunder and each assignee thereunder confirm to and agree with each other and the other parties thereto and hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender Party makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with any Loan Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value of, or the perfection or priority of any ~~lien or security interest~~ Lien created or purported to be created under or in connection with, any Loan Document or any other instrument or document furnished pursuant thereto; (ii) such assigning Lender Party makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party or the performance or observance by any Loan Party of any of its obligations under any Loan Document or any other instrument or document furnished pursuant thereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of ~~the financial statements referred to in Section 4.01 and~~ such ~~other~~ documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) such assignee will, independently and without reliance upon any Agent, such assigning Lender Party or any other Lender Party and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) such assignee confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes each Agent to take such action as agent on its behalf and to exercise such powers and discretion under the Loan Documents as are delegated to such Agent by the terms hereof and thereof, together with such powers and discretion as are reasonably incidental thereto; and (vii) such assignee agrees that it will perform in accordance with their terms all of the obligations that by the terms of this Agreement are required to be performed by it as a ~~Lender~~Lender or Issuing Bank, as the case may be. (d) The Administrative ~~Agent~~ Agent, acting for this purpose (but only for this purpose) as the agent of the ~~Borrowers~~Borrower, shall maintain at its address referred to in Section 8.02 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 ~~Lenders~~ Lender Parties and the ~~Term Loan~~ Commitment under each Facility of, and principal amount of the ~~Term Loan~~ Advances owing under each Facility to, each Lender Party from time to time (the ~~“Register”~~"REGISTER"). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the ~~Borrowers~~Borrower, the Agents and the ~~Lenders~~ Lender Parties shall treat each Person whose name is recorded in the Register as a Lender Party hereunder for all purposes of this Agreement. The Register shall be available for inspection by the ~~Borrowers~~ Borrower or any Agent or any Lender Party at any reasonable time and from time to time upon reasonable prior notice. (e) Notwithstanding anything to the contrary contained in clause (b) above, the Term Loan Advances (including the Notes evidencing such Term Loan Advances) are registered obligations and the right, title, and interest of the Lenders and their assignees in and to such Term Loan Advances shall be transferable only upon notation of such transfer in the Register. A Note shall only evidence the Lender’s or an assignee’s right title and interest in and to the related Term Loan Advance, and in no event is any such Note to be considered a bearer instrument or obligation. This Section 8.07 shall be construed so that the Term Loan Advances are at all times maintained in “registered form” within the meaning of sections 163(f), 871(h)(2) and 881(c)(2) of the Internal Revenue Code and any related regulations (or any successor provisions of the Internal Revenue Code or such regulations). Solely for purposes of this and for tax purposes only, the Administrative Agent shall act as each Borrower’s agent for purposes of maintaining such notations of transfer in the Register. (f) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender Party and an assignee, together with any Note or Notes subject to such assignment, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit C hereto, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to ~~BMCA and each other Agent~~the Borrower. In the case of any assignment by a Lender, ~~within five Business Days~~ if so requested, promptly after its 108 receipt of such notice, the ~~Borrowers~~Borrower, at ~~their~~ its own expense, ~~shall, if requested by the assignee,~~ shall execute and deliver to the Administrative Agent in exchange for the surrendered Note or Notes ~~an amended and restated~~ a new Note ~~(which shall be marked “Amended and Restated”)~~ to the order of such Eligible Assignee in an amount equal to the ~~Term Loan~~ Commitment assumed by it under each Facility pursuant to such Assignment and Acceptance and, if any assigning Lender has retained a ~~Term Loan~~ Commitment hereunder under such ~~Facility and has requested~~ Facility, a ~~replacement Note, an amended and restated~~ new Note to the order of such assigning Lender in an amount equal to the ~~Term Loan~~ Commitment retained by it hereunder. Such ~~amended and restated~~ 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 Assignment and Acceptance and shall otherwise be in substantially the form of Exhibit A X-0, X-0 or A-3 hereto, as the case may be. (gf) Each Lender Party may sell participations to one or more ~~Persons~~ Per- sons (other than any Loan Party or any of its Affiliates) in or to all or a portion of its rights, obligations or rights and obligations under this Agreement (~~including~~ including, without limitation, all or a portion of its ~~Term Loan~~ Commitments, the ~~Term Loan~~ Advances owing to it and the Note or Notes (if any) held by it); ~~provided~~PROVIDED, ~~however~~HOWEVER, that (i) such ~~Lender’s~~ Lender Party's obligations under this Agreement (~~including~~ including, without limitation, its ~~Term Loan~~ Commitments) shall remain unchanged, (ii) such Lender Party shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) such Lender Party shall remain the holder of any such Note for all purposes of this Agreement, (iv) the ~~Borrowers~~Borrower, the Agents and the other ~~Lenders~~ Lender Parties shall continue to deal solely and directly with such Lender Party in connection with such ~~Lender’s~~ Lender Party's rights and obligations under this ~~Agreement~~ Agreement, (v) the participant shall be entitled to the benefit of the yield protection provisions contained in Sections 2.10, 2.13 and 8.04(c) and the right of set-off contained in Section 8.05 and (vvi) no participant under any such participation shall have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent ~~requires~~ would reduce the ~~consent~~ principal of, or stated rate of interest on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, postpone any date scheduled for any payment of principal of, or interest on, the Notes pursuant to Section 2.04 or 2.07 or any date fixed for any payment of fees hereunder or any Guaranteed Obligations payable under the Subsidiary Guaranty, in each case to the extent subject to such participation, or release all ~~Lenders~~or substantially all of the Collateral. (hg) Any Lender Party may, in connection with any assignment or ~~participation~~ par- ticipation or proposed assignment or participation pursuant to this Section 8.07, disclose to the assignee or participant or proposed assignee or participant any information relating to the ~~Borrowers~~ Borrower furnished to such Lender Party by or on behalf of the ~~Borrowers~~Borrower; ~~provided~~PROVIDED, ~~however~~HOWEVER, 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 received by it from such Lender ~~in accordance with the terms of Section 8.09~~Party. (ih) Notwithstanding any other provision set forth in this ~~Agreement,~~ Agreement any Lender Party may at any time create a security interest in all or any portion of its rights under this Agreement (~~including~~ including, without limitation, the ~~Term Loan~~ 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 ~~System.~~System and any Operating Circular issued by such Federal Reserve Bank. No such assignment shall release the assigning Lender from its obligations hereunder. 109 (ji) Notwithstanding anything to the contrary contained herein, any Lender that is a fund that invests in bank loans may create a security interest in all or any portion of the ~~Term Loan~~ Advances owing to it and the Note or Notes held by it to the trustee for holders of obligations owed, or securities issued, by such fund as security for such obligations or securities, provided, that unless and until such trustee actually becomes a Lender in compliance with the other provisions of this Section 8.07, (i) no such pledge shall release the pledging Lender from any of its obligations under the Loan Documents and (ii) such trustee shall not be entitled to exercise any of the rights of a Lender under the Loan Documents even though such trustee may have acquired ownership rights with respect to the pledged interest through foreclosure or otherwise. (kj) Notwithstanding anything to the contrary contained herein, any Lender Party (a ~~“Granting Lender”~~"GRANTING LENDER") may grant to a special purpose funding vehicle identified as such in writing from time to time by the Granting Lender to the Administrative Agent and ~~BMCA~~ the Borrower (an “"SPC”") the option to provide all or any part of any ~~Term Loan~~ Advance that such Granting Lender would otherwise be obligated to make pursuant to this Agreement, provided that (i) nothing herein shall constitute a commitment by any SPC to fund any ~~Term Loan~~ Advance, and (ii) if an SPC elects not to exercise such option or otherwise fails to make all or any part of such ~~Term Loan~~ Advance, the Granting Lender shall be obligated to make such ~~Term Loan~~ Advance pursuant to the terms hereof. The making of an Advance by an SPC hereunder shall utilize the ~~Term Loan~~ Commitment of the Granting Lender to the same extent, and as if, such ~~Term Loan~~ Advance were made by such Granting Lender. Each party hereto hereby agrees that (i) no SPC shall be liable for any indemnity or similar payment obligation under this Agreement for which a Lender Party would be liable, (ii) no SPC shall be entitled to the benefits of Sections ~~2.09~~ 2.10 and ~~2.11~~ 2.13 (or any other increased costs protection provision) and (iii) the Granting Bank shall for all purposes, ~~including~~ including, without limitation, the approval of any amendment or waiver of any provision of any Loan Document, remain the Lender Party of record hereunder. In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior Debt of any SPC, it will not institute against, or join any other ~~person~~ Person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency, or liquidation proceeding under the laws of the United States or any ~~State~~ state thereof. Notwithstanding anything to the contrary contained in this Agreement, any SPC may (i) with notice to, but without prior consent of, ~~BMCA~~ the Borrower and the Administrative Agent and with the payment of a processing fee of $~~500 and without paying any processing fee therefor~~500, assign all or any portion of its interest in any ~~Term Loan~~ Advance to the Granting Lender and (ii) disclose on a confidential basis any non-public information relating to its funding of ~~Term Loan Advance~~ Advances to any rating agency, commercial paper dealer or provider of any surety or guarantee or credit or liquidity enhancement to such SPC. This subsection (k) may not be amended without the prior written consent of each Granting Lender, all or any part of whose ~~Term Loan~~ Advances are being funded by the SPC at the time of such amendment.

Appears in 1 contract

Samples: Credit Agreement (Levi Strauss & Co)

Assignments and Participations. (a) Each Lender ~~may, upon at least five Business Days’ notice to such Lender and the Administrative Agent,~~ (x) may assign to one or more ~~Eligible Assignees~~ of its Affiliates or Subsidiaries and (y) may with the prior consent of the Administrative Agent and the Borrower (such consents not to be unreasonably withheld or delayed) assign to one or more banks or other entities, all or a portion of its rights and obligations under this Agreement (~~including~~ including, without limitation, all or a portion of its ~~Term Loan Commitment~~Commitments, the ~~Term Loan~~ Advances owing to it and the ~~Note or~~ Notes held by it); provided, however, that such assignment or any activity intended to give rise to an assignment shall not be initiated prior to the receipt by the Lenders of notice from the Arrangers that the syndication of this Agreement has been completed; provided further, however, that (i) each such assignment shall be of a uniform, and not a varying, percentage of all such Lender's rights and obligations under ~~this Agreement~~and in respect of the Working Capital Facility (other than any right to make Competitive Bid Advances or Competitive Bid Advances owing to it), (ii) except in the case of an assignment to a Person ~~that,~~ that immediately prior to such ~~assignment,~~ assignment was a ~~Lender, an Affiliate of any Lender or an Approved Fund of any~~ Lender or an assignment of all of a Lender’s 's rights and obligations under this ~~Agreement,~~ Agreement the ~~aggregate~~ amount of the ~~Term Loan~~ Commitments ~~or Term Loan Advances~~ of the assigning Lender being assigned ~~to such Eligible Assignee~~ pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $5,000,000 (or such lesser amount as shall be approved by the Administrative Agent and, so long as no Default shall have occurred and be continuing at the time of effectiveness of such assignment, BMCA)10,000,000, (iii) each such assignment shall be to ~~an Eligible Assignee, (iv) except in the case of an assignment by a Person that, immediately prior to such assignment, was~~ a Lender, an Eligible Assignee or to ~~one of its Affiliates, no such assignments shall be permitted without the consent~~ an Affiliate or Subsidiary of the ~~Administrative Agent and~~assignor, ~~so long as no Default shall have occurred and be continuing at the time of effectiveness of such assignment, BMCA (in each case, which consents shall not be unreasonably withheld)~~ and (viv) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together with any Note ~~or Notes~~ subject to such ~~assignment~~ assignment, and a processing and recordation fee of $~~3,500. (b)~~ 3,000 for each assignment completed after the notice referred to in the first proviso of this Section 9.07 has been received. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in such Assignment and Acceptance, (ix) the assignee thereunder shall be a 106 102 party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, have the rights and obligations of a Lender hereunder and (iiy) the Lender assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights ~~(other than its rights under Sections 2.09, 2.11 and 8.04 to the extent any claim thereunder relates to an event arising prior to such assignment)~~ and be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all of or the remaining portion of an assigning Lender’s 's rights and obligations under this Agreement, such Lender shall cease to be a party hereto). (cb) By executing and delivering an Assignment and Acceptance, ~~each~~ the Lender assignor thereunder and ~~each~~ the assignee thereunder confirm to and agree with each other and the other parties ~~thereto and~~ hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with ~~any Loan Document~~ this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of, or the perfection or priority of any ~~lien or security interest~~ Lien created or purported to be created under or in connection with, ~~any Loan Document~~ this Agreement or any other instrument or document furnished pursuant ~~thereto~~hereto; (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of the Borrower or any ~~Loan~~ other Obligated Party or the performance or observance by the Borrower or any ~~Loan~~ other Obligated Party of any of its obligations under ~~any Loan Document~~ this Agreement or any other instrument or document furnished pursuant ~~thereto~~hereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 4.01 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) such assignee will, independently and without reliance upon ~~any~~ the Administrative Agent, such assigning Lender or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) such assignee confirms that it is a Lender, an Eligible ~~Assignee~~Assignee or an Affiliate of the assignor; (vi) such assignee appoints and authorizes ~~each~~ the Administrative Agent to take such action as agent on its behalf and to exercise such powers and discretion under ~~the Loan Documents~~ this Agreement as are delegated to ~~such~~ the Administrative Agent by the terms ~~hereof and thereof~~hereof, together with such powers and discretion as are reasonably incidental thereto; and (vii) such assignee agrees 107 103 that it will perform in accordance with their terms all of the obligations that by the terms of this Agreement are required to be performed by it as a Lender. (dc) The Administrative Agent ~~acting for this purpose (but only for this purpose) as the agent of the Borrowers,~~ shall maintain at its address referred to in Section ~~8.02~~ 9.02 a copy of each Assumption Agreement and each Assignment and Acceptance delivered to and accepted by it and a register for the recordation of the names and addresses of the Lenders and the ~~Term Loan~~ Commitment under each Facility of, and principal amount of the ~~Term Loan~~ Advances owing under each Facility 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 ~~Borrowers~~Borrower, the ~~Agents~~ Administrative Agent and the Lenders ~~shall~~ 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 Agent~~ Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice. (e) Notwithstanding anything to the contrary contained in clause (b) above, the Term Loan Advances (including the Notes evidencing such Term Loan Advances) are registered obligations and the right, title, and interest of the Lenders and their assignees in and to such Term Loan Advances shall be transferable only upon notation of such transfer in the Register. A Note shall only evidence the Lender’s or an assignee’s right title and interest in and to the related Term Loan Advance, and in no event is any such Note to be considered a bearer instrument or obligation. This Section 8.07 shall be construed so that the Term Loan Advances are at all times maintained in “registered form” within the meaning of sections 163(f), 871(h)(2) and 881(c)(2) of the Internal Revenue Code and any related regulations (or any successor provisions of the Internal Revenue Code or such regulations). Solely for purposes of this and for tax purposes only, the Administrative Agent shall act as each Borrower’s agent for purposes of maintaining such notations of transfer in the Register. (fd) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee, together with any Note or Notes subject to such assignment, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit C hereto, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to ~~BMCA and each other Agent~~the Borrower. ~~In the case of any assignment by a Lender, within~~ Within five Business Days after its receipt of such notice, the ~~Borrowers~~Borrower, at ~~their~~ its own expense, ~~shall, if requested by the assignee,~~ shall execute and deliver to the Administrative Agent in exchange for the surrendered Note or Notes ~~an amended and restated~~ a new Note ~~(which shall be marked “Amended and Restated”)~~ or Notes to the order of such ~~Eligible Assignee~~ assignee in an amount equal to the ~~Term Loan~~ Commitment assumed by it under ~~each~~ a Facility pursuant to such Assignment and Acceptance and, if ~~any~~ the assigning Lender has retained a ~~Term Loan~~ Commitment hereunder under such ~~Facility and has requested a replacement Note~~Facility, ~~an amended and restated Note~~ new Notes to the order of ~~such~~ the assigning Lender in an aggregate amount equal to the ~~Term Loan Commitment~~ aggregate Commitments retained by it hereunder. Such ~~amended and restated~~ 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 Assignment and Acceptance and shall otherwise be in substantially the form of Exhibit A A-1 hereto. (ge) Each Lender may sell participations ~~to one or more Persons (other than any Loan Party or any of its Affiliates)~~ in or to all or a portion of its rights and obligations under this Agreement (~~including~~ including, without limitation, all or a portion of its ~~Term Loan~~ Commitments, the ~~Term Loan~~ Advances owing to it and the Note or Notes ~~(if any)~~ held by it); provided, however, that (i) such Lender’s 's obligations under this Agreement (~~including~~ including, without limitation, its ~~Term Loan~~ 108 104 Commitments) shall remain unchanged, (ii) 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 or Notes for all purposes of this Agreement, (iv) the ~~Borrowers~~Borrower, the Agents and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s 's rights and obligations under this Agreement and (v) no participant under any such participation and no sub-participant of such participation shall have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by ~~any Loan Party~~ the Borrower therefrom, except to the extent that such amendment, waiver or consent ~~requires~~ would directly: reduce the ~~consent~~ stated rate of interest borne by the Advances owing to such participant (other than as a result of waiving the applicability of any post-default increase in interest rates), forgive all ~~Lenders~~or any part of the principal amount thereof, reduce the stated rate for calculating any commitment fee or Letter of Credit fee owing to the Lenders or extend the final scheduled maturity of any Advance owing to such participant, in each case to the extent subject to such participation. (hf) Any Lender may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section ~~8.07~~9.07, disclose to the assignee or participant or proposed assignee or ~~participant~~ participant, any information relating to the ~~Borrowers~~ Borrower furnished to such Lender by or on behalf of the ~~Borrowers~~Borrower; provided, however, that, prior to any such disclosure, the assignee or participant or proposed assignee or participant shall ~~agree~~ have executed a confidentiality agreement substantially in the form of Exhibit F hereto and returned to ~~preserve the confidentiality of any Confidential Information received by it from~~ same to such Lender ~~in accordance with~~ and the ~~terms of Section 8.09~~Borrower. (ig) Notwithstanding any other provision set forth in this Agreement, any Lender may at any time create a security interest in all or any portion of its rights under this Agreement (~~including~~ including, without limitation, the ~~Term Loan~~ 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 System. (j) Notwithstanding anything to the contrary contained herein, any Lender that is a fund that invests in bank loans may create a security interest in all or any portion of the Term Loan Advances owing to it and the Note or Notes held by it to the trustee for holders of obligations owed, or securities issued, by such fund as security for such obligations or securities, provided, that unless and until such trustee actually becomes a Lender in compliance with the other provisions of this Section 8.07, (i) no such pledge shall release the pledging Lender from any of its obligations under the Loan Documents and (ii) such trustee shall not be entitled to exercise any of the rights of a Lender under the Loan Documents even though such trustee may have acquired ownership rights with respect to the pledged interest through foreclosure or otherwise. (k) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Lender”) may grant to a special purpose funding vehicle identified as such in writing from time to time by the Granting Lender to the Administrative Agent and BMCA (an “SPC”) the option to provide all or any part of any Term Loan Advance that such Granting Lender would otherwise be obligated to make pursuant to this Agreement, provided that (i) nothing herein shall constitute a commitment by any SPC to fund any Term Loan Advance, and (ii) if an SPC elects not to exercise such option or otherwise fails to make all or any part of such Term Loan Advance, the Granting Lender shall be obligated to make such Term Loan Advance pursuant to the terms hereof. The making of an Advance by an SPC hereunder shall utilize the Term Loan Commitment of the Granting Lender to the same extent, and as if, such Term Loan Advance were made by such Granting Lender. Each party hereto hereby agrees that (i) no SPC shall be liable for any indemnity or similar payment obligation under this Agreement for which a Lender would be liable, (ii) no SPC shall be entitled to the benefits of Sections 2.09 and 2.11 (or any other increased costs protection provision) and (iii) the Granting Bank shall for all purposes, including the approval of any amendment or waiver of any provision of any Loan Document, remain the Lender of record hereunder. In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior Debt of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency, or liquidation proceeding under the laws of the United States or any State thereof. Notwithstanding anything to the contrary contained in this Agreement, any SPC may (i) with notice to, but without prior consent of, BMCA and the Administrative Agent and with the payment of a processing fee of $500 and without paying any processing fee therefor, assign all or any portion of its interest in any Term Loan Advance to the Granting Lender and (ii) disclose on a confidential basis any non-public information relating to its funding of Term Loan Advance to any rating agency, commercial paper dealer or provider of any surety or guarantee or credit or liquidity enhancement to such SPC. This subsection (k) may not be amended without the prior written consent of each Granting Lender, all or any part of whose Term Loan Advances are being funded by the SPC at the time of such amendment.

Appears in 1 contract

Samples: Credit Agreement (Borden Inc)

Assignments and Participations. (a) Each ~~Lender~~ Bank may, and so long as no Event of Default shall have occurred and be continuing, if demanded by the Company pursuant to Section 2.11 upon at least five (5) Business Days’ ' notice to such ~~Lender~~ Bank and the Administrative Agent, will, assign to one or more Eligible Assignees all or a portion of its rights and obligations under this Agreement and the other Loan Documents (including all or a portion of its ~~Term Loan~~ Commitment, its LOC Participating Interests and the ~~Term Loan Advances~~ LOC Disbursements owing to ~~it and the Note or Notes held by~~ it); ~~provided, however,~~ provided that (i) each such assignment shall be of a uniform, and not a varying, percentage of all rights and obligations ~~under this Agreement~~of such Bank hereunder, (ii) except in the case of an assignment to a Person that, immediately prior to such assignment, was (x) a ~~Lender,~~ Bank or an Affiliate of ~~any Lender or an Approved Fund of any Lender or an assignment of all of~~ a ~~Lender’s rights and obligations under this Agreement~~Bank, the aggregate amount of the ~~Term Loan Commitments or Term Loan Advances~~ Commitment being assigned to such Eligible Assignee pursuant to such assignment (determined as of the date of the Assignment and ~~Acceptance~~ Assumption with respect to such assignment) shall in no event be less than $25,000,000 unless it is an assignment of the entire amount of such assignor's Commitment, or (y) not a Bank or an Affiliate of any Bank, the aggregate amount of the Commitment being assigned to such Eligible Assignee pursuant to such assignment (determined as of the date of the Assignment and Assumption with respect to such assignment) shall in no event be less than $5,000,000 ~~(or such lesser~~ unless it is an assignment of the entire amount ~~as shall be approved by the Administrative Agent and, so long as no Default shall have occurred and be continuing at the time of effectiveness~~ of such ~~assignment, BMCA)~~assignor's Commitment, (iii) each such assignment shall be to an Eligible Assignee, (iv) ~~except in~~ each assignment made as a result of a demand by the ~~case of~~ Company pursuant to Section 2.11 shall be arranged by the Company after consultation with the Administrative Agent, and shall be either an assignment of all of the rights and obligations of the assigning Bank under this Agreement or an assignment of a portion of such rights and obligations made concurrently with another such assignment or other such assignments that together cover all of the rights and obligations of the assigning Bank under this Agreement, (v) no Bank shall be obligated to make any such assignment as a result of a demand by ~~a Person that~~the Company pursuant to Section 2.11 unless and until such Bank shall have received one or more payments from either the Company or other Eligible Assignees in an aggregate amount at least equal to the aggregate outstanding principal amount of the LOC Disbursements made by such Bank, ~~immediately prior~~ together with accrued interest thereon to the date of payment of such principal amount and all other amounts payable to such ~~assignment~~Bank under this Agreement, ~~was~~ (vi) as a Lender, to one of its Affiliates, no such assignments shall be permitted without the consent of the Administrative Agent and, so long as no Default shall have occurred and be continuing at the time of effectiveness result of such assignment, ~~BMCA (in each case, which consents~~ the Company shall not be ~~unreasonably withheld)~~ subject to additional amounts under Section 2.06 or 2.08, and (vvii) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and ~~Acceptance~~Assumption, together with ~~any Note or Notes subject to such assignment and~~ a processing and recordation fee of $3,500. (b) Upon such execution, delivery, acceptance and recording, from and after the effective date specified in such Assignment and ~~Acceptance~~Assumption, (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~~Assumption, have the rights and obligations of a ~~Lender hereunder~~ Bank hereunder, and (ii) the ~~Lender~~ Bank assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and ~~Acceptance~~Assumption, relinquish its rights (other than its rights under Sections ~~2.09~~2.06, ~~2.11~~ 2.08 and 8.04 to the extent any claim thereunder relates to an event arising prior to such ~~assignment~~assignment and any other rights that are expressly provided hereunder to survive) and be released from its obligations under this Agreement (and, in the case of an Assignment and ~~Acceptance~~ Assumption covering all of the remaining portion of an assigning ~~Lender’s~~ Bank's rights and obligations under this Agreement, such ~~Lender~~ Bank shall cease to be a party hereto). (c) By executing and delivering an Assignment and ~~Acceptance~~Assumption, each ~~Lender~~ Bank assignor thereunder and each assignee thereunder confirm to and agree with each other and the other parties thereto and hereto as follows: (i) other than as provided in such Assignment and ~~Acceptance~~Assumption, such assigning ~~Lender~~ Bank makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with any Loan Document or the execution, legality, validity, enforceability, genuineness, ~~sufficiency~~ sufficiency, or value ~~of, or the perfection or priority~~ of ~~any lien or security interest created or purported to be created under or in connection with,~~ any Loan Document or any other instrument or document furnished pursuant thereto; (ii) such assigning ~~Lender~~ Bank makes no representation or warranty and assumes no responsibility with respect to the financial condition of the Company or any ~~Loan Party~~ of its Subsidiaries or the performance or observance by the Company or any ~~Loan Party~~ of its Subsidiaries of any of its obligations under any Loan Document or any other instrument or document furnished pursuant thereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements ~~referred to in Section 4.01~~ and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and ~~Acceptance~~Assumption; (iv) such assignee will, independently and without reliance upon ~~any~~ the Administrative 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, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) such assignee confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes ~~each~~ the Administrative Agent to take such action as agent on its behalf and to exercise such powers and discretion under the Loan Documents as are delegated to ~~such~~ the Administrative Agent by the terms hereof and thereof, together with such powers and discretion as are reasonably incidental thereto; and (vii) such assignee agrees that it will perform in accordance with their terms all of the obligations that by the terms of this Agreement are required to be performed by it as a ~~Lender~~Bank. (d) The Administrative ~~Agent~~ Agent, acting for this purpose (but only for this purpose) as the agent of the ~~Borrowers~~Company, shall maintain at its address referred to in Section 8.02 a copy of each Assignment and ~~Acceptance~~ Assumption delivered to and accepted by it and ~~a register for~~ the ~~recordation of the names and addresses of the Lenders and the Term Loan Commitment of, and principal amount of the Term Loan Advances 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 ~~Borrowers~~Company, the ~~Agents~~ other Applicants, the Administrative Agent and the ~~Lenders~~ Banks shall treat each Person whose name is recorded in the Register as a ~~Lender~~ Bank hereunder for all purposes of this Agreement. The Register shall be available for inspection by the ~~Borrowers~~ Company or any ~~Agent or any Lender~~ Bank at any reasonable time and from time to time upon reasonable prior notice. (e) ~~Notwithstanding anything~~ Upon its receipt of a completed Assignment and Assumption executed by an assigning Bank and an assignee and consented to by the ~~contrary contained in clause (b) above~~Administrative Agent, the ~~Term Loan Advances (including the Notes evidencing such Term Loan Advances) are registered obligations and the right~~Issuing Bank, ~~title~~and, ~~and interest of the Lenders and their assignees in and~~ where required, pursuant to such Term Loan Advances shall be transferable only upon notation of such transfer in the Register. A Note shall only evidence the Lender’s or an assignee’s right title and interest in and to the related Term Loan Advance, and in no event is any such Note to be considered a bearer instrument or obligation. This Section ~~8.07 shall be construed so that the Term Loan Advances are at all times maintained in “registered form” within the meaning of sections 163(f~~8.06(a), ~~871(h)(2) and 881(c)(2) of~~ the ~~Internal Revenue Code and any related regulations (or any successor provisions of the Internal Revenue Code or such regulations). Solely for purposes of this and for tax purposes only~~Company, the Administrative Agent shall act as each Borrower’s agent for purposes of maintaining such notations of transfer in the Register. (f) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee, together with any Note or Notes subject to such assignment, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit C hereto, (i) accept such Assignment and ~~Acceptance~~Assumption, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to ~~BMCA~~ the Company and each other Agent. In the case of any assignment by a Lender, within five Business Days after its receipt of such notice, the Borrowers, at their own expense, shall, if requested by the assignee, execute and deliver to the Administrative Agent in exchange for the surrendered Note or Notes an amended and restated Note (which shall be marked “Amended and Restated”) to the order of such Eligible Assignee in an amount equal to the Term Loan Commitment assumed by it under each Facility pursuant parties to such Assignment and Acceptance and, if any assigning Lender has retained a Term Loan Commitment hereunder under such Facility and has requested a replacement Note, an amended and restated Note to the order of such assigning Lender in an amount equal to the Term Loan Commitment retained by it hereunder. Such amended and restated 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 Assignment and Acceptance and shall otherwise be in substantially the form of Exhibit A heretoAssumption. (gf) Each ~~Lender~~ Bank may sell participations to one or more Persons (other than ~~any Loan Party~~ the Company or any of its Affiliates) in or to all or a portion of its rights and obligations under this Agreement and the other Loan Documents (including all or a portion of its ~~Term Loan Commitments~~Commitment, its LOC Participating Interests and the ~~Term Loan Advances~~ LOC Disbursements owing to ~~it and the Note or Notes (if any) held by~~ it); ~~provided, however,~~ provided that (i) such ~~Lender’s~~ Bank's obligations under this Agreement (including its ~~Term Loan Commitments~~Commitment and its LOC Participating Interests) shall remain unchanged, (ii) such ~~Lender~~ Bank 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, (iv) the Borrowers~~Company, the ~~Agents~~ other Applicants, the Administrative Agent and the other ~~Lenders~~ Banks shall continue to deal solely and directly with such ~~Lender~~ Bank in connection with such ~~Lender’s~~ Bank's rights and obligations under this ~~Agreement~~ Agreement, (iv) so long as there then exists no Event of Default, such participation is consented to and approved by the Company (not to be unreasonably withheld), and (v) no participant under any such participation shall have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by ~~any Loan Party~~ the Company therefrom, except to the extent that such amendment, waiver or consent ~~requires~~ would reduce the ~~consent~~ principal of, or interest on, reimbursement obligations or any fees or other amounts payable hereunder, or postpone any date fixed for any payment thereof, in each case to the extent subject to such participation. Each Bank shall, as agent of ~~all Lenders~~the Company solely for the purposes of this Section 8.06, record in book entries maintained by such Bank, the name and amount of the participating interest of each Person entitled to receive payments in respect of any participating interests sold pursuant to this Section 8.06. (hg) Any ~~Lender~~ Bank may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section ~~8.07~~8.06, disclose to the assignee or participant or proposed assignee or participant any information relating to the ~~Borrowers~~ Company or any of its Subsidiaries furnished to such ~~Lender~~ Bank by or on behalf of the ~~Borrowers~~Company or any such Subsidiary; ~~provided, however,~~ 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 received by it from such ~~Lender in accordance with the terms of Section 8.09~~Bank. (ih) Notwithstanding any other provision set forth in this Agreement, any ~~Lender~~ Bank may at any time create a security interest in all or any portion of its rights under this Agreement (including the ~~Term Loan Advances~~ LOC Disbursements 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 System. (j) Notwithstanding anything to the contrary contained herein, any Lender that is a fund that invests in bank loans may create a security interest in all or any portion of the Term Loan Advances owing to it and the Note or Notes held by it to the trustee for holders of obligations owed, or securities issued, by such fund as security for such obligations or securities, provided, that unless and until such trustee actually becomes a Lender in compliance with the other provisions of this Section 8.07, (i) no such pledge shall release the pledging Lender from any of its obligations under the Loan Documents and (ii) such trustee shall not be entitled to exercise any of the rights of a Lender under the Loan Documents even though such trustee may have acquired ownership rights with respect to the pledged interest through foreclosure or otherwise. (k) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Lender”) may grant to a special purpose funding vehicle identified as such in writing from time to time by the Granting Lender to the Administrative Agent and BMCA (an “SPC”) the option to provide all or any part of any Term Loan Advance that such Granting Lender would otherwise be obligated to make pursuant to this Agreement, provided that (i) nothing herein shall constitute a commitment by any SPC to fund any Term Loan Advance, and (ii) if an SPC elects not to exercise such option or otherwise fails to make all or any part of such Term Loan Advance, the Granting Lender shall be obligated to make such Term Loan Advance pursuant to the terms hereof. The making of an Advance by an SPC hereunder shall utilize the Term Loan Commitment of the Granting Lender to the same extent, and as if, such Term Loan Advance were made by such Granting Lender. Each party hereto hereby agrees that (i) no SPC shall be liable for any indemnity or similar payment obligation under this Agreement for which a Lender would be liable, (ii) no SPC shall be entitled to the benefits of Sections 2.09 and 2.11 (or any other increased costs protection provision) and (iii) the Granting Bank shall for all purposes, including the approval of any amendment or waiver of any provision of any Loan Document, remain the Lender of record hereunder. In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior Debt of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency, or liquidation proceeding under the laws of the United States or any State thereof. Notwithstanding anything to the contrary contained in this Agreement, any SPC may (i) with notice to, but without prior consent of, BMCA and the Administrative Agent and with the payment of a processing fee of $500 and without paying any processing fee therefor, assign all or any portion of its interest in any Term Loan Advance to the Granting Lender and (ii) disclose on a confidential basis any non-public information relating to its funding of Term Loan Advance to any rating agency, commercial paper dealer or provider of any surety or guarantee or credit or liquidity enhancement to such SPC. This subsection (k) may not be amended without the prior written consent of each Granting Lender, all or any part of whose Term Loan Advances are being funded by the SPC at the time of such amendment.

Appears in 1 contract

Samples: Letter of Credit Facility Agreement (Sunpower Corp)

Assignments and Participations. (a) Each Lender ~~may~~may and, if demanded by the Borrower (following a demand by such Lender pursuant to Section 2.11 or 2.14 or a suspension of Eurodollar Rate Advances pursuant to Section 2.12 and only if no Event of Default has occurred and is continuing) upon at least five Business Days’ notice to such Lender and the ~~Administrative~~ Agent, will assign to one or more ~~Eligible Assignees~~ Persons all or a portion of its rights and obligations under this Agreement (~~including~~ including, without limitation, all or a portion of its ~~Term Loan~~ Revolving Credit Commitment, the ~~Term Loan~~ Advances owing to it it, its participations in Letters of Credit and the Note or Notes held by it); provided, however, that (i) each such assignment shall be of a ~~uniform~~constant, and not a varying, percentage of all rights and obligations under ~~this Agreement~~and in respect of the Facilities so assigned, (ii) except in the case of an assignment to a Person that, immediately prior to such assignment, was a ~~Lender,~~ Lender or an Affiliate of ~~any Lender or an Approved Fund of any~~ a Lender or an assignment of all of a Lender’s rights and obligations under this Agreement, the ~~aggregate~~ amount of the ~~Term Loan Commitments or Term Loan Advances~~ Revolving Credit Commitment of the assigning Lender being assigned ~~to such Eligible Assignee~~ pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $~~5,000,000 (~~10,000,000 or ~~such lesser amount as shall be approved by~~ an integral multiple of $1,000,000 in excess thereof, unless the ~~Administrative~~ Borrower and the Agent ~~and, so long as no Default shall have occurred and be continuing at the time of effectiveness of such assignment, BMCA)~~otherwise agree, (iii) each such assignment shall be to an Eligible Assignee, (iv) ~~except in~~ each such assignment made as a result of a demand by the ~~case of~~ Borrower pursuant to this Section 8.07(a) shall be arranged by the Borrower after consultation with the Agent and shall be either an assignment of all of the rights and obligations of the assigning Lender under this Agreement or an assignment of a portion of such rights and obligations made concurrently with another such assignment or other such assignments that together cover all of the rights and obligations of the assigning Lender under this Agreement, (v) no Lender shall be obligated to make any such assignment as a result of a demand by ~~a Person that~~the Borrower pursuant to this Section 8.07(a) unless and until such Lender shall have received, ~~immediately prior to~~ as consideration for such assignment, ~~was a~~ one or more payments from either the Borrower or one or more Eligible Assignees in an aggregate amount at least equal to the aggregate outstanding principal amount of the Advances owing to such Lender, together with accrued interest thereon to ~~one~~ the date of ~~its Affiliates, no such assignments shall be permitted without the consent of the Administrative Agent and, so long as no Default shall have occurred and be continuing at the time of effectiveness~~ payment of such ~~assignment~~principal amount and all other amounts payable to such Lender under this Agreement, ~~BMCA (in each case, which consents shall not be unreasonably withheld)~~ and (vvi) the parties to each such assignment shall execute and deliver to the ~~Administrative~~ Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together with any Note ~~or Notes~~ subject to such assignment and a processing and recordation fee of $~~3,500. (b)~~ 3,500 payable by the parties to each such assignment other than the Borrower, provided, however, that in the case of each assignment made as a result of a demand by the Borrower, such recordation fee shall be payable by the Borrower except that no such recordation fee shall be payable in the case of an assignment made at the request of the Borrower to an Eligible Assignee that is an existing Lender. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in ~~such~~ each Assignment and Acceptance, (ix) the assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, have the rights and obligations of a Lender hereunder and (iiy) the Lender assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (other than its rights under Sections ~~2.09~~2.11, ~~2.11~~ 2.14 and 8.04 to the extent any claim thereunder relates to an event arising prior to such assignment) and be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all of or the remaining portion of an assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto). (cb) By executing and delivering an Assignment and Acceptance, ~~each~~ the Lender assignor thereunder and ~~each~~ the assignee thereunder confirm to and agree with each other and the other parties ~~thereto and~~ hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with ~~any Loan Document~~ this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of, or the perfection or priority of any lien or security interest created or purported to be created under or in connection with, ~~any Loan Document~~ this Agreement or any other instrument or document furnished pursuant ~~thereto~~hereto; (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of ~~any Loan Party~~ the Borrower or the performance or observance by ~~any Loan Party~~ the Borrower of any of its obligations under ~~any Loan Document~~ this Agreement or any other instrument or document furnished pursuant ~~thereto~~hereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 4.01 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) such assignee will, independently and without reliance upon ~~any~~ the Agent, such assigning Lender or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) such assignee confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes ~~each~~ the Agent to take such action as agent on its behalf and to exercise such powers and discretion under ~~the Loan Documents~~ this Agreement as are delegated to ~~such~~ the Agent by the terms ~~hereof and thereof~~hereof, together with such powers and discretion as are reasonably incidental thereto; and (vii) such assignee agrees that it will perform in accordance with their terms all of the obligations that by the terms of this Agreement are required to be performed by it as a Lender. (d) The Administrative Agent acting for this purpose (but only for this purpose) as the agent of the Borrowers, shall maintain at its address referred to in Section 8.02 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 Lenders and the Term Loan Commitment of, and principal amount of the Term Loan Advances 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 Borrowers, the Agents and the Lenders shall treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrowers or any Agent or any Lender at any reasonable time and from time to time upon reasonable prior notice. (e) Notwithstanding anything to the contrary contained in clause (b) above, the Term Loan Advances (including the Notes evidencing such Term Loan Advances) are registered obligations and the right, title, and interest of the Lenders and their assignees in and to such Term Loan Advances shall be transferable only upon notation of such transfer in the Register. A Note shall only evidence the Lender’s or an assignee’s right title and interest in and to the related Term Loan Advance, and in no event is any such Note to be considered a bearer instrument or obligation. This Section 8.07 shall be construed so that the Term Loan Advances are at all times maintained in “registered form” within the meaning of sections 163(f), 871(h)(2) and 881(c)(2) of the Internal Revenue Code and any related regulations (or any successor provisions of the Internal Revenue Code or such regulations). Solely for purposes of this and for tax purposes only, the Administrative Agent shall act as each Borrower’s agent for purposes of maintaining such notations of transfer in the Register. (fc) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an ~~assignee~~assignee representing that it is an Eligible Assignee, together with any Note or Notes subject to such assignment, the ~~Administrative~~ Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit C hereto, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to ~~BMCA~~ the Borrower. (d) The Agent shall maintain at its address referred to in Section 8.02 a copy of each Assumption Agreement and each other Agent. In the case of any assignment by a Lender, within five Business Days after its receipt of such notice, the Borrowers, at their own expense, shall, if requested by the assignee, execute and deliver to the Administrative Agent in exchange for the surrendered Note or Notes an amended and restated Note (which shall be marked “Amended and Restated”) to the order of such Eligible Assignee in an amount equal to the Term Loan Commitment assumed by it under each Facility pursuant to such Assignment and Acceptance ~~and, if any assigning Lender has retained a Term Loan Commitment hereunder under such Facility~~ delivered to and ~~has requested a replacement Note, an amended and restated Note to the order of such assigning Lender in an amount equal to the Term Loan Commitment retained~~ accepted by it ~~hereunder. Such amended~~ and ~~restated Note or Notes shall be in an aggregate principal amount equal to~~ a register for the ~~aggregate~~ recordation of the names and addresses of the Lenders and the Commitment of, and principal amount of ~~such surrendered Note or Notes~~the Advances owing to, each Lender from time to time (the “Register”). The entries in the Register shall be ~~dated~~ conclusive and binding for all purposes, absent manifest error, and the ~~effective date~~ Borrower, the Agent and the Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of ~~such Assignment~~ this Agreement. The Register shall be available for inspection by the Borrower or any Lender at any reasonable time and ~~Acceptance and shall otherwise be in substantially the form of Exhibit A hereto~~from time to time upon reasonable prior notice. (ge) Each Lender may sell participations to one or more ~~Persons~~ banks or other entities (other than ~~any Loan Party~~ the Borrower or any of its Affiliates) in or to all or a portion of its rights and obligations under this Agreement (~~including~~ including, without limitation, all or a portion of its ~~Term Loan Commitments~~Commitment, the ~~Term Loan~~ Advances owing to it and ~~the~~ any Note or Notes ~~(if any)~~ held by it); provided, however, that (i) such Lender’s obligations under this Agreement (~~including~~ including, without limitation, its ~~Term Loan Commitments~~Commitment to the Borrower hereunder) shall remain unchanged, (ii) 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, (iv) the ~~Borrowers~~Borrower, the ~~Agents~~ Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and (v) no participant under any such participation shall have any right to approve any amendment or waiver of any provision of this Agreement or any ~~Loan Document~~Note, or any consent to any departure by ~~any Loan Party~~ the Borrower therefrom, except to the extent that such amendment, waiver or consent ~~requires~~ would reduce the ~~consent~~ principal of, or interest on, the Notes or any fees or other amounts payable hereunder subject to such participation, in each case to the extent subject to such participation, or postpone any date fixed for any payment of ~~all Lenders~~principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation. (hf) Any Lender may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section 8.07, disclose to the assignee or participant or proposed assignee or ~~participant~~ participant, any information relating to the ~~Borrowers~~ Borrower furnished to such Lender by or on behalf of the ~~Borrowers~~Borrower; ~~provided, however,~~ 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~~ Borrower Information relating to the Borrower received by it from such ~~Lender in accordance with the terms of Section 8.09~~Lender. (ig) Notwithstanding any other provision set forth in this Agreement, any Lender may at any time create a security interest in all or any portion of its rights under this Agreement (~~including~~ including, without limitation, the ~~Term Loan~~ Advances owing to it and ~~the~~ any 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 System. (jh) Notwithstanding anything to the contrary contained herein, if at any time any Lender that is ~~a fund that invests in bank loans may create a security interest in~~ also an Issuing Bank assigns all ~~or any portion~~ of its Revolving Credit Commitment and Advances pursuant to subsection (a) above, such Lender may, upon 30 days’ notice to the ~~Term Loan Advances owing to it~~ Borrower and the ~~Note or Notes held by it to~~ Lenders, resign as Issuing Bank. In the trustee for holders of obligations owed, or securities issued, by such fund as security for such obligations or securities, provided, that unless and until such trustee actually becomes a Lender in compliance with the other provisions of this Section 8.07, (i) no such pledge shall release the pledging Lender from any of its obligations under the Loan Documents and (ii) such trustee shall not be entitled to exercise any of the rights of a Lender under the Loan Documents even though such trustee may have acquired ownership rights with respect to the pledged interest through foreclosure or otherwise. (k) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Lender”) may grant to a special purpose funding vehicle identified as such in writing from time to time by the Granting Lender to the Administrative Agent and BMCA (an “SPC”) the option to provide all or any part event of any ~~Term Loan Advance that~~ such Granting Lender would otherwise be obligated to make pursuant to this Agreement, provided that (i) nothing herein shall constitute a commitment by any SPC to fund any Term Loan Advance, and (ii) if an SPC elects not to exercise such option or otherwise fails to make all or any part of such Term Loan Advanceresignation as Issuing Bank, the Granting Lender shall be obligated to make such Term Loan Advance pursuant to the terms hereof. The making of an Advance by an SPC hereunder shall utilize the Term Loan Commitment of the Granting Lender to the same extent, and as if, such Term Loan Advance were made by such Granting Lender. Each party hereto hereby agrees that (i) no SPC shall be liable for any indemnity or similar payment obligation under this Agreement for which a Lender would be liable, (ii) no SPC Borrower shall be entitled to appoint from among the ~~benefits~~ Lenders a successor Issuing Bank hereunder; provided, however, that no failure by the Borrower to appoint any such successor shall affect the resignation of ~~Sections 2.09~~ such Lender as Issuing Bank. If any such Lender resigns as Issuing Bank, it shall retain all the rights and ~~2.11~~ obligations of an Issuing Bank hereunder with respect to all Letters of Credit issued by it in such capacity outstanding as of the effective date of its resignation as Issuing Bank (~~or any other increased costs protection provision) and (iii) the Granting Bank shall for all purposes,~~ including the ~~approval of any amendment~~ right to require the Lenders to make Advances or waiver of any provision of any Loan Document, remain the Lender of record hereunder. In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior fund participations in respect thereof pursuant to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior Debt of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency, or liquidation proceeding under the laws of the United States or any State thereof. Notwithstanding anything to the contrary contained in this Agreement, any SPC may (i) with notice to, but without prior consent of, BMCA and the Administrative Agent and with the payment of a processing fee of $500 and without paying any processing fee therefor, assign all or any portion of its interest in any Term Loan Advance to the Granting Lender and (ii) disclose on a confidential basis any non-public information relating to its funding of Term Loan Advance to any rating agency, commercial paper dealer or provider of any surety or guarantee or credit or liquidity enhancement to such SPC. This subsection (k) may not be amended without the prior written consent of each Granting Lender, all or any part of whose Term Loan Advances are being funded by the SPC at the time of such amendmentSection 2.03(b)).

Appears in 1 contract

Samples: Credit Agreement (Coventry Health Care Inc)

Assignments and Participations. (a) Each Lender ~~may, upon at least five Business Days’ notice to such Lender and the Administrative Agent,~~ may assign to one or more ~~Eligible Assignees~~ Persons all or a portion of its rights and obligations under this Agreement (~~including~~ including, without limitation, all or a portion of its ~~Term Loan~~ Commitment, and the ~~Term Loan~~ Committed Advances owing to it and the Committed Note or Notes held by it); provided, however, that (i) each such assignment (other than assignment to an affiliate of such Lender) shall require the prior written consent of the Borrower, which consent shall not be unreasonably withheld or delayed, and which consent of the Borrower shall not be required if an Event of Default exists, (ii) each such assignment shall be of a ~~uniform~~constant, and not a varying, percentage of all rights and obligations under this ~~Agreement~~Agreement (other than any right to make Uncommitted Advances, Uncommitted Advances owing to it and Uncommitted Notes), (iiiii) except in the case of an assignment to a Person that, immediately prior to such assignment, was a ~~Lender, an Affiliate of any Lender or an Approved Fund of any~~ Lender or an assignment of all of a Lender’s 's rights and obligations under this Agreement, the ~~aggregate~~ amount of the ~~Term Loan Commitments or Term Loan Advances~~ Commitment of the assigning Lender being assigned ~~to such Eligible Assignee~~ pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $5,000,000 (or ~~such lesser amount as shall be approved by the Administrative Agent and~~an integral multiple of $1,000,000 in excess thereof, ~~so long as no Default shall have occurred~~ and ~~be continuing at the time of effectiveness of such assignment, BMCA), (iii) each such assignment shall be to an Eligible Assignee,~~ (iv) except in the case of an assignment by a Person that, immediately prior to such assignment, was a Lender, to one of its Affiliates, no such assignments shall be permitted without the consent of the Administrative Agent and, so long as no Default shall have occurred and be continuing at the time of effectiveness of such assignment, BMCA (in each case, which consents shall not be unreasonably withheld) and (v) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and ~~Acceptance~~Acceptance (which shall include the agreement of the assignee party to such assignment, for the benefit of the Borrower, to be bound by the terms and provisions of this Agreement to the same extent as if it were an original party hereto), together with any Committed Note ~~or Notes~~ subject to such assignment and the assignor or assignee shall pay to the Administrative Agent a processing and recordation fee of $3,500~~. (b)~~ . Upon such execution, delivery, acceptance and recording, from and after the effective date specified in ~~such~~ each Assignment and Acceptance, (ix) the assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, have the rights and obligations of a Lender hereunder and (iiy) the Lender assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights ~~(other than its rights under Sections 2.09, 2.11 and 8.04 to the extent any claim thereunder relates to an event arising prior to such assignment)~~ and be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all of or the remaining portion of an assigning Lender’s 's rights and obligations under this Agreement, such Lender shall cease to be a party hereto). (cb) By executing and delivering an Assignment and Acceptance, ~~each~~ the Lender assignor thereunder and ~~each~~ the assignee thereunder confirm to and agree with each other and the other parties ~~thereto and~~ hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with ~~any Loan Document~~ this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value ~~of, or the perfection or priority~~ of ~~any lien or security interest created or purported to be created under or in connection with, any Loan Document~~ this Agreement or any other instrument or document furnished pursuant ~~thereto~~hereto; (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of ~~any Loan Party~~ the Borrower or the performance or observance by ~~any Loan Party~~ the Borrower of any of its obligations under ~~any Loan Document~~ this Agreement or any other instrument or document furnished pursuant ~~thereto~~hereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 4.01 and such other documents and information as it has deemed appropriate to make its own credit analysis CREDIT AGREEMENT and decision to enter into such Assignment and Acceptance; (iv) such assignee will, independently and without reliance upon ~~any~~ the Administrative Agent, such assigning Lender or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) such assignee ~~confirms that it is an Eligible Assignee; (vi) such assignee~~ appoints and authorizes ~~each~~ the Administrative Agent to take such action as agent on its behalf and to exercise such powers and discretion under ~~the Loan Documents~~ this Agreement as are delegated to ~~such~~ the Administrative Agent by the terms ~~hereof and thereof~~hereof, together with such powers and discretion as are reasonably incidental thereto; and (~~vii~~vi) such assignee agrees that it will perform in accordance with their terms all of the obligations that by the terms of this Agreement are required to be performed by it as a Lender. (c) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee, together with any Committed Note or Notes subject to such assignment, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit G hereto, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the Borrower. In the case of any Lender that holds a Committed Note, within five Business Days after its receipt of such notice, the Borrower, at its own expense, shall execute and deliver to the Administrative Agent in simultaneous exchange for the surrendered Committed Note a new Committed Note to the order of such assignee in an amount equal to the Commitment assumed by it pursuant to such Assignment and Acceptance and, if the assigning Lender has retained a Commitment hereunder, a new Committed Note to the order of the assigning Lender in an amount equal to the Commitment retained by it hereunder. Such new Committed Note or Notes shall be in an aggregate principal amount equal to the aggregate principal amount of such surrendered Committed Note or Notes, shall be dated the effective date of such Assignment and Acceptance and shall otherwise be in substantially the form of Exhibit H-2. Such Assignment and Acceptance shall be deemed to amend this Agreement to the extent, and only to the extent, necessary to reflect the addition of such Person as a Lender and the resulting adjustment of the Commitments, if any, arising from such assignment of Commitments to such Person. (d) The Administrative ~~Agent~~ Agent, acting solely for this purpose ~~(but only for this purpose)~~ as ~~the~~ an agent of the ~~Borrowers~~Borrower, shall maintain at its address referred to in Section 8.02 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 Lenders and the ~~Term Loan~~ Commitment of, and principal amount of the ~~Term Loan~~ 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 ~~Borrowers~~Borrower, the ~~Agents~~ Administrative Agent and the Lenders ~~shall~~ 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 Agent~~ Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice. (e) Notwithstanding anything to the contrary contained in clause (b) above, the Term Loan Advances (including the Notes evidencing such Term Loan Advances) are registered obligations and the right, title, and interest of the Lenders and their assignees in and to such Term Loan Advances shall be transferable only upon notation of such transfer in the Register. A Note shall only evidence the Lender’s or an assignee’s right title and interest in and to the related Term Loan Advance, and in no event is any such Note to be considered a bearer instrument or obligation. This Section 8.07 shall be construed so that the Term Loan Advances are at all times maintained in “registered form” within the meaning of sections 163(f), 871(h)(2) and 881(c)(2) of the Internal Revenue Code and any related regulations (or any successor provisions of the Internal Revenue Code or such regulations). Solely for purposes of this and for tax purposes only, the Administrative Agent shall act as each Borrower’s agent for purposes of maintaining such notations of transfer in the Register. (f) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee, together with any Note or Notes subject to such assignment, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit C hereto, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to BMCA and each other Agent. In the case of any assignment by a Lender, within five Business Days after its receipt of such notice, the Borrowers, at their own expense, shall, if requested by the assignee, execute and deliver to the Administrative Agent in exchange for the surrendered Note or Notes an amended and restated Note (which shall be marked “Amended and Restated”) to the order of such Eligible Assignee in an amount equal to the Term Loan Commitment assumed by it under each Facility pursuant to such Assignment and Acceptance and, if any assigning Lender has retained a Term Loan Commitment hereunder under such Facility and has requested a replacement Note, an amended and restated Note to the order of such assigning Lender in an amount equal to the Term Loan Commitment retained by it hereunder. Such amended and restated 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 Assignment and Acceptance and shall otherwise be in substantially the form of Exhibit A hereto. (g) Each Lender may sell participations to one or more ~~Persons (~~banks or other ~~than any Loan Party~~ financial institutions, or ~~any~~ other entities engaged in making, purchasing, holding or otherwise investing in bank loans and similar extensions of ~~its Affiliates)~~ credit in ~~or to~~ the ordinary course of their business, in all or a portion of its rights ~~and~~ and/or obligations under this Agreement (~~including~~ including, without limitation, all or a portion of its ~~Term Loan Commitments,~~ Commitment and the ~~Term Loan~~ Advances owing to it and the Note or Notes ~~(if any)~~ held by it); ~~provided, however,~~ provided that (i) such Lender’s 's obligations under this Agreement (~~including~~ including, without limitation, its ~~Term Loan Commitments~~Commitment) shall remain unchanged, (ii) such Lender shall remain solely responsible to the ~~other parties hereto~~ CREDIT AGREEMENT Borrower for the performance of such obligations, (iii) ~~such Lender shall remain~~ the ~~holder of any such Note for all purposes of this Agreement, (iv) the Borrowers, the Agents and the other Lenders~~ Borrower shall continue to deal solely and directly with such Lender in connection with such Lender’s 's rights and obligations under this Agreement and (viv) ~~no participant under any~~ such ~~participation shall have any~~ participant's right to ~~approve any amendment or waiver of any provision of any Loan Document, or any~~ consent to any ~~departure by any Loan Party therefrom, except to the extent that such amendment~~modification, waiver or ~~consent requires~~ release of any of the ~~consent~~ provisions of ~~all Lenders. (h) Any Lender may, in connection with any assignment or participation or proposed assignment or participation pursuant to~~ this ~~Section 8.07, disclose~~ Agreement shall be limited to the ~~assignee~~ right to consent to (A) any reduction in principal, interest or ~~participant or proposed assignee or participant any information relating to the Borrowers furnished~~ fees payable to such Lender by or on behalf of the Borrowers; provided, however, 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 received by it from such Lender in accordance with the terms of Section 8.09. (i) Notwithstanding any other provision set forth in under this Agreement, (B) the postponement of any ~~Lender may at~~ date fixed for the payment of any ~~time create a security~~ principal, interest ~~in all~~ or ~~any portion of its rights~~ fees under this Agreement and (~~including the Term Loan Advances owing to it and the Note or Notes held by it~~C) ~~in favor of~~ any ~~Federal Reserve Bank in accordance with Regulation A of the Board of Governors of the Federal Reserve System. (j) Notwithstanding anything~~ amendments to the contrary contained herein, any Lender that is a fund that invests in bank loans may create a security interest in all or any portion of the Term Loan Advances owing to it and the Note or Notes held by it to the trustee for holders of obligations owed, or securities issued, by such fund as security for such obligations or securities, provided, that unless and until such trustee actually becomes a Lender in compliance with the other provisions of this Section 8.07, foregoing clauses (i) no such pledge shall release the pledging Lender from any of its obligations under the Loan Documents and (ii) such trustee shall not be entitled to exercise any of the rights of a Lender under the Loan Documents even though such trustee may have acquired ownership rights with respect to the pledged interest through foreclosure or otherwise. (k) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Lender”) may grant to a special purpose funding vehicle identified as such in writing from time to time by the Granting Lender to the Administrative Agent and BMCA (an “SPC”) the option to provide all or any part of any Term Loan Advance that such Granting Lender would otherwise be obligated to make pursuant to this Agreement, provided that (i) nothing herein shall constitute a commitment by any SPC to fund any Term Loan Advance, and (ii) if an SPC elects not to exercise such option or otherwise fails to make all or any part of such Term Loan Advance, the Granting Lender shall be obligated to make such Term Loan Advance pursuant to the terms hereof. The making of an Advance by an SPC hereunder shall utilize the Term Loan Commitment of the Granting Lender to the same extent, and as if, such Term Loan Advance were made by such Granting Lender. Each party hereto hereby agrees that (i) no SPC shall be liable for any indemnity or similar payment obligation under this Agreement for which a Lender would be liable, (ii) no SPC shall be entitled to the benefits of Sections 2.09 and 2.11 (or any other increased costs protection provisionA) and (iii) the Granting Bank shall for all purposes, including the approval of any amendment or waiver of any provision of any Loan Document, remain the Lender of record hereunder. In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior Debt of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency, or liquidation proceeding under the laws of the United States or any State thereof. Notwithstanding anything to the contrary contained in this Agreement, any SPC may (i) with notice to, but without prior consent of, BMCA and the Administrative Agent and with the payment of a processing fee of $500 and without paying any processing fee therefor, assign all or any portion of its interest in any Term Loan Advance to the Granting Lender and (ii) disclose on a confidential basis any non-public information relating to its funding of Term Loan Advance to any rating agency, commercial paper dealer or provider of any surety or guarantee or credit or liquidity enhancement to such SPC. This subsection (k) may not be amended without the prior written consent of each Granting Lender, all or any part of whose Term Loan Advances are being funded by the SPC at the time of such amendmentB).

Appears in 1 contract

Samples: Credit Agreement (Stanley Works)

Assignments and Participations. (a) Each Lender ~~may, upon at least five Business Days’ notice to such Lender and the Administrative Agent,~~ may assign to one or more Eligible Assignees all or a portion of its rights and obligations under this Agreement (~~including~~ including, without limitation, all or a portion of its ~~Term Loan Commitment~~Commitment or Commitments, the ~~Term Loan~~ Advances owing to it and the Note or Notes held by it); provided, however, that (i) each such assignment shall be of a uniform, and not a varying, percentage of all rights and obligations under ~~this Agreement~~and in respect of one or more of the Facilities, (ii) except in the case of an assignment to a Person that, immediately prior to such assignment, was a Lender, an Affiliate of any Lender or ~~an Approved~~ a Fund Affiliate of any Lender or an assignment of all of a Lender’s 's rights and obligations under this Agreement, the aggregate amount of the ~~Term Loan~~ Commitments ~~or Term Loan Advances~~ being assigned to such Eligible Assignee pursuant to such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $5,000,000 under each Facility or an integral multiple of $1,000,000 in excess thereof (or such lesser amount as shall be approved by the Administrative Agent and, so long as no Default shall have occurred and be continuing at the time of effectiveness of such assignment, ~~BMCA~~the Borrower), (iii) each such assignment shall be to an Eligible Assignee, (iv) ~~except in the case of an assignment by a Person that, immediately prior to such assignment, was a Lender, to one of its Affiliates,~~ no such assignments shall be permitted without the consent of the Administrative Agent ~~and, so long as no Default~~ (such consent not to be unreasonably withheld or delayed) until the Administrative Agent shall have ~~occurred and be continuing at~~ notified the ~~time~~ Lender Parties that syndication of ~~effectiveness of such assignment, BMCA (in each case, which consents shall not be unreasonably withheld)~~ the Commitments hereunder has been completed and (v) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together with any Note or Notes subject to such assignment ~~and~~ and, except if such assignment is being made by a Lender to an Affiliate or Fund Affiliate of such Lender, a processing and recordation fee of $3,500. (b) Upon such execution, delivery, acceptance and recording, from and after the effective date specified in such 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, have the rights and obligations of a Lender or Issuing Bank, as the case may be, hereunder and (ii) the Lender or Issuing Bank assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (other than its rights under Sections ~~2.09~~2.10, ~~2.11~~ 2.12, 7.06, 8.05 and ~~8.04~~ 9.04 to the extent any claim thereunder relates to an event arising prior to such assignment) and be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all of the remaining portion of an assigning Lender’s 's or Issuing Bank's rights and obligations under this Agreement, such Lender or Issuing Bank shall cease to be a party hereto). (c) By executing and delivering an Assignment and Acceptance, each Lender Party assignor thereunder and each assignee thereunder confirm to and agree with each other and the other parties thereto and hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender Party makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with any Loan Document or the 77 execution, legality, validity, enforceability, genuineness, sufficiency or value of, or the perfection or priority of any lien or security interest created or purported to be created under or in connection with, any Loan Document or any other instrument or document furnished pursuant thereto; (ii) such assigning Lender Party makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party or the performance or observance by any Loan Party of any of its obligations under any Loan Document or any other instrument or document furnished pursuant thereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 4.01 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) such assignee will, independently and without reliance upon ~~any~~ the Administrative Agent, such assigning Lender Party or any other Lender Party and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) such assignee confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes ~~each~~ the Administrative Agent to take such action as agent on its behalf and to exercise such powers and discretion under the Loan Documents as are delegated to ~~such~~ the Administrative Agent by the terms hereof and thereof, together with such powers and discretion as are reasonably incidental thereto; and (vii) such assignee agrees that it will perform in accordance with their terms all of the obligations that by the terms of this Agreement are required to be performed by it as a ~~Lender~~Lender or Issuing Bank, as the case may be. (d) The Administrative Agent ~~acting for this purpose (but only for this purpose) as the agent of the Borrowers,~~ shall maintain at its address referred to in Section ~~8.02~~ 9.02 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 ~~Lenders~~ Lender Parties and the ~~Term Loan~~ Commitment under each Facility of, and principal amount of the ~~Term Loan~~ Advances owing under each Facility to, each Lender Party from time to time (the ~~“Register”~~"REGISTER"). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the ~~Borrowers~~Borrower, the ~~Agents~~ Administrative Agent and the ~~Lenders shall~~ Lender Parties may treat each Person whose name is recorded in the Register as a Lender Party hereunder for all purposes of this Agreement. The Register shall be available for inspection by the ~~Borrowers~~ Borrower or ~~any~~ the Administrative Agent or any Lender Party at any reasonable time and from time to time upon reasonable prior notice. (e) Notwithstanding anything to the contrary contained in clause (b) above, the Term Loan Advances (including the Notes evidencing such Term Loan Advances) are registered obligations and the right, title, and interest of the Lenders and their assignees in and to such Term Loan Advances shall be transferable only upon notation of such transfer in the Register. A Note shall only evidence the Lender’s or an assignee’s right title and interest in and to the related Term Loan Advance, and in no event is any such Note to be considered a bearer instrument or obligation. This Section 8.07 shall be construed so that the Term Loan Advances are at all times maintained in “registered form” within the meaning of sections 163(f), 871(h)(2) and 881(c)(2) of the Internal Revenue Code and any related regulations (or any successor provisions of the Internal Revenue Code or such regulations). Solely for purposes of this and for tax purposes only, the Administrative Agent shall act as each Borrower’s agent for purposes of maintaining such notations of transfer in the Register. (f) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender Party and an assignee, together with any Note or Notes subject to such assignment, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit C D hereto, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to ~~BMCA~~ the Borrower and each other Agent. In the case of any assignment by a Lender, within five Business Days after its receipt of such notice, the ~~Borrowers~~Borrower, at ~~their~~ its own expense, shall, if requested by the ~~assignee~~applicable Lender, execute and deliver to the Administrative Agent in exchange for the surrendered Note or Notes ~~an amended and restated~~ a new Note ~~(which shall be marked “Amended and Restated”)~~ to the order of such Eligible Assignee in an amount equal to the ~~Term Loan~~ Commitment assumed by it under each Facility pursuant to such Assignment and Acceptance and, if any assigning Lender has retained a ~~Term Loan~~ Commitment hereunder under such ~~Facility and has requested~~ Facility, a ~~replacement Note, an amended and restated~~ new Note to the order of such assigning Lender in an amount equal to the ~~Term Loan~~ Commitment retained by it hereunder. Such ~~amended and restated~~ new Note or ~~Notes~~ Notes, if any, shall be in an aggregate principal amount equal to the aggregate principal amount of such surrendered Note or Notes, shall be dated the effective date of such Assignment and Acceptance and shall otherwise be in substantially the form of Exhibit A hereto. (f) Each Issuing Bank may assign to one or more Eligible Assignees all or a portion of its rights and obligations under the undrawn portion of its Letter of Credit Commitment at any time; provided, however, that (i) except in the case of an assignment to a Person that immediately prior to such assignment was an Issuing Bank or an assignment of all of an Issuing Bank's rights and obligations under this Agreement, the amount of the Letter of Credit Commitment of the assigning Issuing Bank being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $10,000,000 and shall be in an integral multiple of $1,000,000 in excess thereof, (ii) each such assignment shall be to an Eligible Assignee and (iii) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together with a processing and recordation fee of $3,500, provided, that such fee shall not be payable if the assigning Issuing Bank is making such assignment simultaneously with the assignment in its capacity as a Lender of all or a portion of its Revolving Credit Commitment to the same Eligible Assignee. (g) Each Lender Party may sell participations to one or more Persons (other than any Loan Party or any of its Affiliates) in or to all or a portion of its rights and obligations under this Agreement (~~including~~ including, without limitation, all or a portion of its ~~Term Loan~~ Commitments, the ~~Term Loan~~ Advances owing to it and the Note or Notes (if any) held by ~~it); provided~~it);provided, however, that (i) such ~~Lender’s~~ Lender Parry's obligations under this Agreement (~~including~~ including, without limitation, its ~~Term Loan~~ Commitments) shall remain unchanged, (ii) such Lender Party shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) such Lender Party shall remain the holder of any such Note for all purposes of this Agreement, (iv) the ~~Borrowers~~Borrower, the ~~Agents~~ Administrative Agent and the other ~~Lenders~~ Lender Parties shall continue to deal solely and directly with such Lender Party in connection with such ~~Lender’s~~ Lender Party's rights and obligations under this ~~Agreement and~~ Agreement, (v) no participant under any such participation shall have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent ~~requires~~ would reduce the ~~consent~~ principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation or postpone any date fixed for any payment of principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, or release all ~~Lenders~~or substantially all of the Collateral and (vi) if, at the time of such sale, such Lender Party was entitled to payments under Section 2.12(a) in respect of United States withholding tax with respect to interest paid at such date, then, to such extent, the term Taxes shall include (in addition to withholding taxes that may be imposed in the future or other amounts otherwise includable in Taxes) United States withholding tax, if any, applicable with respect to such participant on such date, provided, that such participant complies with the requirements of Section 2.12(e). (h) Any Lender Party may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section ~~8.07~~9.07, disclose to the assignee or participant or proposed assignee or participant any information relating to the ~~Borrowers~~ Borrower furnished to such Lender Party by or on behalf of the ~~Borrowers~~Borrower; provided, however, 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 received by it from such Lender ~~in accordance with the terms of Section 8.09~~Party. (i) Notwithstanding any other provision set forth in this Agreement, any Lender Party may at any time create a security interest in all or any portion of its rights under this Agreement (~~including~~ including, without limitation, the ~~Term Loan~~ 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 System. (j) Notwithstanding anything to the contrary contained herein, any Lender that is a fund that invests in bank loans may create a security interest in all or any portion of the Term Loan Advances owing to it and the Note or Notes held by it to the trustee for holders of obligations owed, or securities issued, by such fund as security for such obligations or securities, provided, that unless and until such trustee actually becomes a Lender in compliance with the other provisions of this Section 8.07, (i) no such pledge shall release the pledging Lender from any of its obligations under the Loan Documents and (ii) such trustee shall not be entitled to exercise any of the rights of a Lender under the Loan Documents even though such trustee may have acquired ownership rights with respect to the pledged interest through foreclosure or otherwise. (k) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Lender”) may grant to a special purpose funding vehicle identified as such in writing from time to time by the Granting Lender to the Administrative Agent and BMCA (an “SPC”) the option to provide all or any part of any Term Loan Advance that such Granting Lender would otherwise be obligated to make pursuant to this Agreement, provided that (i) nothing herein shall constitute a commitment by any SPC to fund any Term Loan Advance, and (ii) if an SPC elects not to exercise such option or otherwise fails to make all or any part of such Term Loan Advance, the Granting Lender shall be obligated to make such Term Loan Advance pursuant to the terms hereof. The making of an Advance by an SPC hereunder shall utilize the Term Loan Commitment of the Granting Lender to the same extent, and as if, such Term Loan Advance were made by such Granting Lender. Each party hereto hereby agrees that (i) no SPC shall be liable for any indemnity or similar payment obligation under this Agreement for which a Lender would be liable, (ii) no SPC shall be entitled to the benefits of Sections 2.09 and 2.11 (or any other increased costs protection provision) and (iii) the Granting Bank shall for all purposes, including the approval of any amendment or waiver of any provision of any Loan Document, remain the Lender of record hereunder. In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior Debt of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency, or liquidation proceeding under the laws of the United States or any State thereof. Notwithstanding anything to the contrary contained in this Agreement, any SPC may (i) with notice to, but without prior consent of, BMCA and the Administrative Agent and with the payment of a processing fee of $500 and without paying any processing fee therefor, assign all or any portion of its interest in any Term Loan Advance to the Granting Lender and (ii) disclose on a confidential basis any non-public information relating to its funding of Term Loan Advance to any rating agency, commercial paper dealer or provider of any surety or guarantee or credit or liquidity enhancement to such SPC. This subsection (k) may not be amended without the prior written consent of each Granting Lender, all or any part of whose Term Loan Advances are being funded by the SPC at the time of such amendment.

Appears in 1 contract

Samples: Credit Agreement (Maguire Properties Inc)

Assignments and Participations. (a) Each Lender ~~may, upon at least five Business Days’ notice to such Lender and the Administrative Agent,~~ may assign to one or more Eligible Assignees all or a portion of its rights and obligations under this Agreement (~~including~~ including, without limitation, all or a portion of its ~~Term Loan Commitment~~Commitment or Commitments, the ~~Term Loan~~ Advances owing to it and the Note or Notes held by it); provided, ~~however,~~ however that (i) each such assignment shall be of a uniform, and not a varying, percentage of all rights and obligations under ~~this Agreement~~and in respect of all of the Facility, (ii) except in the case of an assignment to a Person that, immediately prior to such assignment, was a Lender, an Affiliate of any Lender or ~~an Approved~~ a Fund Affiliate of any Lender or an assignment of all of a Lender’s rights and obligations under this Agreement, the aggregate amount of the ~~Term Loan~~ Commitments ~~or Term Loan Advances~~ being assigned to such Eligible Assignee pursuant to such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $5,000,000 or an integral multiple of $1,000,000 in excess thereof (or such lesser amount as shall be approved by the Administrative Agent and, so long as no Default shall have occurred and be continuing at the time of effectiveness of such assignment, ~~BMCA~~the Borrower), (iii) each such assignment shall be to an Eligible Assignee, (iv) except in the case of an assignment by to a Person that, immediately prior to such assignment, was a Lender, an Affiliate of any Lender or a Fund Affiliate of any Lender, in which case notice of such assignment shall be provided to ~~one of its Affiliates~~the Administrative Agent and the Borrower, no such assignments shall be permitted without the consent, which such consent shall not be unreasonably withheld or delayed, of (A) the Administrative Agent ~~and,~~ and (B) so long as no Default or Event of Default shall have occurred and be continuing at the time of the effectiveness of such assignment, ~~BMCA~~ the Borrower, and if the Borrower does not respond to any such request for consent within ten (~~in each case~~10) Business Days, ~~which consents~~ the Borrower shall ~~not~~ be ~~unreasonably withheld)~~ deemed to have consented, and (v) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together with any Note or Notes subject to such assignment ~~and~~ and, except if such assignment is being made by a Lender to an Affiliate or Fund Affiliate of such Lender, a processing and recordation fee of $3,500. (b) Upon such execution, delivery, acceptance and recording, from and after the effective date specified in such 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, have the rights and obligations of a Lender or Issuing Bank, as the case may be, hereunder and (ii) the Lender or Issuing Bank assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (other than its rights under Sections ~~2.09~~2.10, ~~2.11~~ 2.12, 7.06, 8.05 and ~~8.04~~ 9.04 to the extent any claim thereunder relates to an event arising prior to such assignment) and be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all of the remaining portion of an assigning Lender’s or Issuing Bank’s rights and obligations under this Agreement, such Lender or Issuing Bank shall cease to be a party hereto). (c) By executing and delivering an Assignment and Acceptance, each Lender Party assignor thereunder and each assignee thereunder confirm to and agree with each other and the other parties thereto and hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender Party makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with any Loan Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value of, or the perfection or priority of any lien or security interest created or purported to be created under or in connection with, any Loan Document or any other instrument or document furnished pursuant thereto; (ii) such assigning Lender Party makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party or the performance or observance by any Loan Party of any of its obligations under any Loan Document or any other instrument or document furnished pursuant thereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 4.01 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) such assignee will, independently and without reliance upon ~~any~~ the Administrative Agent, such assigning Lender Party or any other Lender Party and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) such assignee confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes ~~each~~ the Administrative Agent to take such action as agent on its behalf and to exercise such powers and discretion under the Loan Documents as are delegated to ~~such~~ the Administrative Agent by the terms hereof and thereof, together with such powers and discretion as are reasonably incidental thereto; and (vii) such assignee agrees that it will perform in accordance with their terms all of the obligations that by the terms of this Agreement are required to be performed by it as a ~~Lender~~Lender or Issuing Bank, as the case may be. (d) The Administrative Agent ~~acting for this purpose (but only for this purpose) as the agent of the Borrowers,~~ shall maintain at its address referred to in Section ~~8.02~~ 9.02 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 ~~Lenders~~ Lender Parties and the ~~Term Loan~~ Commitment under each Facility of, and principal amount of the ~~Term Loan~~ Advances owing under each Facility to, each Lender Party from time to time (the “Register”). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the ~~Borrowers~~Borrower, the ~~Agents~~ Administrative Agent and the ~~Lenders shall~~ Lender Parties may treat each Person whose name is recorded in the Register as a Lender Party hereunder for all purposes of this Agreement. The Register shall be available for inspection by the ~~Borrowers~~ Borrower or ~~any~~ the Administrative Agent or any Lender Party at any reasonable time and from time to time upon reasonable prior notice. (e) Notwithstanding anything to the contrary contained in clause (b) above, the Term Loan Advances (including the Notes evidencing such Term Loan Advances) are registered obligations and the right, title, and interest of the Lenders and their assignees in and to such Term Loan Advances shall be transferable only upon notation of such transfer in the Register. A Note shall only evidence the Lender’s or an assignee’s right title and interest in and to the related Term Loan Advance, and in no event is any such Note to be considered a bearer instrument or obligation. This Section 8.07 shall be construed so that the Term Loan Advances are at all times maintained in “registered form” within the meaning of sections 163(f), 871(h)(2) and 881(c)(2) of the Internal Revenue Code and any related regulations (or any successor provisions of the Internal Revenue Code or such regulations). Solely for purposes of this and for tax purposes only, the Administrative Agent shall act as each Borrower’s agent for purposes of maintaining such notations of transfer in the Register. (f) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender Party and an assignee, together with any Note or Notes subject to such assignment, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit C E hereto, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to ~~BMCA and each other Agent~~the Borrower. In the case of any assignment by a Lender, within five Business Days after its receipt of such notice, the ~~Borrowers~~Borrower, at ~~their~~ its own expense, shall, if requested by the ~~assignee~~applicable Lender, execute and deliver to the Administrative Agent in exchange for the surrendered Note or Notes ~~an amended and restated~~ a new Note ~~(which shall be marked “Amended and Restated”)~~ to the order of such Eligible Assignee in an amount equal to the ~~Term Loan~~ Commitment assumed by it under each Facility pursuant to such Assignment and Acceptance and, if any assigning Lender has retained a ~~Term Loan~~ Commitment hereunder under such ~~Facility and has requested~~ Facility, a ~~replacement Note, an amended and restated~~ new Note to the order of such assigning Lender in an amount equal to the ~~Term Loan~~ Commitment retained by it hereunder. Such ~~amended and restated~~ new Note or ~~Notes~~ Notes, if any, shall be in an aggregate principal amount equal to the aggregate principal amount of such surrendered Note or Notes, shall be dated the effective date of such Assignment and Acceptance and shall otherwise be in substantially the form of Exhibit ~~A hereto~~A. (f) Each Issuing Bank may assign to one or more Eligible Assignees all or a portion of its rights and obligations under the undrawn portion of its Letter of Credit Commitment at any time; provided, however that (i) except in the case of an assignment to a Person that immediately prior to such assignment was an Issuing Bank or an assignment of all of an Issuing Bank’s rights and obligations under this Agreement, the amount of the Letter of Credit Commitment of the assigning Issuing Bank being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $5,000,000 and shall be in an integral multiple of $1,000,000 in excess thereof, (ii) each such assignment shall be to an Eligible Assignee and (iii) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together with a processing and recordation fee of $3,500, provided that such fee shall not be payable if the assigning Issuing Bank is making such assignment simultaneously with the assignment in its capacity as a Lender of all or a portion of its Commitment to the same Eligible Assignee. (g) Each Lender Party may sell participations to one or more Persons (other than any Loan Party or any of its ~~Affiliates~~Affiliates or any Defaulting Lender) in or to all or a portion of its rights and obligations under this Agreement (~~including~~ including, without limitation, all or a portion of its ~~Term Loan~~ Commitments, the ~~Term Loan~~ Advances owing to it and the Note or Notes (if any) held by it); provided, ~~however,~~ however that (i) such ~~Lender~~Lender Party’s obligations under this Agreement (~~including~~ including, without limitation, its ~~Term Loan~~ Commitments) shall remain unchanged, (ii) such Lender Party shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) such Lender Party shall remain the holder of any such Note for all purposes of this Agreement, (iv) the ~~Borrowers~~Borrower, the ~~Agents~~ Administrative Agent and the other ~~Lenders~~ Lender Parties shall continue to deal solely and directly with such Lender Party in connection with such ~~Lender~~Lender Party’s rights and obligations under this ~~Agreement and~~ Agreement, (v) no participant under any such participation shall have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent ~~requires~~ would reduce the ~~consent of all Lenders. (h) Any Lender may~~principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in ~~connection with any assignment or participation or proposed assignment or participation pursuant to this Section 8.07, disclose~~ each case to the ~~assignee~~ extent subject to such participation, or ~~participant~~ postpone any date fixed for any payment of principal of, or ~~proposed assignee~~ interest on, the Notes or ~~participant~~ any ~~information relating~~ fees or other amounts payable hereunder, in each case to the ~~Borrowers furnished~~ extent subject to such Lender by or on behalf of the Borrowers; provided, however, 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 received by it from such Lender in accordance with the terms of Section 8.09. (i) Notwithstanding any other provision set forth in this Agreement, any Lender may at any time create a security interest in all or any portion of its rights under this Agreement (including the Term Loan 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 System. (j) Notwithstanding anything to the contrary contained herein, any Lender that is a fund that invests in bank loans may create a security interest in all or any portion of the Term Loan Advances owing to it and the Note or Notes held by it to the trustee for holders of obligations owed, or securities issued, by such fund as security for such obligations or securities, provided, that unless and until such trustee actually becomes a Lender in compliance with the other provisions of this Section 8.07, (i) no such pledge shall release the pledging Lender from any of its obligations under the Loan Documents and (ii) such trustee shall not be entitled to exercise any of the rights of a Lender under the Loan Documents even though such trustee may have acquired ownership rights with respect to the pledged interest through foreclosure or otherwise. (k) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Lender”) may grant to a special purpose funding vehicle identified as such in writing from time to time by the Granting Lender to the Administrative Agent and BMCA (an “SPC”) the option to provide all or any part of any Term Loan Advance that such Granting Lender would otherwise be obligated to make pursuant to this Agreement, provided that (i) nothing herein shall constitute a commitment by any SPC to fund any Term Loan Advanceparticipation, and (iivi) if an SPC elects not to exercise such option or otherwise fails to make all or any part of such Term Loan Advance, the Granting Lender shall be obligated to make such Term Loan Advance pursuant to the terms hereof. The making of an Advance by an SPC hereunder shall utilize the Term Loan Commitment of the Granting Lender to the same extent, and as if, such Term Loan Advance were made by such Granting Lender. Each party hereto hereby agrees that (i) no SPC shall be liable for any indemnity or similar payment obligation under this Agreement for which a Lender would be liable, (ii) no SPC shall be entitled to the benefits of Sections 2.09 and 2.11 (or any other increased costs protection provision) and (iii) the Granting Bank shall for all purposes, including the approval of any amendment or waiver of any provision of any Loan Document, remain the Lender of record hereunder. In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior Debt of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency, or liquidation proceeding under the laws of the United States or any State thereof. Notwithstanding anything to the contrary contained in this Agreement, any SPC may (i) with notice to, but without prior consent of, BMCA and the Administrative Agent and with the payment of a processing fee of $500 and without paying any processing fee therefor, assign all or any portion of its interest in any Term Loan Advance to the Granting Lender and (ii) disclose on a confidential basis any non-public information relating to its funding of Term Loan Advance to any rating agency, commercial paper dealer or provider of any surety or guarantee or credit or liquidity enhancement to such SPC. This subsection (k) may not be amended without the prior written consent of each Granting Lender, all or any part of whose Term Loan Advances are being funded by the SPC at the time of such ~~amendment.~~sale, such Lender Party was entitled to payments under Section 2.12(a) in respect of United States withholding tax with respect to interest paid at such date, then, to such extent, the term Taxes shall include (in addition to withholding taxes that may be imposed in the future or other amounts otherwise includable in Taxes) United States withholding tax, if any, applicable with respect to such participant on such date, provided that such participant complies with the requirements of Section 2.12

Appears in 1 contract

Samples: Credit Agreement (American Campus Communities Operating Partnership LP)

Assignments and Participations. (a) Each Lender ~~may~~may (and, so long as no Default shall have occurred and be continuing, if demanded by the Borrower (following a demand by such Lender pursuant to Section 2.10 or 2.12 or if such Lender shall be a Defaulting Lender) upon at least ~~five~~ 5 Business Days’ ' notice to such Lender and the Administrative Agent, will) assign to one or more Eligible Assignees all or a portion of its rights and obligations under this Agreement and the other Loan Documents (~~including~~ including, without limitation, all or a portion of its ~~Term Loan Commitment~~Commitment or Commitments, the ~~Term Loan~~ Advances owing to it and the Note or Notes held by it); provided, however, that (i) each such ~~assignment~~ assigmnent shall be of a uniform, and not a varying, percentage of all rights and obligations under ~~this Agreement~~and in respect of one or more Facilities, (ii) except in the case of an assignment to a Person that, immediately prior to such assignment, was a ~~Lender, an Affiliate of any Lender or an Approved Fund of any~~ Lender or an assignment of all of a Lender’s 's rights and obligations under this Agreement, the ~~aggregate~~ amount of the ~~Term Loan~~ Commitment or Commitments ~~or Term Loan Advances~~ of the assigning Lender being assigned ~~to such Eligible Assignee~~ pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $5,000,000 (or such lesser amount as shall be approved by the Administrative Agent and, so long as no Default shall have occurred and be continuing at the time of effectiveness of such assignment, BMCA)5,000,000, (iii) each such assignment shall be to an Eligible Assignee, (iv) ~~except in~~ each such assignment made as a result of a demand by the ~~case of an assignment by a Person that, immediately prior~~ Borrower pursuant to ~~such assignment, was a Lender, to one of its Affiliates, no such assignments~~ this Section 8.07(a) shall be ~~permitted without~~ arranged by the ~~consent of~~ Borrower after consultation with the Administrative Agent ~~and~~and shall be either an assignment of all of the rights and obligations of the assigning Lender under this Agreement and the other Loan Documents or an assignment of a portion of such rights and obligations made concurrently with another such assignment or other such assignments that together cover all of the rights and obligations of the assigning Lender under this Agreement and the other Loan Documents, ~~so long~~ (v) no Lender shall be obligated to make any such assignment as ~~no Default~~ a result of a demand by the Borrower pursuant to this Section 8.07(a) unless and until such Lender shall have ~~occurred and be continuing~~ received one or more payments from either the Borrower or one or more Eligible Assignees in an aggregate amount at least equal to the ~~time~~ aggregate outstanding principal amount of ~~effectiveness~~ the Advances owing to such Lender, together with accrued interest thereon to the date of payment of such ~~assignment~~principal amount and all other amounts payable to such Lender under this Agreement, ~~BMCA (in each case, which consents shall not be unreasonably withheld)~~ and (vvi) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together with any Note or Notes 175 145 subject to such assignment and a processing and recordation fee of $~~3,500~~1,500 for each Assignment and Acceptance between a Lender and one of its Affiliates or another Lender or $3,000 for each other Assignment and Acceptance, provided, however, that for each such assignment made as a result of a demand by the Borrower pursuant to this Section 8.07(a), the Borrower shall pay to the Administrative Agent the applicable processing and recordation fee. (b) Upon such execution, delivery, acceptance and recording, from and after the effective date specified in such Assignment and Acceptance, (ix) the assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, have the rights and obligations of a Lender or Issuing Bank, as the case may be, hereunder and (iiy) the Lender or Issuing Bank assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (other than its rights under Sections ~~2.09~~2.10, ~~2.11~~ 2.12 and 8.04 to the extent any claim thereunder relates to an event arising prior to such assignment) and be released from its obligations under this Agreement (and, in the case of an ~~Assignment~~ Assigmnent and Acceptance covering all of or the remaining portion of an assigning Lender’s 's or Issuing Bank's rights and obligations under this Agreement, such Lender or Issuing Bank shall cease to be a party hereto). (c) By executing and delivering an Assignment and Acceptance, ~~each~~ the Lender Party assignor thereunder and ~~each~~ the assignee thereunder confirm to and agree with each other and the other parties ~~thereto and~~ hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender Party makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or any other Loan Document or any other instrument or document furnished pursuant hereto or thereto or the execution, legality, validity, enforceability, genuineness, sufficiency or value of, or the perfection or priority of any lien or security interest created or purported to be created under or in connection with, this Agreement or any other Loan Document or any other instrument or document furnished pursuant hereto or thereto; (ii) such assigning Lender Party makes no representation or warranty and assumes no responsibility with respect to the financial condition of the Borrower or any other Loan Party or the performance or observance by any Loan Party of any of its obligations under any Loan Document or any other instrument or document furnished pursuant thereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 4.01 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) such assignee will, independently and without reliance upon any Agent, such assigning Lender Party or any 176 146 other Lender Party and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) such assignee confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes each Agent to take such action as agent on its behalf and to exercise such powers and discretion under the Loan Documents as are delegated to such Agent by the terms ~~hereof and thereof~~hereof, together with such powers and discretion as are reasonably incidental thereto; and (vii) such assignee agrees that it will perform in accordance with their terms all of the obligations ~~that~~ which by the terms of this Agreement are required to be performed by it as a ~~Lender~~Lender or Issuing Bank, as the case may be. (d) The Administrative ~~Agent~~ Agent, acting for this purpose (but only for this purpose) as the agent of the ~~Borrowers~~Borrower, shall maintain at its address referred to in Section 8.02 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 ~~Lenders~~ Lender Parties and the ~~Term Loan~~ Commitment under each Facility of, and principal amount of the ~~Term Loan~~ Advances owing under each Facility to, each Lender Party from time to time (the “"Register”"). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the ~~Borrowers~~Borrower, the Agents and the ~~Lenders~~ Lender Parties shall treat each Person whose name is recorded in the Register as a Lender Party hereunder for all purposes of this Agreement. The Register shall be available for inspection by the ~~Borrowers or any Agent~~ Borrower or any Lender Party at any reasonable time and from time to time upon reasonable prior notice. (e) Notwithstanding anything to the contrary contained in clause (b) above, the Term Loan Advances (including the Notes evidencing such Term Loan Advances) are registered obligations and the right, title, and interest of the Lenders and their assignees in and to such Term Loan Advances shall be transferable only upon notation of such transfer in the Register. A Note shall only evidence the Lender’s or an assignee’s right title and interest in and to the related Term Loan Advance, and in no event is any such Note to be considered a bearer instrument or obligation. This Section 8.07 shall be construed so that the Term Loan Advances are at all times maintained in “registered form” within the meaning of sections 163(f), 871(h)(2) and 881(c)(2) of the Internal Revenue Code and any related regulations (or any successor provisions of the Internal Revenue Code or such regulations). Solely for purposes of this and for tax purposes only, the Administrative Agent shall act as each Borrower’s agent for purposes of maintaining such notations of transfer in the Register. (f) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender Party and an assignee, together with any Note or Notes subject to such assignment, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit C hereto, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to ~~BMCA~~ the Borrower and ~~each~~ the other ~~Agent~~Agents. In the case of any assignment by a Lender, within five Business Days after its receipt of such notice, the ~~Borrowers~~Borrower, at ~~their~~ its own expense, ~~shall, if requested by the assignee,~~ shall execute and deliver to the Administrative Agent in exchange for the surrendered Note or Notes ~~an amended and restated~~ a new Note ~~(which shall be marked “Amended and Restated”)~~ to the order of such Eligible Assignee in an amount equal to the ~~Term Loan~~ Commitment assumed by it under ~~each~~ a Facility pursuant to such Assignment and Acceptance and, if ~~any~~ the assigning Lender has retained a ~~Term Loan~~ Commitment hereunder under such ~~Facility and has requested~~ Facility, a ~~replacement Note, an amended and restated~~ new Note to the order of ~~such~~ the assigning Lender in an amount equal to the ~~Term Loan~~ Commitment retained by it hereunder. Such ~~amended and restated~~ 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 Assignment and Acceptance and shall otherwise be in substantially the form of Exhibit A A-1, X-0, X-0, X-0 , X-0 xx A-6 hereto, as the case may be. 177 147 (f) Each Issuing Bank may assign to one or more Eligible Assignees all or a portion of its rights and obligations under the undrawn portion of its Letter of Credit Commitment at any time; provided, however, that (i) except in the case of an assignment to a Person that immediately prior to such assignment was an Issuing Bank or an assignment of all of an Issuing Bank's rights and obligations under this Agreement, the amount of the Letter of Credit Commitment of the assigning Issuing Bank being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $5,000,000 and shall be in an integral multiple of $1,000,000 in excess thereof, (ii) each such assignment shall be to an Eligible Assignee and (iii) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together with a processing and recordation fee of $3,000. (g) Each Lender Party may sell participations to one or more Persons (other than any Loan Party or any of its Affiliates) in or to all or a portion of its rights and obligations under this Agreement (~~including~~ including, without limitation, all or a portion of its ~~Term Loan~~ Commitments, the ~~Term Loan~~ Advances owing to it and the Note or Notes (if any) held by it); provided, however, that (i) such ~~Lender’s~~ Lender Party's obligations under this Agreement (~~including~~ including, without limitation, its ~~Term Loan~~ Commitments) shall remain unchanged, (ii) such Lender Party shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) such Lender Party shall remain the holder of any such Note for all purposes of this Agreement, (iv) the ~~Borrowers~~Borrower, the ~~Agents~~ Administrative Agent and the other ~~Lenders~~ Lender Parties shall continue to deal solely and directly with such Lender Party in connection with such ~~Lender’s~~ Lender Party's rights and obligations under this Agreement and (v) no participant under any such participation shall have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent ~~requires~~ would reduce the ~~consent~~ principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, postpone any date fixed for any payment of principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, release any Guarantor or Guarantors to the extent that such release would have the effect of releasing all ~~Lenders~~or substantially all of the Collateral, or release all or substantially all of the Collateral. (h) Any Lender Party may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section 8.07, disclose to the assignee or participant or proposed assignee or ~~participant~~ participant, any information relating to the ~~Borrowers~~ Borrower furnished to such Lender Party by or on behalf of the ~~Borrowers~~Borrower; provided, however, that, prior to any such disclosure, the assignee or participant or proposed assignee 178 148 or participant shall agree to preserve the confidentiality of any Confidential Information received by it from such Lender ~~in accordance with the terms of Section 8.09~~Party. (i) Notwithstanding any other provision set forth in this Agreement, any Lender Party may at any time create a security interest in all or any portion of its rights under this Agreement (~~including~~ including, without limitation, the ~~Term Loan~~ 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 System. (j) Notwithstanding anything to the contrary contained herein, any Lender that is a fund that invests in bank loans may create a security interest in all or any portion of the Term Loan Advances owing to it and the Note or Notes held by it to the trustee for holders of obligations owed, or securities issued, by such fund as security for such obligations or securities, provided, that unless and until such trustee actually becomes a Lender in compliance with the other provisions of this Section 8.07, (i) no such pledge shall release the pledging Lender from any of its obligations under the Loan Documents and (ii) such trustee shall not be entitled to exercise any of the rights of a Lender under the Loan Documents even though such trustee may have acquired ownership rights with respect to the pledged interest through foreclosure or otherwise. (k) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Lender”) may grant to a special purpose funding vehicle identified as such in writing from time to time by the Granting Lender to the Administrative Agent and BMCA (an “SPC”) the option to provide all or any part of any Term Loan Advance that such Granting Lender would otherwise be obligated to make pursuant to this Agreement, provided that (i) nothing herein shall constitute a commitment by any SPC to fund any Term Loan Advance, and (ii) if an SPC elects not to exercise such option or otherwise fails to make all or any part of such Term Loan Advance, the Granting Lender shall be obligated to make such Term Loan Advance pursuant to the terms hereof. The making of an Advance by an SPC hereunder shall utilize the Term Loan Commitment of the Granting Lender to the same extent, and as if, such Term Loan Advance were made by such Granting Lender. Each party hereto hereby agrees that (i) no SPC shall be liable for any indemnity or similar payment obligation under this Agreement for which a Lender would be liable, (ii) no SPC shall be entitled to the benefits of Sections 2.09 and 2.11 (or any other increased costs protection provision) and (iii) the Granting Bank shall for all purposes, including the approval of any amendment or waiver of any provision of any Loan Document, remain the Lender of record hereunder. In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior Debt of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency, or liquidation proceeding under the laws of the United States or any State thereof. Notwithstanding anything to the contrary contained in this Agreement, any SPC may (i) with notice to, but without prior consent of, BMCA and the Administrative Agent and with the payment of a processing fee of $500 and without paying any processing fee therefor, assign all or any portion of its interest in any Term Loan Advance to the Granting Lender and (ii) disclose on a confidential basis any non-public information relating to its funding of Term Loan Advance to any rating agency, commercial paper dealer or provider of any surety or guarantee or credit or liquidity enhancement to such SPC. This subsection (k) may not be amended without the prior written consent of each Granting Lender, all or any part of whose Term Loan Advances are being funded by the SPC at the time of such amendment.

Appears in 1 contract

Samples: Credit Agreement (Amf Group Inc)

Assignments and Participations. (a) Each Lender ~~may~~may and, so long as no Default shall have occurred and be continuing, if demanded by the Borrower pursuant to Section 9.14 upon at least five Business Days’ ' notice to such Lender and the Administrative Agent, will assign to one or more Eligible Assignees all or a portion of its rights and obligations under this Agreement (~~including~~ including, without limitation, all or a portion of its ~~Term Loan Commitment~~Commitment or Commitments, the ~~Term Loan~~ Advances owing to it and the Note or Notes held by it); provided, however, that (i) each such assignment shall be of a uniform, and not a varying, percentage of all rights and obligations under ~~this Agreement~~and in respect of all of the Facilities, (ii) except in the case of an assignment to a Person that, immediately prior to such assignment, was a Lender, an Affiliate of any Lender or an Approved Fund of any Lender or an assignment of all of a Lender’s 's rights and obligations under this Agreement, the aggregate amount of the ~~Term Loan~~ Commitments ~~or Term Loan Advances~~ being assigned to such Eligible Assignee pursuant to such assignment (determined as of the date of the Assignment and Acceptance with respect to such ~~assignment~~assignment and treating related Approved Funds as one assignee for this purpose) shall in no event be less than $1,000,000 in the case of any of the Term Facilities or $5,000,000 in the case of the Revolving Credit Facility (or or, in each case, such lesser amount as shall be approved by the Administrative ~~Agent and, so long as no Default shall have occurred and be continuing at the time of effectiveness of such assignment, BMCA~~Agent), (iii) each such assignment shall be to an Eligible Assignee, (iv) ~~except in the case of an assignment by a Person that, immediately prior to such assignment, was a Lender, to one of its Affiliates, no such assignments shall be permitted~~ without the consent of the ~~Administrative Agent and~~Borrower and CNAI, ~~so long as~~ no ~~Default shall have occurred and be continuing at~~ such assignments in respect of the time of effectiveness of such assignment, BMCA (in each case, which consents shall not be unreasonably withheld) and (v) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together with any Note or Notes subject to such assignment and a processing and recordation fee of $3,500. (b) Upon such execution, delivery, acceptance and recording, from and after the effective date specified in such Assignment and Acceptance, (i) the assignee thereunder Term A Facility shall be ~~a party hereto and, to~~ permitted until the ~~extent~~ expiration of 90 days following the Effective Date (except that ~~rights and obligations hereunder have been assigned to it pursuant to~~ no such Assignment and Acceptance, have the rights and obligations of a Lender hereunder and (ii) the Lender assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (other than its rights under Sections 2.09, 2.11 and 8.04 to the extent any claim thereunder relates to an event arising prior to such assignment) and be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all consent of the ~~remaining portion of an assigning Lender’s rights and obligations under this Agreement, such Lender~~ Borrower shall ~~cease to~~ be a party hereto). (c) By executing and delivering an Assignment and Acceptance, each Lender assignor thereunder and each assignee thereunder confirm to and agree with each other and the other parties thereto and hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or required in connection with ~~any Loan Document or~~ the execution, legality, validity, enforceability, genuineness, sufficiency or value of, or the perfection or priority of any lien or security interest created or purported to be created under or in connection with, any Loan Document or any other instrument or document furnished pursuant thereto; (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party or the performance or observance by any Loan Party of any of its obligations under any Loan Document or any other instrument or document furnished pursuant thereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies primary syndication of the financial statements referred to in Section 4.01 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) such assignee will, independently and without reliance upon any Agent, such assigning Lender or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) such assignee confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes each Agent to take such action as agent on its behalf and to exercise such powers and discretion under the Loan Documents as are delegated to such Agent by the terms hereof and thereof, together with such powers and discretion as are reasonably incidental thereto; and (vii) such assignee agrees that it will perform in accordance with their terms all of the obligations that by the terms of this Agreement are required to be performed by it as a Lender. (d) The Administrative Agent acting for this purpose (but only for this purpose) as the agent of the Borrowers, shall maintain at its address referred to in Section 8.02 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 Lenders and the Term Loan Commitment of, and principal amount of the Term Loan Advances to, each Lender from time to time (the “Register”Facilities). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrowers, the Agents and the Lenders shall treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrowers or any Agent or any Lender at any reasonable time and from time to time upon reasonable prior notice. (e) Notwithstanding anything to the contrary contained in clause (b) above, the Term Loan Advances (including the Notes evidencing such Term Loan Advances) are registered obligations and the right, title, and interest of the Lenders and their assignees in and to such Term Loan Advances shall be transferable only upon notation of such transfer in the Register. A Note shall only evidence the Lender’s or an assignee’s right title and interest in and to the related Term Loan Advance, and in no event is any such Note to be considered a bearer instrument or obligation. This Section 8.07 shall be construed so that the Term Loan Advances are at all times maintained in “registered form” within the meaning of sections 163(f), 871(h)(2) and 881(c)(2) of the Internal Revenue Code and any related regulations (or any successor provisions of the Internal Revenue Code or such regulations). Solely for purposes of this and for tax purposes only, the Administrative Agent shall act as each Borrower’s agent for purposes of maintaining such notations of transfer in the Register. (f) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee, together with any Note or Notes subject to such assignment, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit C hereto, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to BMCA and each other Agent. In the case of any assignment by a Lender, within five Business Days after its receipt of such notice, the Borrowers, at their own expense, shall, if requested by the assignee, execute and deliver to the Administrative Agent in exchange for the surrendered Note or Notes an amended and restated Note (which shall be marked “Amended and Restated”) to the order of such Eligible Assignee in an amount equal to the Term Loan Commitment assumed by it under each Facility pursuant to such Assignment and Acceptance and, if any assigning Lender has retained a Term Loan Commitment hereunder under such Facility and has requested a replacement Note, an amended and restated Note to the order of such assigning Lender in an amount equal to the Term Loan Commitment retained by it hereunder. Such amended and restated 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 Assignment and Acceptance and shall otherwise be in substantially the form of Exhibit A hereto. (g) Each Lender may sell participations to one or more Persons (other than any Loan Party or any of its Affiliates) in or to all or a portion of its rights and obligations under this Agreement (including all or a portion of its Term Loan Commitments, the Term Loan Advances owing to it and the Note or Notes (if any) held by it); provided, however, that (i) such Lender’s obligations under this Agreement (including its Term Loan Commitments) shall remain unchanged, (ii) 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, (iv) the Borrowers, the Agents and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and (v) no participant under any such participation shall have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent requires the consent of all Lenders. (h) Any Lender may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section 8.07, disclose to the assignee or participant or proposed assignee or participant any information relating to the Borrowers furnished to such Lender by or on behalf of the Borrowers; provided, however, 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 received by it from such Lender in accordance with the terms of Section 8.09. (i) Notwithstanding any other provision set forth in this Agreement, any Lender may at any time create a security interest in all or any portion of its rights under this Agreement (including the Term Loan 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 System. (j) Notwithstanding anything to the contrary contained herein, any Lender that is a fund that invests in bank loans may create a security interest in all or any portion of the Term Loan Advances owing to it and the Note or Notes held by it to the trustee for holders of obligations owed, or securities issued, by such fund as security for such obligations or securities, provided, that unless and until such trustee actually becomes a Lender in compliance with the other provisions of this Section 8.07, (i) no such pledge shall release the pledging Lender from any of its obligations under the Loan Documents and (ii) such trustee shall not be entitled to exercise any of the rights of a Lender under the Loan Documents even though such trustee may have acquired ownership rights with respect to the pledged interest through foreclosure or otherwise. (k) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Lender”) may grant to a special purpose funding vehicle identified as such in writing from time to time by the Granting Lender to the Administrative Agent and BMCA (an “SPC”) the option to provide all or any part of any Term Loan Advance that such Granting Lender would otherwise be obligated to make pursuant to this Agreement, provided that (i) nothing herein shall constitute a commitment by any SPC to fund any Term Loan Advance, and (ii) if an SPC elects not to exercise such option or otherwise fails to make all or any part of such Term Loan Advance, the Granting Lender shall be obligated to make such Term Loan Advance pursuant to the terms hereof. The making of an Advance by an SPC hereunder shall utilize the Term Loan Commitment of the Granting Lender to the same extent, and as if, such Term Loan Advance were made by such Granting Lender. Each party hereto hereby agrees that (i) no SPC shall be liable for any indemnity or similar payment obligation under this Agreement for which a Lender would be liable, (ii) no SPC shall be entitled to the benefits of Sections 2.09 and 2.11 (or any other increased costs protection provision) and (iii) the Granting Bank shall for all purposes, including the approval of any amendment or waiver of any provision of any Loan Document, remain the Lender of record hereunder. In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior Debt of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency, or liquidation proceeding under the laws of the United States or any State thereof. Notwithstanding anything to the contrary contained in this Agreement, any SPC may (i) with notice to, but without prior consent of, BMCA and the Administrative Agent and with the payment of a processing fee of $500 and without paying any processing fee therefor, assign all or any portion of its interest in any Term Loan Advance to the Granting Lender and (ii) disclose on a confidential basis any non-public information relating to its funding of Term Loan Advance to any rating agency, commercial paper dealer or provider of any surety or guarantee or credit or liquidity enhancement to such SPC. This subsection (k) may not be amended without the prior written consent of each Granting Lender, all or any part of whose Term Loan Advances are being funded by the SPC at the time of such amendment.

Appears in 1 contract

Samples: Credit Agreement (Td Ameritrade Holding Corp)

Assignments and Participations. (a) Each Lender ~~may, upon at least five Business Days’ notice to such Lender and the Administrative Agent,~~ may assign to one or more Eligible Assignees all or a portion of its rights and obligations under this Agreement (~~including~~ including, without limitation, all or a portion of its ~~Term Loan Commitment~~Commitment or Commitments, the ~~Term Loan~~ Advances owing to it and the Note or Notes held by it); provided, ~~however,~~ however that (i) each such assignment shall be of a uniform, and not a varying, percentage of all rights and obligations under ~~this Agreement~~and in respect of one or more of the Facilities, (ii) except in the case of an assignment to a Person that, immediately prior to such assignment, was a Lender, an Affiliate of any Lender or ~~an Approved~~ a Fund Affiliate of any Lender or an assignment of all of a Lender’s 's rights and obligations under this Agreement, the aggregate amount of the ~~Term Loan~~ Commitments ~~or Term Loan Advances~~ being assigned to such Eligible Assignee pursuant to such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $5,000,000 under each Facility or an integral multiple of $1,000,000 in excess thereof (or such lesser amount as shall be approved by the Administrative Agent and, so long as no Default shall have occurred and be continuing at the time of effectiveness of such assignment, ~~BMCA~~the Borrower), (iii) each such assignment shall be to an Eligible Assignee, (iv) except in the case of an assignment by to a Person that, immediately prior to such assignment, was a Lender, an Affiliate of any Lender or a Fund Affiliate of any Lender, in which case notice of such assignment shall be provided to ~~one of its Affiliates~~the Administrative Agent and the Borrower, no such assignments shall be permitted without the consent, which such consent shall not be unreasonably withheld, of (A) the Administrative Agent ~~and,~~ and (B) so long as no Default or Event of Default shall have occurred and be continuing at the time of the effectiveness of such assignment, ~~BMCA (in each case, which consents shall not be unreasonably withheld)~~ the Borrower and (v) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together with any Note or Notes subject to such assignment ~~and~~ and, except if such assignment is being made by a Lender to an Affiliate or Fund Affiliate of such Lender, a processing and recordation fee of $3,500. (b) Upon such execution, delivery, acceptance and recording, from and after the effective date specified in such 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, have the rights and obligations of a Lender or Issuing Bank, as the case may be, hereunder and (ii) the Lender or Issuing Bank assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (other than its rights under Sections ~~2.09~~2.10, ~~2.11~~ 2.12, 7.06, 8.05 and ~~8.04~~ 9.04 to the extent any claim thereunder relates to an event arising prior to such assignment) and be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all of the remaining portion of an assigning Lender’s 's or Issuing Bank's rights and obligations under this Agreement, such Lender or Issuing Bank shall cease to be a party hereto). (c) By executing and delivering an Assignment and Acceptance, each Lender Party assignor thereunder and each assignee thereunder confirm to and agree with each other and the other parties thereto and hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender Party makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with any Loan Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value of, or the perfection or priority of any lien or security interest created or purported to be created under or in connection with, any Loan Document or any other instrument or document furnished pursuant thereto; (ii) such assigning Lender Party makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party or the performance or observance by any Loan Party of any of its obligations under any Loan Document or any other instrument or document furnished pursuant thereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 4.01 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) such assignee will, independently and without reliance upon ~~any~~ the Administrative Agent, such assigning Lender Party or any other Lender Party and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) such assignee confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes ~~each~~ the Administrative Agent to take such action as agent on its behalf and to exercise such powers and discretion under the Loan Documents as are delegated to ~~such~~ the Administrative Agent by the terms hereof and thereof, together with such powers and discretion as are reasonably incidental thereto; and (vii) such assignee agrees that it will perform in accordance with their terms all of the obligations that by the terms of this Agreement are required to be performed by it as a ~~Lender~~Lender or Issuing Bank, as the case may be. (d) The Administrative Agent ~~acting for this purpose (but only for this purpose) as the agent of the Borrowers,~~ shall maintain at its address referred to in Section ~~8.02~~ 9.02 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 ~~Lenders~~ Lender Parties and the ~~Term Loan~~ Commitment under each Facility of, and principal amount of the ~~Term Loan~~ Advances owing under each Facility to, each Lender Party from time to time (the “"Register”"). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the ~~Borrowers~~Borrower, the ~~Agents~~ Administrative Agent and the ~~Lenders shall~~ Lender Parties may treat each Person whose name is recorded in the Register as a Lender Party hereunder for all purposes of this Agreement. The Register shall be available for inspection by the ~~Borrowers~~ Borrower or ~~any~~ the Administrative Agent or any Lender Party at any reasonable time and from time to time upon reasonable prior notice. (e) Notwithstanding anything to the contrary contained in clause (b) above, the Term Loan Advances (including the Notes evidencing such Term Loan Advances) are registered obligations and the right, title, and interest of the Lenders and their assignees in and to such Term Loan Advances shall be transferable only upon notation of such transfer in the Register. A Note shall only evidence the Lender’s or an assignee’s right title and interest in and to the related Term Loan Advance, and in no event is any such Note to be considered a bearer instrument or obligation. This Section 8.07 shall be construed so that the Term Loan Advances are at all times maintained in “registered form” within the meaning of sections 163(f), 871(h)(2) and 881(c)(2) of the Internal Revenue Code and any related regulations (or any successor provisions of the Internal Revenue Code or such regulations). Solely for purposes of this and for tax purposes only, the Administrative Agent shall act as each Borrower’s agent for purposes of maintaining such notations of transfer in the Register. (f) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender Party and an assignee, together with any Note or Notes subject to such assignment, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit C E hereto, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to ~~BMCA and each other Agent~~the Borrower. In the case of any assignment by a Lender, within five Business Days after its receipt of such notice, the ~~Borrowers~~Borrower, at ~~their~~ its own expense, shall, if requested by the ~~assignee~~applicable Lender, execute and deliver to the Administrative Agent in exchange for the surrendered Note or Notes ~~an amended and restated~~ a new Note ~~(which shall be marked “Amended and Restated”)~~ to the order of such Eligible Assignee in an amount equal to the ~~Term Loan~~ Commitment assumed by it under each Facility pursuant to such Assignment and Acceptance and, if any assigning Lender has retained a ~~Term Loan~~ Commitment hereunder under such ~~Facility and has requested~~ Facility, a ~~replacement Note, an amended and restated~~ new Note to the order of such assigning Lender in an amount equal to the ~~Term Loan~~ Commitment retained by it hereunder. Such ~~amended and restated~~ new Note or ~~Notes~~ Notes, if any, shall be in an aggregate principal amount equal to the aggregate principal amount of such surrendered Note or Notes, shall be dated the effective date of such Assignment and Acceptance and shall otherwise be in substantially the form of Exhibit A hereto. (f) Each Issuing Bank may assign to one or more Eligible Assignees all or a portion of its rights and obligations under the undrawn portion of its Letter of Credit Commitment at any time; provided, however that (i) except in the case of an assignment to a Person that immediately prior to such assignment was an Issuing Bank or an assignment of all of an Issuing Bank's rights and obligations under this Agreement, the amount of the Letter of Credit Commitment of the assigning Issuing Bank being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $5,000,000 and shall be in an integral multiple of $1,000,000 in excess thereof, (ii) each such assignment shall be to an Eligible Assignee and (iii) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together with a processing and recordation fee of $3,500, provided that such fee shall not be payable if the assigning Issuing Bank is making such assignment simultaneously with the assignment in its capacity as a Lender of all or a portion of its Revolving Credit Commitment to the same Eligible Assignee. (g) Each Lender Party may sell participations to one or more Persons (other than any Loan Party or any of its Affiliates) in or to all or a portion of its rights and obligations under this Agreement (~~including~~ including, without limitation, all or a portion of its ~~Term Loan~~ Commitments, the ~~Term Loan~~ Advances owing to it and the Note or Notes (if any) held by it); provided, ~~however,~~ however that (i) such ~~Lender’s~~ Lender Party's obligations under this Agreement (~~including~~ including, without limitation, its ~~Term Loan~~ Commitments) shall remain unchanged, (ii) such Lender Party shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) such Lender Party shall remain the holder of any such Note for all purposes of this Agreement, (iv) the ~~Borrowers~~Borrower, the ~~Agents~~ Administrative Agent and the other ~~Lenders~~ Lender Parties shall continue to deal solely and directly with such Lender Party in connection with such ~~Lender’s~~ Lender Party's rights and obligations under this ~~Agreement and~~ Agreement, (v) no participant under any such participation shall have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent ~~requires~~ would reduce the ~~consent~~ principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, or postpone any date fixed for any payment of ~~all Lenders~~principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, and (vi) if, at the time of such sale, such Lender Party was entitled to payments under Section 2.12(a) in respect of United States withholding tax with respect to interest paid at such date, then, to such extent, the term Taxes shall include (in addition to withholding taxes that may be imposed in the future or other amounts otherwise includable in Taxes) United States withholding tax, if any, applicable with respect to such participant on such date, provided that such participant complies with the requirements of Section 2.12(e). (h) Any Lender Party may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section ~~8.07~~9.07, disclose to the assignee or participant or proposed assignee or participant any information relating to the ~~Borrowers~~ Borrower furnished to such Lender Party by or on behalf of the ~~Borrowers~~Borrower; provided, ~~however,~~ however 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 received by it from such Lender ~~in accordance with the terms of Section 8.09~~Party. (i) Notwithstanding any other provision set forth in this Agreement, any Lender Party may at any time create a security interest in all or any portion of its rights under this Agreement (~~including~~ including, without limitation, the ~~Term Loan~~ 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 System. (j) Notwithstanding anything to the contrary contained herein, any Lender that is a fund that invests in bank loans may create a security interest in all or any portion of the Term Loan Advances owing to it and the Note or Notes held by it to the trustee for holders of obligations owed, or securities issued, by such fund as security for such obligations or securities, provided, that unless and until such trustee actually becomes a Lender in compliance with the other provisions of this Section 8.07, (i) no such pledge shall release the pledging Lender from any of its obligations under the Loan Documents and (ii) such trustee shall not be entitled to exercise any of the rights of a Lender under the Loan Documents even though such trustee may have acquired ownership rights with respect to the pledged interest through foreclosure or otherwise. (k) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Lender”) may grant to a special purpose funding vehicle identified as such in writing from time to time by the Granting Lender to the Administrative Agent and BMCA (an “SPC”) the option to provide all or any part of any Term Loan Advance that such Granting Lender would otherwise be obligated to make pursuant to this Agreement, provided that (i) nothing herein shall constitute a commitment by any SPC to fund any Term Loan Advance, and (ii) if an SPC elects not to exercise such option or otherwise fails to make all or any part of such Term Loan Advance, the Granting Lender shall be obligated to make such Term Loan Advance pursuant to the terms hereof. The making of an Advance by an SPC hereunder shall utilize the Term Loan Commitment of the Granting Lender to the same extent, and as if, such Term Loan Advance were made by such Granting Lender. Each party hereto hereby agrees that (i) no SPC shall be liable for any indemnity or similar payment obligation under this Agreement for which a Lender would be liable, (ii) no SPC shall be entitled to the benefits of Sections 2.09 and 2.11 (or any other increased costs protection provision) and (iii) the Granting Bank shall for all purposes, including the approval of any amendment or waiver of any provision of any Loan Document, remain the Lender of record hereunder. In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior Debt of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency, or liquidation proceeding under the laws of the United States or any State thereof. Notwithstanding anything to the contrary contained in this Agreement, any SPC may (i) with notice to, but without prior consent of, BMCA and the Administrative Agent and with the payment of a processing fee of $500 and without paying any processing fee therefor, assign all or any portion of its interest in any Term Loan Advance to the Granting Lender and (ii) disclose on a confidential basis any non-public information relating to its funding of Term Loan Advance to any rating agency, commercial paper dealer or provider of any surety or guarantee or credit or liquidity enhancement to such SPC. This subsection (k) may not be amended without the prior written consent of each Granting Lender, all or any part of whose Term Loan Advances are being funded by the SPC at the time of such amendment.

Appears in 1 contract

Samples: Credit Agreement (American Campus Communities Inc)

Assignments and Participations. (a) Each Lender ~~may~~may and, so long as no Default shall have occurred and be continuing, if demanded by the Company (following a demand by such Lender pursuant to Section 2.11 or 2.14) upon at least ~~five~~ 5 Business Days’ notice to such Lender and the ~~Administrative~~ Agent, will assign to one or more ~~Eligible Assignees~~ Persons all or a portion of its rights and obligations under this Agreement (~~including~~ including, without limitation, all or a portion of its ~~Term Loan~~ Commitment, its Unissued Letter of Credit Commitment, the ~~Term Loan~~ Advances owing to it it, its participations in Letters of Credit and ~~the~~ any Note or Notes held by it); provided, however, that (i) each such assignment shall be of a ~~uniform~~constant, and not a varying, percentage of all rights and obligations under this ~~Agreement~~Agreement related to the Commitments or the Unissued Letter of Credit Commitment assigned thereby, (ii) except in the case of an assignment to a Person that, immediately prior to such assignment, was a ~~Lender, an Affiliate of any Lender or an Approved Fund of any~~ Lender or an assignment of all of a Lender’s rights and obligations under this Agreement, the ~~aggregate~~ amount of (x) the ~~Term Loan Commitments or Term Loan Advances~~ Commitment of the assigning Lender being assigned ~~to such Eligible Assignee~~ pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $~~5,000,000~~ 10,000,000 or an integral multiple of $1,000,000 in excess thereof and (or y) the Unissued Letter of Credit Commitment of the assigning Lender being assigned pursuant to each such ~~lesser amount~~ assignment (determined as ~~shall be approved by~~ of the ~~Administrative Agent and, so long as no Default shall have occurred~~ date of the Assignment and ~~be continuing at the time of effectiveness of~~ Acceptance with respect to such assignment) shall in no event be less than $10,000,000 or an integral multiple of $1,000,000 in excess thereof unless, ~~BMCA)~~in each case, the Company and the Agent otherwise agree, (iii) each such assignment shall be to an Eligible Assignee, (iv) ~~except in~~ each such assignment made as a result of a demand by the ~~case of~~ Company pursuant to this Section 9.07(a) shall be arranged by the Company after consultation with the Agent and shall be either an assignment of all of the rights and obligations of the assigning Lender under this Agreement or an assignment of a portion of such rights and obligations made concurrently with another such assignment or other such assignments that together cover all of the rights and obligations of the assigning Lender under this Agreement, (v) no Lender shall be obligated to make any such assignment as a result of a demand by ~~a Person that, immediately prior~~ the Company pursuant to this Section 9.07(a) unless and until such Lender shall have received one or more payments from either the Company or one or more Eligible Assignees in an aggregate amount at least equal to the aggregate outstanding principal amount of the Advances owing to such ~~assignment, was a~~ Lender, together with accrued interest thereon to ~~one~~ the date of ~~its Affiliates, no such assignments shall be permitted without the consent of the Administrative Agent and, so long as no Default shall have occurred and be continuing at the time of effectiveness~~ payment of such ~~assignment~~principal amount and all other amounts payable to such Lender under this Agreement, ~~BMCA (in each case, which consents shall not be unreasonably withheld)~~ and (vvi) the parties to each such assignment shall execute and deliver to the ~~Administrative~~ Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together with any Note ~~or Notes~~ subject to such assignment and a processing and recordation fee of $~~3,500.~~ 3,500 payable by the parties to each such assignment, provided, however, that in the case of each assignment made as a result of a demand by the Company, such recordation fee shall be payable by the Company except that no such recordation fee shall be payable in the case of an assignment made at the request of the Company to an Eligible Assignee that is an existing Lender, and (bvii) any Lender may, without the approval of the Company or the Agent, assign all or a portion of its rights to any of its Affiliates or to another Lender unless on the date of such assignment the assignee would be entitled to make a demand pursuant to Section 2.11 or 2.14, in which case such assignment shall be permitted only if the assignee shall waive in a manner satisfactory to the Company in form and substance its rights to make such a demand. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in ~~such~~ each Assignment and Acceptance, (ix) the assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, have the rights and obligations of a Lender hereunder and (iiy) the Lender assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (other than its rights under Sections ~~2.09~~2.11, ~~2.11~~ 2.14 and ~~8.04~~ 9.04 to the extent any claim thereunder relates to an event arising prior such assignment) and be released from its obligations (other than its obligations under Section 9.04(e) to the extent any claim thereunder relates to an event arising prior to such assignment) ~~and be released from its obligations~~ under this Agreement (and, in the case of an Assignment and Acceptance covering all of or the remaining portion of an assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto). (cb) By executing and delivering an Assignment and Acceptance, ~~each~~ the Lender assignor thereunder and ~~each~~ the assignee thereunder confirm to and agree with each other and the other parties ~~thereto and~~ hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with ~~any Loan Document~~ this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of, or the perfection or priority of any lien or security interest created or purported to be created under or in connection with, ~~any Loan Document~~ this Agreement or any other instrument or document furnished pursuant ~~thereto~~hereto; (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of the Company or any ~~Loan Party~~ other Borrower or the performance or observance by the Company or any ~~Loan Party~~ other Borrower of any of its obligations under ~~any Loan Document~~ this Agreement or any other instrument or document furnished pursuant ~~thereto~~hereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 4.01 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) such assignee will, independently and without reliance upon ~~any~~ the Agent, such assigning Lender or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) such assignee confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes ~~each~~ the Agent to take such action as agent on its behalf and to exercise such powers and discretion under ~~the Loan Documents~~ this Agreement as are delegated to ~~such~~ the Agent by the terms ~~hereof and thereof~~hereof, together with such powers and discretion as are reasonably incidental thereto; and (vii) such assignee agrees that it will perform in accordance with their terms all of the obligations that by the terms of this Agreement are required to be performed by it as a Lender. (d) The Administrative Agent acting for this purpose (but only for this purpose) as the agent of the Borrowers, shall maintain at its address referred to in Section 8.02 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 Lenders and the Term Loan Commitment of, and principal amount of the Term Loan Advances 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 Borrowers, the Agents and the Lenders shall treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrowers or any Agent or any Lender at any reasonable time and from time to time upon reasonable prior notice. (e) Notwithstanding anything to the contrary contained in clause (b) above, the Term Loan Advances (including the Notes evidencing such Term Loan Advances) are registered obligations and the right, title, and interest of the Lenders and their assignees in and to such Term Loan Advances shall be transferable only upon notation of such transfer in the Register. A Note shall only evidence the Lender’s or an assignee’s right title and interest in and to the related Term Loan Advance, and in no event is any such Note to be considered a bearer instrument or obligation. This Section 8.07 shall be construed so that the Term Loan Advances are at all times maintained in “registered form” within the meaning of sections 163(f), 871(h)(2) and 881(c)(2) of the Internal Revenue Code and any related regulations (or any successor provisions of the Internal Revenue Code or such regulations). Solely for purposes of this and for tax purposes only, the Administrative Agent shall act as each Borrower’s agent for purposes of maintaining such notations of transfer in the Register. (fc) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an ~~assignee~~assignee representing that it is an Eligible Assignee, together with any Note or Notes subject to such assignment, the ~~Administrative~~ Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit C hereto, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to ~~BMCA~~ the Company. (d) The Agent shall maintain at its address referred to in Section 9.02 a copy of each Assumption Agreement and each other Agent. In the case of any assignment by a Lender, within five Business Days after its receipt of such notice, the Borrowers, at their own expense, shall, if requested by the assignee, execute and deliver to the Administrative Agent in exchange for the surrendered Note or Notes an amended and restated Note (which shall be marked “Amended and Restated”) to the order of such Eligible Assignee in an amount equal to the Term Loan Commitment assumed by it under each Facility pursuant to such Assignment and Acceptance ~~and, if any assigning Lender has retained a Term Loan Commitment hereunder under such Facility~~ delivered to and ~~has requested a replacement Note, an amended and restated Note to the order of such assigning Lender in an amount equal to the Term Loan Commitment retained~~ accepted by it ~~hereunder. Such amended~~ and ~~restated Note or Notes shall be in an aggregate principal amount equal to~~ a register for the ~~aggregate~~ recordation of the names and addresses of the Lenders and each Commitment of, and principal amount of ~~such surrendered Note or Notes~~the Advances owing to, each Lender from time to time (the “Register”). The entries in the Register shall be ~~dated~~ conclusive and binding for all purposes, absent manifest error, and the ~~effective date~~ Company, the Agent and the Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of ~~such Assignment~~ this Agreement. The Register shall be available for inspection by the Company or any Lender at any reasonable time and ~~Acceptance and shall otherwise be in substantially the form of Exhibit A hereto~~from time to time upon reasonable prior notice. (ge) Each Lender may sell participations to one or more ~~Persons~~ banks or other entities (other than ~~any Loan Party~~ the Company or any of its Affiliates) in or to all or a portion of its rights and obligations under this Agreement (~~including~~ including, without limitation, all or a portion of its ~~Term Loan Commitments~~Revolving Credit Commitment, the ~~Term Loan~~ Advances owing to it and ~~the~~ any Note or Notes ~~(if any)~~ held by it); provided, however, that (i) such Lender’s obligations under this Agreement (~~including~~ including, without limitation, its ~~Term Loan Commitments~~Revolving Credit Commitment to the Borrowers hereunder) shall remain unchanged, (ii) 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, (iv) the Company, the other Borrowers, the ~~Agents~~ Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and (v) no participant under any such participation shall have any rights as a Lender hereunder, including, without limitation, any right to make any demand under Section 2.11 or 2.14 or right to approve any amendment or waiver of any provision of this Agreement or any ~~Loan Document~~Note, or any consent to any departure by the Company or any ~~Loan Party~~ other Borrower therefrom, except to the extent that such amendment, waiver or consent ~~requires~~ would reduce the ~~consent~~ principal of, or interest on, any Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, or postpone any date fixed for any payment of ~~all Lenders~~principal of, or interest on, any Notes or any fees or other amounts payable hereunder or reduce or limit the obligations of the Company under Section 7.01 or release or otherwise limit the Company’s liability with respect to its obligations under Article VII or amend this Section 9.07(e) in any manner adverse to such participant, in each case to the extent subject to such participation. (hf) Any Lender may, in connection with any ~~assignment or~~ assignment, participation or grant of funding option or proposed ~~assignment~~ assignment, participation or ~~participation~~ grant of funding option pursuant to this Section ~~8.07~~9.07, disclose to the assignee or participant or proposed assignee or ~~participant~~ participant, any information relating to ~~the Borrowers~~ any Borrower furnished to such Lender by or on behalf of ~~the Borrowers~~such Borrower; ~~provided, however,~~ 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 any Borrower received by it from such ~~Lender in accordance with the terms of Section 8.09~~Lender. (ig) Notwithstanding any other provision set forth in this Agreement, any Lender may at any time create a security interest in all or any portion of its rights under this Agreement (~~including~~ including, without limitation, the ~~Term Loan~~ Advances owing to it and ~~the~~ any 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 System. (j) Notwithstanding anything to the contrary contained herein, any Lender that is a fund that invests in bank loans may create a security interest in all or any portion of the Term Loan Advances owing to it and the Note or Notes held by it to the trustee for holders of obligations owed, or securities issued, by such fund as security for such obligations or securities, provided, that unless and until such trustee actually becomes a Lender in compliance with the other provisions of this Section 8.07, (i) no such pledge shall release the pledging Lender from any of its obligations under the Loan Documents and (ii) such trustee shall not be entitled to exercise any of the rights of a Lender under the Loan Documents even though such trustee may have acquired ownership rights with respect to the pledged interest through foreclosure or otherwise. (k) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Lender”) may grant to a special purpose funding vehicle identified as such in writing from time to time by the Granting Lender to the Administrative Agent and BMCA (an “SPC”) the option to provide all or any part of any Term Loan Advance that such Granting Lender would otherwise be obligated to make pursuant to this Agreement, provided that (i) nothing herein shall constitute a commitment by any SPC to fund any Term Loan Advance, and (ii) if an SPC elects not to exercise such option or otherwise fails to make all or any part of such Term Loan Advance, the Granting Lender shall be obligated to make such Term Loan Advance pursuant to the terms hereof. The making of an Advance by an SPC hereunder shall utilize the Term Loan Commitment of the Granting Lender to the same extent, and as if, such Term Loan Advance were made by such Granting Lender. Each party hereto hereby agrees that (i) no SPC shall be liable for any indemnity or similar payment obligation under this Agreement for which a Lender would be liable, (ii) no SPC shall be entitled to the benefits of Sections 2.09 and 2.11 (or any other increased costs protection provision) and (iii) the Granting Bank shall for all purposes, including the approval of any amendment or waiver of any provision of any Loan Document, remain the Lender of record hereunder. In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior Debt of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency, or liquidation proceeding under the laws of the United States or any State thereof. Notwithstanding anything to the contrary contained in this Agreement, any SPC may (i) with notice to, but without prior consent of, BMCA and the Administrative Agent and with the payment of a processing fee of $500 and without paying any processing fee therefor, assign all or any portion of its interest in any Term Loan Advance to the Granting Lender and (ii) disclose on a confidential basis any non-public information relating to its funding of Term Loan Advance to any rating agency, commercial paper dealer or provider of any surety or guarantee or credit or liquidity enhancement to such SPC. This subsection (k) may not be amended without the prior written consent of each Granting Lender, all or any part of whose Term Loan Advances are being funded by the SPC at the time of such amendment.

Appears in 1 contract

Samples: Credit Agreement (Interpublic Group of Companies, Inc.)

Assignments and Participations. (a) Each Lender ~~may, upon at least five Business Days’ notice to such Lender and the Administrative Agent,~~ may assign to one or more ~~Eligible Assignees~~ banks or other entities all or a portion of its rights and obligations under this Agreement (~~including~~ including, without limitation, all or a portion of its ~~Term Loan Commitment~~Commitments, the ~~Term Loan~~ Advances owing to it and the Note or Notes held by it); ~~provided, however, that~~ provided that: (i~~) each such assignment shall be of a uniform, and not a varying, percentage of all rights and obligations under this Agreement, (ii~~) except in the case of an assignment to a Person that, immediately prior to such assignment, was a ~~Lender, an Affiliate of any~~ Lender or an ~~Approved Fund~~ affiliate of ~~any~~ a Lender or an assignment of all of a Lender’s 's rights and obligations under this Agreement, the ~~aggregate~~ amount of the ~~Term Loan~~ Commitments ~~or Term Loan Advances~~ of the assigning Lender being assigned ~~to such Eligible Assignee~~ pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than the lesser of (x) such Lender's Commitments hereunder and (y) $5,000,000 or an integral multiple of $1,000,000 in excess thereof (except as otherwise agreed by the relevant Borrower and the Administrative Agent), (ii) except in the case of an assignment to a Person that, immediately prior to such assignment, was a Lender or an affiliate of a Lender, each such ~~lesser amount as~~ assignment shall be ~~approved by~~ made only upon the prior written approval of the relevant Borrower, the Administrative Agent ~~and~~and each Issuing Bank, ~~so long as no Default shall have occurred and~~ such approval not to be ~~continuing at the time of effectiveness of such assignment, BMCA),~~ unreasonably withheld, (iii) each such assignment shall be to an Eligible Assignee, , (iv) ~~except in the case of an~~ each such assignment by a ~~Person that, immediately prior to such assignment, was a Lender, to one~~ Lender of its ~~Affiliates~~Advances, ~~no such assignments~~ Commitment or Note under any Facility shall be ~~permitted without~~ made in such manner so that the ~~consent~~ same portion of its Advances, Commitment and Note under such Facility is assigned to the Administrative Agent and, so long as no Default shall have occurred and be continuing at the time of effectiveness of such assignment, BMCA (in each case, which consents shall not be unreasonably withheld) and respective assignee, (v) each such assignment by a Lender of its Advances, Commitments and Notes shall be made in such a manner so that the same portion of its Terra Advances, TNLP Advances, Terra Commitment, TNLP Commitment, Terra Note and TNLP Note is assigned to the respective assignee, and (vi) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together with any Note or Notes subject to such assignment and a processing and recordation fee of $~~3,500. (b)~~ 3,000. -117- Upon such execution, delivery, acceptance and recording, from and after the effective date specified in such Assignment and Acceptance, (ix) the assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, have the rights and obligations of a Lender hereunder and (iiy) the Lender assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights ~~(other than its rights under Sections 2.09, 2.11 and 8.04 to the extent any claim thereunder relates to an event arising prior to such assignment)~~ and be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all of or the remaining portion of an assigning Lender’s 's rights and obligations under this Agreement, such Lender shall cease to be a party hereto). (cb) By executing and delivering an Assignment and Acceptance, ~~each~~ the Lender assignor thereunder and ~~each~~ the assignee thereunder confirm to and agree with each other and the other parties ~~thereto and~~ hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with ~~any Loan Document~~ this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value ~~of, or the perfection or priority~~ of ~~any lien or security interest created or purported to be created under or in connection with, any Loan Document~~ this Agreement or any other instrument or document furnished pursuant ~~thereto~~hereto; (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any ~~Loan Party~~ Obligor or the performance or observance by ~~any Loan Party~~ the Obligors of any of ~~its~~ their respective obligations under ~~any Loan Document~~ this Agreement or any other instrument or document furnished pursuant ~~thereto~~hereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 4.01 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) such assignee will, independently and without reliance upon ~~any~~ the Administrative Agent, such assigning Lender or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) such assignee confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes ~~each~~ the Administrative Agent to take such action as agent on its behalf and to exercise such powers and discretion under ~~the Loan Documents~~ this Agreement as are delegated to ~~such~~ the Administrative Agent by the terms ~~hereof and thereof~~hereof, together with such powers and discretion as are reasonably incidental thereto; and (vii) such assignee agrees that it will perform in accordance with their terms all of the obligations that by the terms of this Agreement are required to be performed by it as a Lender. (dc) The Administrative ~~Agent~~ Agent, acting for this purpose ~~(but only for this purpose)~~ as ~~the~~ an agent of the Borrowers, shall maintain at its address referred to in Section ~~8.02~~ 9.02 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 Lenders and the ~~Term Loan Commitment~~ Commitments of, and principal amount of the ~~Term Loan~~ Advances owing under each Facility 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 Borrowers, the ~~Agents~~ Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. No assignment shall be effective until it is recorded in the Register pursuant to this Section 9.07(c). The Register shall be available for inspection by the Borrowers ~~or any Agent~~ or any Lender at any reasonable time and from time to time upon reasonable prior notice. (e) Notwithstanding anything to the contrary contained in clause (b) above, the Term Loan Advances (including the Notes evidencing such Term Loan Advances) are registered obligations and the right, title, and interest of the Lenders and their assignees in and to such Term Loan Advances shall be transferable only upon notation of such transfer in the Register. A Note shall only evidence the Lender’s or an assignee’s right title and interest in and to the related Term Loan Advance, and in no event is any such Note to be considered a bearer instrument or obligation. This Section 8.07 shall be construed so that the Term Loan Advances are at all times maintained in “registered form” within the meaning of sections 163(f), 871(h)(2) and 881(c)(2) of the Internal Revenue Code and any related regulations (or any successor provisions of the Internal Revenue Code or such regulations). Solely for purposes of this and for tax purposes only, the Administrative Agent shall act as each Borrower’s agent for purposes of maintaining such notations of transfer in the Register. (fd) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee, together with any Note or Notes subject to such assignment, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit C F hereto, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to ~~BMCA and each other Agent~~the Borrowers. ~~In the case of any assignment by a Lender, within~~ Within five Business Days after its receipt of such notice, the ~~Borrowers~~relevant Borrower, at ~~their~~ its own expense, ~~shall, if requested by the assignee,~~ shall execute and deliver to the Administrative Agent in exchange for the surrendered Note or Notes ~~an amended and restated~~ a new Note ~~(which shall be marked “Amended and Restated”)~~ or Notes to the order of such ~~Eligible Assignee~~ assignee in an amount equal to the ~~Term Loan Commitment~~ portion of the Facilities assumed by it ~~under each Facility~~ pursuant to such Assignment and Acceptance and, if ~~any~~ the assigning Lender has retained a ~~Term Loan Commitment hereunder under~~ portion of such ~~Facility and has requested~~ Facilities, a ~~replacement Note, an amended and restated~~ new Note or Notes to the order of ~~such~~ the assigning Lender in an amount equal to the ~~Term Loan Commitment~~ portion so retained by it hereunder. Such ~~amended and restated~~ 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 Assignment and Acceptance and shall otherwise be in substantially the form of Exhibit ~~A hereto~~A-1 and A-2, as the case may be. (ge) Each Lender may sell participations ~~to one or more Persons (other than any Loan Party or any of its Affiliates)~~ in or to all or a portion of its rights ~~and~~ and/or obligations under this Agreement (~~including~~ including, without limitation, all or a portion of its ~~Term Loan Commitments,~~ Commitments or the ~~Term Loan~~ Advances owing to it and the Note or Notes ~~(if any)~~ held by it); ~~provided, however,~~ provided that (i) such Lender’s 's obligations under this Agreement (~~including~~ including, without limitation, its ~~Term Loan~~ Commitments) shall remain unchanged, (ii) 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, (iv) the ~~Borrowers~~Obligors, the ~~Agents~~ Administrative Agent, the Issuing Banks and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s 's rights and obligations under this Agreement and (v) no participant under any such participation shall have any right to approve any amendment or waiver of any provision of any ~~Loan~~ Basic Document, or any consent to any departure by any ~~Loan Party~~ Obligor therefrom, except to the extent that such amendment, waiver or consent ~~requires~~ would reduce the ~~consent~~ principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, postpone any date fixed for any payment of principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, or release all ~~Lenders~~or substantially all of the Collateral. (hf) Any Issuing Bank may (subject to the prior written consent of Terra, such consent not to be unreasonably withheld) assign all or any portion of its rights and obligations under this Agreement to one or more successor Issuing Banks that is a commercial bank organized under the laws of the United States, or any state thereof, and having total assets in excess of $1,000,000,000 and, upon the acceptance of such assignment, the respective successor Issuing Banks shall succeed to such portion of such rights and obligations and such assigning Issuing Bank shall be discharged from its duties and obligations under this Agreement to such extent, including, without limitation, such portion of its Letter of Credit Commitment. (g) Any Issuing Bank and any Lender may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section ~~8.07~~9.07, disclose to the assignee or participant or proposed assignee or ~~participant~~ participant, any information relating to the ~~Borrowers~~ Borrower furnished to such Lender by or on behalf of the ~~Borrowers~~Borrower; ~~provided, however,~~ provided that, prior to any such disclosure, the assignee or participant or proposed assignee or participant shall agree in writing to preserve the confidentiality of any Confidential Information received by it from such ~~Lender in accordance with the terms of Section 8.09~~Issuing Bank or Lender. (ih) Notwithstanding any other provision set forth in this Agreement, any Lender may at any time create a security interest in all or any portion of its rights under this Agreement (~~including~~ including, without limitation, the ~~Term Loan~~ 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 System. (ji) ~~Notwithstanding anything~~ Anything in this Section 9.07 to the contrary ~~contained herein~~notwithstanding, ~~any~~ each Lender ~~that is a fund that invests in bank loans may create a security interest in~~ shall be permitted to pledge all or any ~~portion~~ part of its right, title and interest in, to and under the ~~Term Loan~~ Advances ~~owing to it~~ and ~~the Note or~~ Notes held by it to ~~the~~ any trustee for the benefit of the holders of ~~obligations owed, or securities issued, by~~ such ~~fund as security for such obligations or~~ Lender's securities~~, provided, that unless and until such trustee actually becomes a Lender~~ . (j) Anything in ~~compliance with the other provisions of~~ this Section ~~8.07~~9.07 to the contrary notwithstanding, ~~(i) no such pledge shall release the pledging Lender from~~ neither Terra nor any of its ~~obligations under the Loan Documents~~ Subsidiaries or Affiliates may acquire (whether by assignment, participation or otherwise), and ~~(ii) such trustee~~ no Lender or Issuing Bank shall ~~not be entitled~~ assign or participate to ~~exercise~~ Terra or any of ~~the rights of a Lender under the Loan Documents even though such trustee may have acquired ownership rights with respect to the pledged interest through foreclosure~~ its Subsidiaries or ~~otherwise. (k) Notwithstanding anything to the contrary contained herein~~Affiliates, any ~~Lender (a “Granting~~ interest in any Commitment, Advance or other amount owing hereunder without the prior consent of each Lender”) may grant to a special purpose funding vehicle identified as such in writing from time to time by the Granting Lender to the Administrative Agent and BMCA (an “SPC”) the option to provide all or any part of any Term Loan Advance that such Granting Lender would otherwise be obligated to make pursuant to this Agreement, ; provided that ~~(i) nothing herein shall constitute a commitment by any SPC to fund any Term Loan Advance~~the Lenders and the Issuing Banks may assign all of their interests in the Commitments, Advances and ~~(ii) if an SPC elects not to exercise~~ such ~~option or otherwise fails to make all or any part of such Term Loan Advance, the Granting Lender shall be obligated to make such Term Loan Advance~~ other amounts pursuant to the ~~terms hereof. The making of an Advance by an SPC hereunder shall utilize the Term~~ Loan Commitment of the Granting Lender to the same extent, and as if, such Term Loan Advance were made by such Granting Lender. Each party hereto hereby agrees that (i) no SPC shall be liable for any indemnity or similar payment obligation under this Agreement for which a Lender would be liable, (ii) no SPC shall be entitled to the benefits of Sections 2.09 and 2.11 (or any other increased costs protection provision) and (iii) the Granting Bank shall for all purposes, including the approval of any amendment or waiver of any provision of any Loan Document, remain the Lender of record hereunder. In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Purchase Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior Debt of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency, or liquidation proceeding under the laws of the United States or any State thereof. Notwithstanding anything to the contrary contained in this Agreement, any SPC may (i) with notice to, but without prior consent of, BMCA and the Administrative Agent and with the payment of a processing fee of $500 and without paying any processing fee therefor, assign all or any portion of its interest in any Term Loan Advance to the Granting Lender and (ii) disclose on a confidential basis any non-public information relating to its funding of Term Loan Advance to any rating agency, commercial paper dealer or provider of any surety or guarantee or credit or liquidity enhancement to such SPC. This subsection (k) may not be amended without the prior written consent of each Granting Lender, all or any part of whose Term Loan Advances are being funded by the SPC at the time of such amendment.

Appears in 1 contract

Samples: Credit Agreement (Terra Industries Inc)

Assignments and Participations. (a) Each Lender ~~may~~may assign (i) without the approval of the Borrower, ~~upon at least five Business Days’ notice to such Lender and the Administrative Agent, assign~~ to one or more Eligible Assignees if the Eligible Assignee is a Lender or is an Affiliate of the assigning Lender which satisfies the credit rating requirements of the second proviso of the definition of "Eligible Assignee", (ii) without the approval of the Borrower, to one or more Persons (which need not be Eligible Assignees) after the occurrence and during the continuation of an Event of Default, provided, however, that if such Person is not an Eligible Assignee the approval of each Issuing Bank shall have been obtained, such approval not to be unreasonably withheld or delayed, (iii) with the approval of the Borrower, such approval not to be unreasonably withheld or delayed, to any Eligible Assignee in any case not contemplated by the preceding clause (i) or (ii) and (iv) with the approval of the Borrower, each Issuing Bank and the Agent, to one or more Persons in any case not contemplated by the preceding clause (i), (ii) or (iii), all or a portion of its rights and obligations under this Agreement (~~including~~ including, without limitation, all or a portion of its ~~Term Loan~~ Revolving Credit Commitment, the ~~Term Loan~~ Revolving Credit Advances owing to it and the Revolving Credit Note or Notes held by it); provided, however, that (i) each such assignment shall be of a ~~uniform~~constant, and not a varying, percentage of all rights and obligations under this Agreement, (ii) except in the case of an assignment to a Person that, immediately prior to such assignment, was a ~~Lender, an Affiliate of any Lender or an Approved Fund of any~~ Lender or an assignment of all of a Lender’s 's rights and obligations under this Agreement, the ~~aggregate~~ amount of the ~~Term Loan Commitments or Term Loan Advances~~ Revolving Credit Commitment of the assigning Lender being assigned ~~to such Eligible Assignee~~ pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall ~~in no event~~ be ~~less than~~ $~~5,000,000 (~~10,000,000 or ~~such lesser amount as shall be approved by the Administrative Agent and, so long as no Default shall have occurred and be continuing at the time~~ a larger integral multiple of ~~effectiveness of such assignment, BMCA)~~$1,000,000, (iii) each such assignment shall be to an Eligible Assignee, (iv) except in the case of an assignment by a Person that, immediately prior to such assignment, was a Lender, to one of its Affiliates, no such assignments shall be permitted without the consent of the Administrative Agent and, so long as no Default shall have occurred and be continuing at the time of effectiveness of such assignment, BMCA (in each case, which consents shall not be unreasonably withheld) and (v) the parties to each such assignment shall execute and deliver to the ~~Administrative~~ Agent, for its acceptance and recording in the Register, and, if the relevant Eligible Assignee is not listed in clause (i) of the definition of "Eligible Assignee", to the Borrower for its acceptance, an appropriate Assignment and Acceptance, together with any Revolving Credit Note ~~or Notes~~ subject to such assignment and a processing and recordation fee of $~~3,500.~~ 3,500 unless the relevant Eligible Assignee is an Affiliate of the assigning Lender and (biv) notwithstanding the foregoing, Competitive Bid Advances may be assigned as contemplated by the related Notice of Competitive Bid Borrowing. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in ~~such~~ each Assignment and Acceptance, (ix) the assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, have the rights and obligations of a Lender hereunder and (iiy) the Lender assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights ~~(other than its rights under Sections 2.09, 2.11 and 8.04 to the extent any claim thereunder relates to an event arising prior to such assignment)~~ and be released from its obligations under this Agreement (other than under Sections 2.14(f), 8.07(g) and 8.08) (and, in the case of an Assignment and Acceptance covering all of or the remaining portion of an assigning Lender’s 's rights and obligations under this Agreement, such Lender shall cease to be a party hereto). (b) If any Lender (i) shall make a demand under Section 8.04(d) for payment in respect of a claim under Section 2.11 or shall give a notice under Section 2.12 of any unlawfulness or assertion of unlawfulness contemplated by such Section or any demand shall be made or any amount shall be payable with respect to any Lender under Section 2.14 or (ii) is a Non-Consenting Lender, the Borrower may, by written notice given to such Lender within 45 days of the making by such Lender of such demand, the giving by such Lender of such notice or such Lender becoming a Non-Consenting Lender, require by written notice to such Lender that such Lender assign, by executing and delivering an Acceptance and Assignment, within 15 days of the giving by the Borrower of such notice but on at least three Business Days' notice to one or more Persons in accordance with Section 8.07(a) such Lender's Revolving Credit Commitment and its Advances against payment to such Lender in immediately available funds of the principal amount of such Advances, all interest accrued thereon to the date of payment, all fees accrued by such Lender to the date of payment, any amounts payable to such Lender under Section 8.04(c) and all other amounts payable hereunder to such Lender. (c) By executing and delivering an Assignment and Acceptance, ~~each~~ the Lender assignor thereunder and ~~each~~ the assignee thereunder confirm to and agree with each other and the other parties ~~thereto and~~ hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with ~~any Loan Document~~ this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value ~~of, or the perfection or priority~~ of ~~any lien or security interest created or purported to be created under or in connection with, any Loan Document~~ this Agreement or any other instrument or document furnished pursuant ~~thereto~~hereto; (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of ~~any Loan Party~~ the Borrower or the performance or observance by ~~any Loan Party~~ the Borrower of any of its obligations under ~~any Loan Document~~ this Agreement or any other instrument or document furnished pursuant ~~thereto~~hereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 4.01 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) such assignee will, independently and without reliance upon ~~any~~ the Agent, such assigning Lender or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) such assignee confirms that it is an Eligible ~~Assignee~~Assignee or that it is an entity that has been approved by the Borrower and the Agent under Section 8.07(a); (vi) such assignee appoints and authorizes ~~each~~ the Agent to take such action as agent on its behalf and to exercise such powers and discretion under ~~the Loan Documents~~ this Agreement as are delegated to ~~such~~ the Agent by the terms ~~hereof and thereof~~hereof, together with such powers and discretion as are reasonably incidental thereto; and (vii) such assignee agrees that it will perform in accordance with their terms all of the obligations that by the terms of this Agreement are required to be performed by it as a Lender. (d) The ~~Administrative~~ Agent ~~acting for this purpose (but only for this purpose) as the agent of the Borrowers,~~ shall maintain at its address referred to in Section 8.02 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 Lenders and the ~~Term Loan~~ Revolving Credit Commitment of, and principal amount of the ~~Term Loan~~ 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 ~~Borrowers~~Borrower, the ~~Agents~~ Agent and the Lenders ~~shall~~ 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 Agent~~ Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice. (e) Notwithstanding anything to the contrary contained in clause (b) above, the Term Loan Advances (including the Notes evidencing such Term Loan Advances) are registered obligations and the right, title, and interest of the Lenders and their assignees in and to such Term Loan Advances shall be transferable only upon notation of such transfer in the Register. A Note shall only evidence the Lender’s or an assignee’s right title and interest in and to the related Term Loan Advance, and in no event is any such Note to be considered a bearer instrument or obligation. This Section 8.07 shall be construed so that the Term Loan Advances are at all times maintained in “registered form” within the meaning of sections 163(f), 871(h)(2) and 881(c)(2) of the Internal Revenue Code and any related regulations (or any successor provisions of the Internal Revenue Code or such regulations). Solely for purposes of this and for tax purposes only, the Administrative Agent shall act as each Borrower’s agent for purposes of maintaining such notations of transfer in the Register. (f) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an ~~assignee~~assignee representing that it is an Eligible Assignee or that it is an entity that has been approved by the Borrower and the Agent under Section 8.07(a), together with any Revolving Credit Note or Notes subject to such assignment, the ~~Administrative~~ Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit C C-1 hereto, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) promptly give ~~prompt~~ notice and a copy thereof to ~~BMCA and each other Agent~~the Borrower. ~~In the case of any assignment by a Lender, within~~ Within five Business Days after its receipt of such notice, the ~~Borrowers~~Borrower, at ~~their~~ its own expense, ~~shall, if requested by the assignee,~~ shall execute and deliver to the ~~Administrative~~ Agent in exchange for the surrendered Revolving Credit Note ~~or Notes an amended and restated~~ a new Revolving Credit Note ~~(which shall be marked “Amended and Restated”)~~ to ~~the order of~~ such Eligible Assignee or other entity in an amount equal to the ~~Term Loan~~ Revolving Credit Commitment assumed by it ~~under each Facility~~ pursuant to such Assignment and Acceptance and, if ~~any~~ the assigning Lender has retained a ~~Term Loan~~ Revolving Credit Commitment ~~hereunder under such Facility and has requested~~ hereunder, a ~~replacement Note, an amended and restated~~ new Revolving Credit Note to the ~~order of such~~ assigning Lender in an amount equal to the ~~Term Loan~~ Revolving Credit Commitment retained by it hereunder. Such ~~amended and restated~~ new Revolving Credit 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 Assignment and Acceptance and shall otherwise be in substantially the form of Exhibit A A-1 hereto. (gf) Each Lender may sell participations to one or more ~~Persons~~ banks or other entities (other than ~~any Loan Party~~ the Borrower or any of its Affiliates) in or to all or a portion of its rights and obligations under this Agreement (~~including~~ including, without limitation, all or a portion of its ~~Term Loan Commitments~~Revolving Credit Commitment, the ~~Term Loan~~ Advances owing to it and the Note or Notes ~~(if any)~~ held by it); provided, however, that (i) such Lender’s 's obligations under this Agreement (~~including~~ including, without limitation, its ~~Term Loan Commitments~~Revolving Credit Commitment hereunder) shall remain unchanged, (ii) 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, (iv) the ~~Borrowers~~Borrower, the ~~Agents~~ Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s 's rights and obligations under this ~~Agreement and~~ Agreement, (v) no participant under any such participation shall have any right to approve any amendment or waiver of any provision of this Agreement or any ~~Loan Document~~Note, or any consent to any departure by ~~any Loan Party~~ the Borrower therefrom, except to the extent that such amendment, waiver or consent ~~requires~~ would reduce the ~~consent~~ principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, or postpone any date fixed for any payment of ~~all Lenders~~principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation and (vi) notwithstanding the foregoing, each Lender may sell participations in Competitive Bid Advances as contemplated by the related Notice of Competitive Bid Borrowing. Each Lender selling participations shall provide prompt notice to the Borrower and the Agent of such participations and the purchasers of such participations. (h) Any Lender may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section 8.07, disclose to the assignee or participant or proposed assignee or participant any information relating to the Borrowers furnished to such Lender by or on behalf of the Borrowers; provided, however, 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 received by it from such Lender in accordance with the terms of Section 8.09. (i) Notwithstanding any other provision set forth in this Agreement, any Lender may at any time create a security interest in all or any portion of its rights under this Agreement (~~including~~ including, without limitation, the ~~Term Loan~~ 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 System. (ji) ~~Notwithstanding anything~~ Any Lender may at any time designate with the prior written consent of the Borrower (such consent not to be unreasonably withheld or delayed) not more than one Designated Lender to fund Advances on behalf of such Designating Lender subject to the contrary contained herein, any Lender that is a fund that invests in bank loans may create a security interest in all or any portion of the Term Loan Advances owing to it and the Note or Notes held by it to the trustee for holders of obligations owed, or securities issued, by such fund as security for such obligations or securities, provided, that unless and until such trustee actually becomes a Lender in compliance with the other provisions terms of this Section ~~8.07~~8.07(i) and the provisions of Sections 8.07(a) through (h) shall not apply to such designation. No Lender may have more than one Designated Lender at any time. Such designation may occur either by the execution before the Effective Date of the signature pages of an Assignment and Acceptance by such Lender and Designated Lender next to the appropriate "Designating Lender" and "Designated Lender" captions, or by execution by such parties of a Designation Agreement on or after the Effective Date; provided that any Lender and its Designated Lender executing the signature pages of any Assignment and Acceptance as "Designating Lender" and "Designated Lender", respectively, before the Effective Date shall be deemed to have executed a Designation Agreement, and shall be bound by the respective representations, warranties and covenants contained therein. The parties to each such designation occurring on or after the Effective Date shall execute and deliver to the Agent and the Borrower for their acceptance a Designation Agreement. Upon such receipt of an appropriately completed Designation Agreement executed by a Designating Lender and a designee representing that it is a Designated Lender and consented to by the Borrower, the Agent will accept such Designation Agreement and will give prompt notice thereof to the Borrower and the other Lenders, whereupon (i) ~~no such pledge~~ the Borrower shall ~~release~~ execute and deliver to the ~~pledging~~ Designating Lender ~~from any of its obligations under~~ a Designated Lender Note payable to the ~~Loan Documents and (ii) such trustee shall not be entitled to exercise any~~ order of the rights of a Lender under the Loan Documents even though such trustee may have acquired ownership rights with respect to the pledged interest through foreclosure or otherwise. (k) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Designated Lender”) may grant to a special purpose funding vehicle identified as such in writing from time to time by the Granting Lender to the Administrative Agent and BMCA (an “SPC”) the option to provide all or any part of any Term Loan Advance that such Granting Lender would otherwise be obligated to make pursuant to this Agreement, provided that (i) nothing herein shall constitute a commitment by any SPC to fund any Term Loan Advance, and (ii) if an SPC elects not to exercise such option or otherwise fails to make all or any part of such Term Loan Advance, the Granting Lender shall be obligated to make such Term Loan Advance pursuant to the terms hereof. The making of an Advance by an SPC hereunder shall utilize the Term Loan Commitment of the Granting Lender to the same extent, and as if, such Term Loan Advance were made by such Granting Lender. Each party hereto hereby agrees that (i) no SPC shall be liable for any indemnity or similar payment obligation under this Agreement for which a Lender would be liable, (ii) ~~no SPC~~ from and after the effective date specified in the Designation Agreement, the Designated Lender shall ~~be entitled~~ become a party to ~~the benefits~~ this Agreement with a right to make Advances on behalf of ~~Sections 2.09 and 2.11 (or any other increased costs protection provision~~its Designating Lender pursuant to Section 2.01(b) and (iii) the ~~Granting Bank~~ Designated Lender shall not be required to make payments with respect to any obligations in this Agreement except to the extent of excess cash flow of such Designated Lender which is not otherwise required to repay obligations of such Designated Lender which are then due and payable; provided, however, that regardless of such designation and assumption by the Designated Lender, the Designating Lender shall be and remain obligated to the Borrower, the Agent and the Lenders for ~~all purposes, including the approval of any amendment or waiver of any provision of any Loan Document, remain the Lender of record hereunder. In furtherance~~ each and every of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior Debt of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency, or liquidation proceeding under the laws obligations of the ~~United States or any State thereof. Notwithstanding anything~~ Designating Lender and its related Designated Lender with respect to ~~the contrary contained in~~ this Agreement, including, without limitation, any ~~SPC may~~ indemnification obligations under Section 7.05 hereof, and any sums otherwise payable to the Borrower by the Designated Lender. Each Designating Lender, or specified branch or affiliate thereof, shall serve as the administrative agent of its Designated Lender and shall on behalf of its Designated Lender: (i) ~~with notice to~~receive any and all payments made for the benefit of such Designated Lender and (ii) give and receive all communications and notices and take all actions hereunder, ~~but~~ including, without ~~prior~~ limitation, votes, approvals, waivers, consents and amendments under or relating to this Credit Agreement. Any such notice, communication, vote, approval, waiver, consent ofor amendment shall be signed by a Designating Lender, ~~BMCA~~ or specified branch or affiliate thereof, as administrative agent for its Designated Lender and need not be signed by such Designated Lender on its own behalf. The Borrower, the Agent and the ~~Administrative Agent and with~~ Lenders may rely thereon without any requirement that the ~~payment of a processing fee of $500 and without paying any processing fee therefor,~~ Designated Lender sign or acknowledge the same. No Designated Lender may assign or transfer all or any portion of its interest ~~in any Term Loan Advance to the Granting Lender and (ii) disclose on a confidential basis any non-public information relating~~ hereunder, other than via an assignment to its ~~funding of Term Loan Advance to any rating agency, commercial paper dealer~~ Designating Lender or ~~provider of any surety or guarantee or credit or liquidity enhancement to such SPC. This subsection (k) may not be amended without the prior written consent of each Granting~~ Liquidity Lender, ~~all~~ if any, or ~~any part~~ otherwise in accordance with the provisions of ~~whose Term Loan Advances are being funded by the SPC at the time of such amendment~~Section 8.07(a) through (h) hereof.

Appears in 1 contract

Samples: Credit Agreement (Mirant Corp)

Assignments and Participations. (a) Each Lender ~~may~~may with the consent of the Agent and, unless an Event of Default has occurred and is continuing at the time of such assignment, the Borrower (which consent, in each case, shall not be unreasonably withheld or delayed) and, if demanded by the Borrower (following (x) a demand by such Lender pursuant to Section 2.10 or 2.13, (y) a default by such Lender in the performance of its obligations hereunder or (z) such Lender’s refusal to approve any amendment or waiver to this Agreement requested by the Borrower) upon at least five Business Days’ notice to such Lender and the ~~Administrative~~ Agent, will assign to one or more ~~Eligible Assignees~~ Persons all or a portion of its rights and obligations under this Agreement (~~including~~ including, without limitation, all or a portion of its ~~Term Loan~~ Commitment, the ~~Term Loan~~ Advances owing to it and the Note or Notes held by it); provided, however, that (i) each such assignment shall be of a ~~uniform~~constant, and not a varying, percentage of all rights and obligations under ~~this Agreement~~and in respect of one or more Facilities, (ii) except in the case of an assignment to a Person that, immediately prior to such assignment, was a ~~Lender, an Affiliate of any Lender or an Approved Fund of any~~ Lender or an assignment of all of a Lender’s rights and obligations under this Agreement, (x) the ~~aggregate~~ amount of the ~~Term Loan Commitments or Term Loan Advances~~ Commitment of the assigning Lender being assigned ~~to such Eligible Assignee~~ pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $5,000,000 or an integral multiple of $1,000,000 in excess thereof under each Facility for which a Commitment is being assigned and (~~or such lesser amount as~~ y) no assignment which would result in any Lender holding less than $5,000,000 under any Facility shall be ~~approved by the Administrative Agent and, so long as no Default shall have occurred and be continuing at the time of effectiveness of such assignment, BMCA)~~permitted, (iii) each such assignment shall be to an Eligible Assignee, (iv) ~~except in~~ each such assignment made as a result of a demand by the ~~case of~~ Borrower pursuant to this Section 8.07(a) shall be arranged by the Borrower after consultation with the Agent and shall be either an assignment of all of the rights and obligations of the assigning Lender under this Agreement or an assignment of a portion of such rights and obligations made concurrently with another such assignment or other such assignments that together cover all of the rights and obligations of the assigning Lender under this Agreement, (v) no Lender shall be obligated to make any such assignment as a result of a demand by ~~a Person that, immediately prior~~ the Borrower pursuant to this Section 8.07(a) unless and until such Lender shall have received one or more payments from either the Borrower or one or more Eligible Assignees in an aggregate amount at least equal to the aggregate outstanding principal amount of the Advances owing to such ~~assignment, was a~~ Lender, together with accrued interest thereon to ~~one~~ the date of ~~its Affiliates, no such assignments shall be permitted without the consent of the Administrative Agent and, so long as no Default shall have occurred and be continuing at the time of effectiveness~~ payment of such ~~assignment~~principal amount and all other amounts payable to such Lender under this Agreement, ~~BMCA (in each case, which consents shall not be unreasonably withheld)~~ and (vvi) the parties to each such assignment shall execute and deliver to the ~~Administrative~~ Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together with any Note ~~or Notes~~ subject to such assignment and a processing and recordation fee of $~~3,500.~~ 3,500 payable by the parties to each such assignment, provided, however, that in the case of each assignment made as a result of a demand by the Borrower, such recordation fee shall be payable by the Borrower except that no such recordation fee shall be payable in the case of an assignment made at the request of the Borrower to an Eligible Assignee that is an existing Lender, and (bvii) any Lender may, without the approval of the Borrower and the Agent, assign all or a portion of its rights to any of its Affiliates. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in ~~such~~ each Assignment and Acceptance, (ix) the assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, have the rights and obligations of a Lender hereunder and (iiy) the Lender assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (other than its rights under ~~Sections 2.09~~Section 2.10, ~~2.11~~ 2.13 and 8.04 to the extent any claim thereunder relates to an event arising prior to such assignment) and be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all of or the remaining portion of an assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto). (cb) By executing and delivering an Assignment and Acceptance, ~~each~~ the Lender assignor thereunder and ~~each~~ the assignee thereunder confirm to and agree with each other and the other parties ~~thereto and~~ hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with ~~any Loan Document~~ this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value ~~of, or the perfection or priority~~ of ~~any lien or security interest created or purported to be created under or in connection with, any Loan Document~~ this Agreement or any other instrument or document furnished pursuant ~~thereto~~hereto; (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of ~~any Loan Party~~ the Borrower or the performance or observance by ~~any Loan Party~~ the Borrower of any of its obligations under ~~any Loan Document~~ this Agreement or any other instrument or document furnished pursuant ~~thereto~~hereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 4.01 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) such assignee will, independently and without reliance upon ~~any~~ the Agent, such assigning Lender or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) such assignee confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes ~~each~~ the Agent to take such action as agent on its behalf and to exercise such powers and discretion under ~~the Loan Documents~~ this Agreement as are delegated to ~~such~~ the Agent by the terms ~~hereof and thereof~~hereof, together with such powers and discretion as are reasonably incidental thereto; and (vii) such assignee agrees that it will perform in accordance with their terms all of the obligations that by the terms of this Agreement are required to be performed by it as a Lender. (d) The Administrative Agent acting for this purpose (but only for this purpose) as the agent of the Borrowers, shall maintain at its address referred to in Section 8.02 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 Lenders and the Term Loan Commitment of, and principal amount of the Term Loan Advances 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 Borrowers, the Agents and the Lenders shall treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrowers or any Agent or any Lender at any reasonable time and from time to time upon reasonable prior notice. (e) Notwithstanding anything to the contrary contained in clause (b) above, the Term Loan Advances (including the Notes evidencing such Term Loan Advances) are registered obligations and the right, title, and interest of the Lenders and their assignees in and to such Term Loan Advances shall be transferable only upon notation of such transfer in the Register. A Note shall only evidence the Lender’s or an assignee’s right title and interest in and to the related Term Loan Advance, and in no event is any such Note to be considered a bearer instrument or obligation. This Section 8.07 shall be construed so that the Term Loan Advances are at all times maintained in “registered form” within the meaning of sections 163(f), 871(h)(2) and 881(c)(2) of the Internal Revenue Code and any related regulations (or any successor provisions of the Internal Revenue Code or such regulations). Solely for purposes of this and for tax purposes only, the Administrative Agent shall act as each Borrower’s agent for purposes of maintaining such notations of transfer in the Register. (fc) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an ~~assignee~~assignee representing that it is an Eligible Assignee, together with any Note or Notes subject to such assignment, the ~~Administrative~~ Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit C hereto, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to ~~BMCA and each other Agent~~the Borrower. ~~In the case of any assignment by a Lender, within~~ Within five Business Days after its receipt of such notice, the ~~Borrowers~~Borrower, at ~~their~~ its own expense, ~~shall, if requested by the assignee,~~ shall execute and deliver to the ~~Administrative~~ Agent in exchange for the surrendered Note or Notes ~~an amended and restated~~ a new Note ~~(which shall be marked “Amended and Restated”)~~ to the order of such Eligible Assignee in an amount equal to the ~~Term Loan~~ Commitment assumed by it under each Facility pursuant to such Assignment and Acceptance and, if ~~any~~ the assigning Lender has retained a ~~Term Loan~~ Commitment hereunder under such ~~Facility and has requested~~ Facility, a ~~replacement Note, an amended and restated~~ new Note to the order of ~~such~~ the assigning Lender in an amount equal to the ~~Term Loan~~ Commitment retained by it hereunder. Such ~~amended and restated~~ 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 Assignment and Acceptance and shall otherwise be in substantially the form of Exhibit A A-1 or A-2 hereto, as the case may be. (gd) The Agent, acting for this purpose (but only for this purpose) as the agent of the Borrower, shall maintain at its address referred to in Section 8.02 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 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 Agent and the Lenders shall treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice. (e) Each Lender may sell participations to one or more ~~Persons~~ banks or other entities (other than ~~any Loan Party~~ the Borrower or any of its Affiliates) in or to all or a portion of its rights and obligations under this Agreement (~~including~~ including, without limitation, all or a portion of its ~~Term Loan Commitments~~Commitment, the ~~Term Loan~~ Advances owing to it and the Note or Notes ~~(if any)~~ held by it); provided, however, that (i) such Lender’s obligations under this Agreement (~~including~~ including, without limitation, its ~~Term Loan Commitments~~Commitment to the Borrower hereunder) shall remain unchanged, (ii) 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, (iv) the ~~Borrowers~~Borrower, the ~~Agents~~ Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and (v) no participant under any such participation shall have any right to approve any amendment or waiver of any provision of this Agreement or any ~~Loan Document~~Note, or any consent to any departure by ~~any Loan Party~~ the Borrower therefrom, except to the extent that such amendment, waiver or consent ~~requires~~ would reduce the ~~consent~~ principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, or postpone any date fixed for any payment of ~~all Lenders~~principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation. (hf) Each Lender may grant to a special purpose funding vehicle (an “SPC”) the option to fund all or any part of any Advance that such Lender is obligated to fund under this Agreement (and upon the exercise by such SPC of such option to fund, such Lender’s obligations with respect to such Advance shall be deemed satisfied to the extent of any amounts funded by such SPC); provided, however, that (i) such Lender’s obligations under this Agreement (including, without limitation, its Commitment to the Borrower hereunder) shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) the Borrower, the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement, (iv) any such option granted to an SPC shall not constitute a commitment by such SPC to fund any Advance, (v) neither the grant nor the exercise of such option to an SPC shall increase the costs or expenses or otherwise increase or change the obligations of the Borrower under this Agreement (including, without limitation, its obligations under Section 2.09) and (vi) no SPC shall have any right to approve any amendment or waiver of any provision of this Agreement or any Note, nor any consent to any departure by the Borrower therefrom, except to the extent that such amendment, waiver or consent would reduce the principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such grant of funding option, or postpone any date fixed for any payment of principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such grant of funding option. Each party to this Agreement hereby agrees that no SPC shall be liable for any indemnity or payment under this Agreement for which a Lender would otherwise be liable. Subject to the foregoing provisions of this clause (f), an SPC shall have all the rights of the granting Lender. An SPC may assign or participate all or a portion of its interest in any Advances to the granting Lender or to any financial institution providing liquidity or credit support to or for the account of such SPC without paying any processing fee therefor and, in connection therewith may disclose on a confidential basis any information relating to the Borrower to any rating agency, commercial paper dealer or provider of any surety, guarantee or credit or liquidity enhancements to such SPC. In furtherance of the foregoing, each party hereto agrees (which agreements shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior indebtedness of any SPC, it will not institute against, or join any other Person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any State thereof. (g) Any Lender may, in connection with any ~~assignment or~~ assignment, participation or grant of funding option or proposed ~~assignment~~ assignment, participation or ~~participation~~ grant of funding option pursuant to this Section 8.07, disclose to the ~~assignee or~~ assignee, participant or SPC or proposed ~~assignee~~ assignee, participant or ~~participant~~ SPC any information relating to the ~~Borrowers~~ Borrower furnished to such Lender by or on behalf of the ~~Borrowers~~Borrower; provided, however, that, prior to any such disclosure, the ~~assignee or~~ assignee, participant or SPC or proposed ~~assignee~~ assignee, participant or ~~participant~~ SPC shall agree to preserve the confidentiality of any Confidential Information received by it from such ~~Lender in accordance with the terms of Section 8.09~~Lender. (ih) Notwithstanding any other provision set forth in this Agreement, any Lender may at any time create a security interest in all or any portion of its rights under this Agreement (~~including~~ including, without limitation, the ~~Term Loan~~ 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 System. (j) Notwithstanding anything to the contrary contained herein, any Lender that is a fund that invests in bank loans may create a security interest in all or any portion of the Term Loan Advances owing to it and the Note or Notes held by it to the trustee for holders of obligations owed, or securities issued, by such fund as security for such obligations or securities, provided, that unless and until such trustee actually becomes a Lender in compliance with the other provisions of this Section 8.07, (i) no such pledge shall release the pledging Lender from any of its obligations under the Loan Documents and (ii) such trustee shall not be entitled to exercise any of the rights of a Lender under the Loan Documents even though such trustee may have acquired ownership rights with respect to the pledged interest through foreclosure or otherwise. (k) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Lender”) may grant to a special purpose funding vehicle identified as such in writing from time to time by the Granting Lender to the Administrative Agent and BMCA (an “SPC”) the option to provide all or any part of any Term Loan Advance that such Granting Lender would otherwise be obligated to make pursuant to this Agreement, provided that (i) nothing herein shall constitute a commitment by any SPC to fund any Term Loan Advance, and (ii) if an SPC elects not to exercise such option or otherwise fails to make all or any part of such Term Loan Advance, the Granting Lender shall be obligated to make such Term Loan Advance pursuant to the terms hereof. The making of an Advance by an SPC hereunder shall utilize the Term Loan Commitment of the Granting Lender to the same extent, and as if, such Term Loan Advance were made by such Granting Lender. Each party hereto hereby agrees that (i) no SPC shall be liable for any indemnity or similar payment obligation under this Agreement for which a Lender would be liable, (ii) no SPC shall be entitled to the benefits of Sections 2.09 and 2.11 (or any other increased costs protection provision) and (iii) the Granting Bank shall for all purposes, including the approval of any amendment or waiver of any provision of any Loan Document, remain the Lender of record hereunder. In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior Debt of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency, or liquidation proceeding under the laws of the United States or any State thereof. Notwithstanding anything to the contrary contained in this Agreement, any SPC may (i) with notice to, but without prior consent of, BMCA and the Administrative Agent and with the payment of a processing fee of $500 and without paying any processing fee therefor, assign all or any portion of its interest in any Term Loan Advance to the Granting Lender and (ii) disclose on a confidential basis any non-public information relating to its funding of Term Loan Advance to any rating agency, commercial paper dealer or provider of any surety or guarantee or credit or liquidity enhancement to such SPC. This subsection (k) may not be amended without the prior written consent of each Granting Lender, all or any part of whose Term Loan Advances are being funded by the SPC at the time of such amendment.

Appears in 1 contract

Samples: Credit Agreement (Nacco Industries Inc)

Assignments and Participations. (a) Each Lender ~~may, upon at least five Business Days’ notice to such Lender and the Administrative Agent,~~ may assign to one or more Eligible Assignees all or a portion of its rights and obligations under this Agreement (~~including~~ including, without limitation, all or a portion of its ~~Term Loan Commitment~~Commitment or Commitments, the ~~Term Loan~~ Advances owing to it and the Note or Notes held by it); provided, however, that (i) each such assignment shall be of a uniform, and not a varying, percentage of all rights and obligations under ~~this Agreement~~and in respect of one or more Facilities, (ii) except in the case of an assignment to a Person that, immediately prior to 107 102 such assignment, was a Lender, an Affiliate of any Lender or an Approved Fund of any Lender or an assignment of all of a Lender’s 's rights and obligations under this Agreement, the aggregate amount of the ~~Term Loan~~ Commitments ~~or Term Loan Advances~~ being assigned to such Eligible Assignee pursuant to such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $~~5,000,000 (or such lesser amount as shall be approved by~~ 1 million for the ~~Administrative Agent and, so long as no Default shall have occurred~~ Term A Facility and ~~be continuing at~~ $5 million for the ~~time of effectiveness of such assignment, BMCA)~~Revolving Credit Facility under each Facility for which a Commitment is being assigned, (iii) each such assignment shall be to an Eligible Assignee, and (iv) except in the case of an assignment by a Person that, immediately prior to such assignment, was a Lender, to one of its Affiliates, no such assignments shall be permitted without the consent of the Administrative Agent and, so long as no Default shall have occurred and be continuing at the time of effectiveness of such assignment, BMCA (in each case, which consents shall not be unreasonably withheld) and (v) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together with ~~any Note or Notes subject to such assignment and~~ a processing and recordation fee of $3,500. (b) Notwithstanding anything to the contrary contained herein, any Bank (a "GRANTING Bank") may grant to a special purpose funding vehicle (a "SPC"), identified as such in writing from time to time by the Granting Bank to the Administrative Agent and the Borrower, the option to provide to the Borrower all or any part of any Advance that such Granting Bank would otherwise be obligated to make to the Borrower pursuant to this Agreement; provided that (i) nothing herein shall constitute a commitment by any SPC to make any Advance, (ii) if an SPC elects not to exercise such option or otherwise fails to provide all or any part of such Advance, the Granting Bank shall be obligated to make such Advance pursuant to the terms hereof. The making of an Advance by an SPC hereunder shall utilize the Commitment of the Granting Bank to the same extent, and as if, such Advance were made by such Granting Bank. Each party hereto hereby agrees that no SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the Granting Bank). No SPC, whether or not such SPC shall have funded any portion of any Advance hereunder, shall be deemed a Lender for any purpose, including but not limited to, the granting of any amendment or waiver of any provision of this Agreement or the Notes, or the taking of any action pursuant to Article VI of this Agreement, and shall not be entitled to direct its Granting Lender with respect to any such consent, waiver, or action, and its Granting Lender shall be deemed the Lender hereunder for all such purposes. (c) Upon such execution, delivery, ~~acceptance~~ acceptance, consent (if necessary) and recording, from and after the effective date specified in such 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, have the rights and obligations of a Lender or Issuing Bank, as the case may be, hereunder and (ii) the Lender or Issuing Bank assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (other than its rights under Sections ~~2.09~~2.10, ~~2.11~~ 2.12 and ~~8.04~~ 9.04 to the extent any claim thereunder relates to an event arising prior to such assignment) and be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all of the remaining portion of an assigning Lender’s 's or Issuing Bank's rights and obligations under this Agreement, such Lender or Issuing Bank shall cease to be a party hereto). (cd) By executing and delivering an Assignment and Acceptance, each Lender Party assignor thereunder and each assignee thereunder confirm to and agree with each other and the 108 103 other parties thereto and hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender Party makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with any Loan Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value of, or the perfection or priority of any lien or security interest created or purported to be created under or in connection with, any Loan Document or any other instrument or document furnished pursuant thereto; (ii) such assigning Lender Party makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party or the performance or observance by any Loan Party of any of its obligations under any Loan Document or any other instrument or document furnished pursuant thereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 4.01 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) such assignee will, independently and without reliance upon any Agent, such assigning Lender Party or any other Lender Party and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) such assignee confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes each Agent to take such action as agent on its behalf and to exercise such powers and discretion under the Loan Documents as are delegated to such Agent by the terms hereof and thereof, together with such powers and discretion as are reasonably incidental thereto; and (vii) such assignee agrees that it will perform in accordance with their terms all of the obligations that by the terms of this Agreement are required to be performed by it as a ~~Lender~~Lender or Issuing Bank, as the case may be. (de) The Administrative ~~Agent~~ Agent, acting for this purpose (but only for this purpose) as the agent of the ~~Borrowers~~Borrower, shall maintain at its address referred to in Section ~~8.02~~ 9.02 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 ~~Lenders~~ Lender Parties and the ~~Term Loan~~ Commitment under each Facility of, and principal amount of the ~~Term Loan~~ Advances owing under each Facility to, each Lender Party from time to time (the ~~“Register”~~"REGISTER"). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the ~~Borrowers~~Borrower, the Agents and the ~~Lenders shall~~ Lender Parties may treat each Person whose name is recorded in the Register as a Lender Party hereunder for all purposes of this Agreement. The Register shall be available for inspection by the ~~Borrowers~~ Borrower or any Agent or any Lender Party at any reasonable time and from time to time upon reasonable prior notice. (e) Notwithstanding anything to the contrary contained in clause (b) above, the Term Loan Advances (including the Notes evidencing such Term Loan Advances) are registered obligations and the right, title, and interest of the Lenders and their assignees in and to such Term Loan Advances shall be transferable only upon notation of such transfer in the Register. A Note shall only evidence the Lender’s or an assignee’s right title and interest in and to the related Term Loan Advance, and in no event is any such Note to be considered a bearer instrument or obligation. This Section 8.07 shall be construed so that the Term Loan Advances are at all times maintained in “registered form” within the meaning of sections 163(f), 871(h)(2) and 881(c)(2) of the Internal Revenue Code and any related regulations (or any successor provisions of the Internal Revenue Code or such regulations). Solely for purposes of this and for tax purposes only, the Administrative Agent shall act as each Borrower’s agent for purposes of maintaining such notations of transfer in the Register. (f) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender Party and an assignee, consented to in writing by the Borrower, together with any Note or Notes subject to such assignment, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit C hereto, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to ~~BMCA~~ the Borrower and each other Agent. In the case of any assignment by a Lender, within five Business Days after its receipt of such notice, the ~~Borrowers~~Borrower, at ~~their~~ its own expense, ~~shall, if requested by the assignee,~~ shall execute and deliver to the Administrative Agent in exchange for the surrendered Note or Notes ~~an amended and restated~~ a new Note ~~(which shall be marked “Amended and Restated”)~~ to the 109 104 order of such Eligible Assignee (upon its request therefor) in an amount equal to the ~~Term Loan~~ Commitment assumed by it under each Facility pursuant to such Assignment and Acceptance and, if any assigning Lender has retained a ~~Term Loan~~ Commitment hereunder under such ~~Facility and has~~ Facility, a new Note (if requested ~~a replacement Note, an amended and restated Note~~ by such Lender) to the order of such assigning Lender in an amount equal to the ~~Term Loan~~ Commitment retained by it hereunder. Such ~~amended and restated~~ 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 Assignment and Acceptance and shall otherwise be in substantially the form of Exhibit A A-1 or A-2 hereto, as the case may be. (g) The Issuing Bank may assign to an Eligible Assignee all of its rights and obligations under the undrawn portion of its Letter of Credit Commitment at any time; provided, however, that (i) each such assignment shall be to an Eligible Assignee and (ii) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and Acceptance consented to by the Borrower, together with a processing and recordation fee of $3,500. (h) Each Lender Party may sell participations to one or more Persons (other than any Loan Party or any of its Affiliates) in or to all or a portion of its rights and obligations under this Agreement (~~including~~ including, without limitation, all or a portion of its ~~Term Loan~~ Commitments, the ~~Term Loan~~ Advances owing to it and the Note or Notes (if any) held by it); provided, however, that (i) such ~~Lender’s~~ Lender Party's obligations under this Agreement (~~including~~ including, without limitation, its ~~Term Loan~~ Commitments) shall remain unchanged, (ii) such Lender Party shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) such Lender Party shall remain the holder of any such Note for all purposes of this Agreement, (iv) the ~~Borrowers~~Borrower, the Agents and the other ~~Lenders~~ Lender Parties shall continue to deal solely and directly with such Lender Party in connection with such ~~Lender’s~~ Lender Party's rights and obligations under this Agreement and (v) no participant under any such participation shall have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent ~~requires~~ would reduce the ~~consent~~ principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, postpone any date fixed for any payment of principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, or release all ~~Lenders~~or substantially all of the Collateral. (hi) Any Lender Party may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section ~~8.07~~9.07, disclose to the assignee or participant or proposed assignee or participant any information relating to the ~~Borrowers~~ Borrower furnished to such Lender Party by or on behalf of the ~~Borrowers~~Borrower; provided, however, 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 received by it from such Lender ~~in accordance with the terms of Section 8.09~~Party. (ij) Notwithstanding any other provision set forth in this Agreement, any Lender Party may at any time create a security interest in all or any portion of its rights under this Agreement (~~including~~ including, without limitation, the ~~Term Loan~~ Advances owing to it and the Note or Notes held by it) 110 105 in favor of any Federal Reserve Bank in accordance with Regulation A of the Board of Governors of the Federal Reserve System. (j) Notwithstanding anything to the contrary contained herein, any Lender that is a fund that invests in bank loans may create a security interest in all or any portion of the Term Loan Advances owing to it and the Note or Notes held by it to the trustee for holders of obligations owed, or securities issued, by such fund as security for such obligations or securities, provided, that unless and until such trustee actually becomes a Lender in compliance with the other provisions of this Section 8.07, (i) no such pledge shall release the pledging Lender from any of its obligations under the Loan Documents and (ii) such trustee shall not be entitled to exercise any of the rights of a Lender under the Loan Documents even though such trustee may have acquired ownership rights with respect to the pledged interest through foreclosure or otherwise. (k) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Lender”) may grant to a special purpose funding vehicle identified as such in writing from time to time by the Granting Lender to the Administrative Agent and BMCA (an “SPC”) the option to provide all or any part of any Term Loan Advance that such Granting Lender would otherwise be obligated to make pursuant to this Agreement, provided that (i) nothing herein shall constitute a commitment by any SPC to fund any Term Loan Advance, and (ii) if an SPC elects not to exercise such option or otherwise fails to make all or any part of such Term Loan Advance, the Granting Lender shall be obligated to make such Term Loan Advance pursuant to the terms hereof. The making of an Advance by an SPC hereunder shall utilize the Term Loan Commitment of the Granting Lender to the same extent, and as if, such Term Loan Advance were made by such Granting Lender. Each party hereto hereby agrees that (i) no SPC shall be liable for any indemnity or similar payment obligation under this Agreement for which a Lender would be liable, (ii) no SPC shall be entitled to the benefits of Sections 2.09 and 2.11 (or any other increased costs protection provision) and (iii) the Granting Bank shall for all purposes, including the approval of any amendment or waiver of any provision of any Loan Document, remain the Lender of record hereunder. In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior Debt of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency, or liquidation proceeding under the laws of the United States or any State thereof. Notwithstanding anything to the contrary contained in this Agreement, any SPC may (i) with notice to, but without prior consent of, BMCA and the Administrative Agent and with the payment of a processing fee of $500 and without paying any processing fee therefor, assign all or any portion of its interest in any Term Loan Advance to the Granting Lender and (ii) disclose on a confidential basis any non-public information relating to its funding of Term Loan Advance to any rating agency, commercial paper dealer or provider of any surety or guarantee or credit or liquidity enhancement to such SPC. This subsection (k) may not be amended without the prior written consent of each Granting Lender, all or any part of whose Term Loan Advances are being funded by the SPC at the time of such amendment.

Appears in 1 contract

Samples: Credit Agreement (Pacificare Health Systems Inc /De/)

Assignments and Participations. (a) Each Lender ~~may~~may assign, and, if (i) demanded by the Borrower following (x) a payment by the Borrower of Taxes with respect to such Lender in accordance with Section 2.11, (y) the occurrence of an event that would, upon payment to such Lender of amounts hereunder, require a payment by the Borrower of Taxes with respect to such Lender in accordance with Section 2.11 or (z) a demand by such Lender pursuant to Section 2.09(a), (b) or (d) and (ii) upon at least ~~five~~ 30 Business Days’ ' notice to such Lender and the ~~Administrative~~ Paying Agent, ~~assign~~ will assign, to one or more ~~Eligible Assignees~~ banks or other entities all or a portion of its rights and obligations under this Agreement (~~including~~ including, without limitation, all or a portion of its ~~Term Loan Commitment~~Commitment or Commitments, the ~~Term Loan~~ Advances owing to it (including accrued interest) and the Note or Notes held by it); provided, however, that (i) each such assignment shall be of a ~~uniform,~~ fixed and ~~not a varying,~~ the same percentage of all rights and obligations of the assigning Lender under ~~this Agreement~~and in respect of each Facility under which it has a Commitment, (ii) except in the case of an assignment to a Person that, immediately prior to such assignment, was a ~~Lender, an Affiliate of any Lender or an Approved Fund of any~~ Lender or an assignment of all of a Lender’s 's rights and obligations under this Agreement, the ~~aggregate~~ amount of the ~~Term Loan Commitments or Term Loan Advances~~ Commitment of the assigning Lender being assigned ~~to such Eligible Assignee~~ pursuant to each such assignment (determined as of the effective date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $~~5,000,000~~ 15,000,000, and the amount of the Commitment of the assigning Lender being retained by such Lender immediately after giving effect to such assignment (~~or such lesser amount~~ determined as ~~shall be approved by~~ of the ~~Administrative Agent and, so long as no Default shall have occurred~~ effective date of the Assignment and ~~be continuing at the time of effectiveness of~~ Acceptance with respect to such assignment~~, BMCA)~~) shall in no event be less than $15,000,000, (iii) each such assignment shall be to an Eligible Assignee, (iv) ~~except in~~ each such assignment made as a result of a demand by the ~~case of~~ Borrower pursuant to this Section 8.07(a) shall be arranged by the Borrower after consultation with the Agents and shall be either an assignment of all of the rights and obligations of the assigning Lender under this Agreement or an assignment of a portion of such rights and obligations made concurrently with another such assignment or other such assignments that together cover all of the rights and obligations of the assigning Lender under this Agreement, (v) no Lender shall be obligated to make any such assignment as a result of a demand by ~~a Person that, immediately prior~~ the Borrower pursuant to this Section 8.07(a) unless and until such Lender shall have received one or more payments from either the Borrower or one or more Eligible Assignees in an aggregate amount at least equal to the aggregate outstanding principal amount of the Advances owing to such ~~assignment, was a~~ Lender, together with accrued interest thereon to ~~one~~ the date of ~~its Affiliates, no such assignments shall be permitted without the consent of the Administrative Agent and, so long as no Default shall have occurred and be continuing at the time of effectiveness~~ payment of such ~~assignment, BMCA (in each case, which consents shall not be unreasonably withheld)~~ principal amount and all other amounts payable to such Lender under this Agreement and (vvi) the parties to each such assignment shall execute and deliver to the ~~Administrative~~ Paying Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together with any Note or Notes subject to such assignment and, for each Assignment and Acceptance other than an Assignment and Acceptance between a Lender and an assignee which satisfies the requirements of clause (i) of the definition of "Eligible Assignee", a processing and recordation fee of $3,500~~. (b)~~ . Upon such execution, delivery, acceptance and recording, from and after the effective date specified in such Assignment and Acceptance, (ix) the assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, have the rights and obligations of a Lender hereunder and (iiy) the Lender assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights ~~(other than its rights under Sections 2.09, 2.11 and 8.04 to the extent any claim thereunder relates to an event arising prior to such assignment)~~ and be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all of or the remaining portion of an assigning Lender’s 's rights and obligations under this Agreement, such Lender shall cease to be a party hereto). (cb) By executing and delivering an Assignment and Acceptance, ~~each~~ the Lender assignor thereunder and ~~each~~ the assignee thereunder confirm to and agree with each other and the other parties ~~thereto and~~ hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or any other Loan Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value ~~of,~~ of this Agreement or ~~the perfection or priority of~~ any ~~lien or security interest created or purported to be created under or in connection with, any~~ other Loan Document or any other instrument or document furnished pursuant hereto or thereto; (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party or the performance or observance by any Loan Party of any of its obligations under this Agreement or any other Loan Document or any other instrument or document furnished pursuant hereto or thereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of ~~the financial statements referred to in Section 4.01 and~~ such ~~other~~ documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) such assignee will, independently and without reliance upon any Facility Agent, such assigning Lender or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) such assignee confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes each Facility Agent to take such action as agent on its behalf and to exercise such powers and discretion under this Agreement and the other Loan Documents as are delegated to such Facility Agent by the terms ~~hereof and thereof~~hereof, together with such powers and discretion as are reasonably incidental thereto; and (vii) such assignee agrees that it will perform in accordance with their terms all of the obligations that by the terms of this Agreement are required to be performed by it as a Lender. (dc) The ~~Administrative~~ Paying Agent ~~acting for this purpose (but only for this purpose) as the agent of the Borrowers,~~ shall maintain at its address referred to in Section 8.02 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 Lenders and the ~~Term Loan~~ Commitment under each Facility of, and principal amount of the ~~Term Loan~~ Advances owing under each Facility 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 ~~Borrowers~~Borrower, the Facility Agents and the Lenders ~~shall~~ 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 Agent~~ Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice. (e) Notwithstanding anything to the contrary contained in clause (b) above, the Term Loan Advances (including the Notes evidencing such Term Loan Advances) are registered obligations and the right, title, and interest of the Lenders and their assignees in and to such Term Loan Advances shall be transferable only upon notation of such transfer in the Register. A Note shall only evidence the Lender’s or an assignee’s right title and interest in and to the related Term Loan Advance, and in no event is any such Note to be considered a bearer instrument or obligation. This Section 8.07 shall be construed so that the Term Loan Advances are at all times maintained in “registered form” within the meaning of sections 163(f), 871(h)(2) and 881(c)(2) of the Internal Revenue Code and any related regulations (or any successor provisions of the Internal Revenue Code or such regulations). Solely for purposes of this and for tax purposes only, the Administrative Agent shall act as each Borrower’s agent for purposes of maintaining such notations of transfer in the Register. (fd) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee, together with any Note or Notes subject to such assignment, the ~~Administrative~~ Paying Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit C B hereto, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to ~~BMCA and each other Agent~~the Borrower. ~~In the case of any assignment by a Lender, within~~ Within five Business Days after its receipt of such notice, the ~~Borrowers~~Borrower, at ~~their~~ its own expense, ~~shall, if requested by the assignee,~~ shall execute and deliver to the ~~Administrative~~ Paying Agent in exchange for the surrendered Note or Notes ~~an amended and restated~~ a new Note ~~(which shall be marked “Amended and Restated”)~~ or Notes to the order of such Eligible Assignee in an amount equal to the ~~Term Loan~~ Commitment assumed by it under ~~each~~ a Facility pursuant to such Assignment and Acceptance and, if ~~any~~ the assigning Lender has retained a ~~Term Loan~~ Commitment ~~hereunder~~ under such ~~Facility and has requested~~ Facility, a ~~replacement Note, an amended and restated~~ new Note or Notes to the order of ~~such~~ the assigning Lender in an amount equal to the ~~Term Loan~~ Commitment retained by it hereunder. Such ~~amended and restated~~ 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 Assignment and Acceptance and shall otherwise be in substantially the form of Exhibit ~~A hereto.~~C. (ge) Each Lender may sell participations ~~to one or more Persons (other than any Loan Party or any of its Affiliates)~~ in or to all or a portion of its rights and obligations under this Agreement (~~including~~ including, without limitation, all or a portion of its ~~Term Loan~~ Commitments, the ~~Term Loan~~ Advances owing to it and the Note or Notes ~~(if any)~~ held by it); provided, however, that (i) such Lender’s 's obligations under this Agreement (~~including~~ including, without limitation, its ~~Term Loan~~ Commitments) shall remain unchanged, (ii) 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, (iv) the ~~Borrowers~~Borrower, the Facility Agents and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s 's rights and obligations under this Agreement and (v) no participant under any such participation shall have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent ~~requires~~ would reduce the ~~consent~~ principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, postpone any date fixed for any payment of principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, or release (other than as provided by the terms of this Agreement and other Loan Documents) all ~~Lenders~~or substantially all of the Collateral. (hf) Any Lender may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section 8.07, disclose to the assignee or participant or proposed assignee or ~~participant~~ participant, any information relating to the ~~Borrowers~~ Borrower or any other Loan Party furnished to such Lender by or on behalf of the ~~Borrowers~~Borrower or any other Loan Party; provided, however, ~~that,~~ 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 received by it from such ~~Lender in accordance with the terms of Section 8.09~~Lender. (ig) Notwithstanding any other provision set forth in this Agreement, any Lender may at any time create a security 119 interest in all or any portion of its rights under this Agreement (~~including~~ including, without limitation, the ~~Term Loan~~ 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 System. (jh) ~~Notwithstanding anything to~~ In the ~~contrary contained herein~~event that S&P, Moody's or Xxxxxxxx'x BankWatch (or InsuranceWatch Ratings Service, in the case of Lenders that are insurance companies (or Best's Insurance Reports, if such insurance company is not rated by InsuranceWatch Ratings Service)) shall, after the date that any Lender becomes a Lender, downgrade the long-term certificate of deposit ratings of such Lender, and the resulting ratings shall be below BBB- by S&P, Baa3 by Moody's and B by Xxxxxxxx'x BankWatch (or BB, in the case of a Lender that is an insurance company (or, in the case of an insurance company not rated by InsuranceWatch Ratings Service, B by Best's Insurance Reports)), then the Fronting Bank or the Borrower shall have the right, but not the obligation, upon notice to such Lender, to replace (or, in the case of a ~~fund that invests~~ request by the Fronting Bank, to request the Borrower to use its reasonable efforts to replace) such Lender with an assignee Lender (in ~~bank loans may create a security interest~~ accordance with and subject to the restrictions contained in Section 8.07(a)), and such affected Lender hereby agrees to transfer and assign without recourse (in accordance with and subject to the restrictions contained in Section 8.07(a)) all ~~or any portion~~ of ~~the Term Loan~~ its interests, rights and obligations in respect of its Commitment, Advances and other Obligations owing to ~~it and~~ it, together with the ~~Note or Notes held by it~~ obligations of such affected Lender hereunder, to ~~the trustee for holders of obligations owed, or securities issued, by~~ such ~~fund as security for such obligations or securities,~~ assignee Lender; provided, however, that ~~unless and until such trustee actually becomes a Lender in compliance with the other provisions of this Section 8.07,~~ (i) no such ~~pledge~~ assignment shall ~~release the pledging Lender from~~ conflict with any law, rule and regulation or order of ~~its obligations under the Loan Documents~~ any governmental authority and (ii) such ~~trustee~~ assignee Lender shall ~~not be entitled~~ pay to ~~exercise any~~ such affected Lender in immediately available funds on the date of such assignment the ~~rights~~ principal of ~~a Lender under the Loan Documents even though such trustee may have acquired ownership rights with respect~~ and interest accrued to the ~~pledged interest through foreclosure or otherwise. (k) Notwithstanding anything to~~ date of payment on the contrary contained herein, any Lender (a “Granting Lender”) may grant to a special purpose funding vehicle identified as such in writing from time to time by the Granting Lender to the Administrative Agent and BMCA (an “SPC”) the option to provide all or any part of any Term Loan Advance that such Granting Lender would otherwise be obligated to make pursuant to this Agreement, provided that (i) nothing herein shall constitute a commitment by any SPC to fund any Term Loan Advance, and (ii) if an SPC elects not to exercise such option or otherwise fails to make all or any part of such Term Loan Advance, the Granting Lender shall be obligated to make such Term Loan Advance pursuant to the terms hereof. The making of an Advance by an SPC hereunder shall utilize the Term Loan Commitment of the Granting Lender to the same extent, and as if, such Term Loan Advance were Advances made by such ~~Granting~~ Lender hereunder and all other amounts accrued for such Lender~~. Each party hereto hereby agrees that (i) no SPC shall be liable for any indemnity~~ 's account or ~~similar payment obligation under this Agreement for which a Lender would be liable, (ii) no SPC shall be entitled~~ owed to the benefits of Sections 2.09 and 2.11 (or any other increased costs protection provision) and (iii) the Granting Bank shall for all purposes, including the approval of any amendment or waiver of any provision of any Loan Document, remain the Lender of record it hereunder. In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior Debt of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency, or liquidation proceeding under the laws of the United States or any State thereof. Notwithstanding anything to the contrary contained in this Agreement, any SPC may (i) with notice to, but without prior consent of, BMCA and the Administrative Agent and with the payment of a processing fee of $500 and without paying any processing fee therefor, assign all or any portion of its interest in any Term Loan Advance to the Granting Lender and (ii) disclose on a confidential basis any non-public information relating to its funding of Term Loan Advance to any rating agency, commercial paper dealer or provider of any surety or guarantee or credit or liquidity enhancement to such SPC. This subsection (k) may not be amended without the prior written consent of each Granting Lender, all or any part of whose Term Loan Advances are being funded by the SPC at the time of such amendment.

Appears in 1 contract

Samples: Credit Agreement (Authentic Fitness Corp)

Assignments and Participations. (a) Each Lender may, upon ten days’ notice to the Agent (and in the case of an assignment of any Swing Line Commitment, the Sub-Agent) and with the prior consent of each Swing Line Lender (in the case of any assignment of any Revolving Credit Commitment) and the Company (which consents shall not be unreasonably withheld or delayed) and, if demanded by the Company pursuant to Section 2.05 (b) or 2.06(b), upon at least ~~five~~ 20 Business Days’ notice to such Lender and the ~~Administrative~~ Agent, will assign to one or more ~~Eligible Assignees~~ Persons all or a portion of its rights and obligations under this Agreement (~~including~~ including, without limitation, all or a portion of its ~~Term Loan~~ Revolving Credit Commitment, the ~~Term Loan~~ Revolving Credit Advances owing to it and the Revolving Credit Note or Notes held by it or, in the case of a Swing Line Lender, all or a portion of its Swing Line Commitment and the Swing Line Advances owing to it); provided, however, that (i) each such assignment shall be of a ~~uniform~~constant, and not a varying, percentage of all rights and obligations under this Agreement, (ii) except in the case of an assignment to a Person that, immediately prior to such assignment, was a ~~Lender, an Affiliate of any~~ Lender or an ~~Approved Fund~~ affiliate of ~~any Lender~~ a Lender, or an assignment of all of a Lender’s rights and obligations under this Agreement, the ~~aggregate~~ amount of the ~~Term Loan Commitments~~ Revolving Credit Commitment or ~~Term Loan Advances~~ Swing Line Commitment (as applicable) of the assigning Lxxxxx being assigned ~~to such Eligible Assignee~~ pursuant to each such assignment (determined as of the date of the Assignment and ~~Acceptance~~ Assumption with respect to such assignment) shall in no event be less than $5,000,000 (or such lesser amount as shall be approved by the Administrative Agent and, so long as no Default shall have occurred and be continuing at the time of effectiveness of such assignment, BMCA)10,000,000, (iii) each such assignment shall be to an Eligible Assignee, (iv) ~~except in~~ each such assignment made as a result of a demand by the ~~case of~~ Company pursuant to this Section 8.07(a) shall be arranged by the Company after consultation with the Agent and shall be either an assignment of all of the rights and obligations of the assigning Lender under this Agreement or an assignment of a portion of such rights and obligations made concurrently with another such assignment or other such assignments that together cover all of the rights and obligations of the assigning Lender under this Agreement, (v) no Lender shall be obligated to make any such assignment as a result of a demand by ~~a Person that, immediately prior~~ the Company pursuant to this Section 8.07(a) unless and until such Lender shall have received one or more payments from either the Company or one or more Eligible Assignees in an aggregate amount at least equal to the aggregate outstanding principal amount of the Advances owing to such ~~assignment, was a~~ Lender, together with accrued interest thereon to ~~one~~ the date of ~~its Affiliates, no such assignments shall be permitted without the consent of the Administrative Agent and, so long as no Default shall have occurred and be continuing at the time of effectiveness~~ payment of such ~~assignment~~principal amount and all other amounts payable to such Lender under this Agreement, ~~BMCA~~ (~~in each case, which consents shall not be unreasonably withheld) and (v~~vi) the parties to each such assignment shall execute and deliver to the ~~Administrative~~ Agent, for its acceptance and recording in the ~~Register~~Register (as defined in clause (d) below), an Assignment and ~~Acceptance~~Assumption, together with any Revolving Credit Note ~~or Notes~~ requested pursuant to Section 2.13(e) subject to such assignment and a processing and recordation fee of $~~3,500.~~ 3,500 unless waived by the Agent in its sole discretion, and (bvii) the Eligible Assignee shall complete, execute and deliver to the Borrowers and Agent the appropriate tax form pursuant to Section 2.14. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in ~~such~~ each Assignment and ~~Acceptance~~Assumption and upon compliance with clause (vii) of the previous sentence, (ix) 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~~Assumption, have the rights and obligations of a Lender hereunder and (iiy) the Lender assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and ~~Acceptance~~Assumption, relinquish its rights ~~(other than its rights under Sections 2.09, 2.11 and 8.04 to the extent any claim thereunder relates to an event arising prior to such assignment)~~ and be released from its obligations under this Agreement (and, in the case of an Assignment and ~~Acceptance~~ Assumption covering all of or the remaining portion of an assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto); provided that an assigning Lender’s rights to indemnification and reimbursement pursuant to Section 8.04 and its rights and obligations under Sections 2.11 and 2.14 shall survive assignment hereunder. Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Lender”) may grant to a special purpose vehicle (an “SPV”) of such Granting Lender, identified as such in writing from time to time by the Granting Lender to the Agent and the Company, the option to provide to the Borrowers all or any part of any Advance that such Granting Lender would otherwise be obligated to make to the Borrowers pursuant to Section 2.01, provided that (i) nothing herein shall constitute a commitment by any SPV to make any Advance, (ii) if an SPV elects not to exercise such option or otherwise fails to provide all or any part of such Advance, the Granting Lender shall be obligated to make such Advance pursuant to the terms hereof and (iii) the Borrowers may bring any proceeding against either the Granting Lender or the SPV in order to enforce any rights of the Borrowers hereunder. The making of an Advance by an SPV hereunder shall utilize the Commitment of the Granting Lender to the same extent, and as if, such Advance were made by the Granting Lender. Each party hereto hereby agrees that no SPV shall be liable for any payment under this Agreement for which a Lender would otherwise be liable, for so long as, and to the extent, the related Granting Lender makes such payment. In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior indebtedness of any SPV, it will not institute against, or join any other person in instituting against, such SPV any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings or similar proceedings under the laws of the United States or any State thereof arising out of any claim against such SPV under this Agreement. In addition, notwithstanding anything to the contrary contained in this Section, any SPV may with notice to, but without the prior written consent of, the Company or the Agent and without paying any processing fee therefor, assign all or a portion of its interests in any Advances to its Granting Lender or to any financial institutions (consented to by the Company and the Agent) providing liquidity and/or credit support (if any) with respect to commercial paper issued by such SPV to fund such Advances and such SPV may disclose, on a confidential basis, confidential information with respect to the Company and its Subsidiaries to any rating agency, commercial paper dealer or provider of a surety, guarantee or credit liquidity enhancement to such SPV. This paragraph may not be amended without the consent of any SPV at the time holding Advances under this Agreement. (cb) By executing and delivering an Assignment and ~~Acceptance~~Assumption, ~~each~~ the Lender assignor thereunder and ~~each~~ the assignee thereunder confirm to and agree with each other and the other parties ~~thereto and~~ hereto as follows: (i) other than as provided in such Assignment and ~~Acceptance~~Assumption, 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 ~~any Loan Document~~ this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of, or the perfection or priority of any lien or security interest created or purported to be created under or in connection with, ~~any Loan Document~~ this Agreement or any other instrument or document furnished pursuant ~~thereto~~hereto; (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any ~~Loan Party~~ Borrower or the performance or observance by any ~~Loan Party~~ Borrower of any of its obligations under ~~any Loan Document~~ this Agreement or any other instrument or document furnished pursuant ~~thereto~~hereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 4.01 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and ~~Acceptance~~Assumption; (iv) such assignee will, independently and without reliance upon ~~any~~ the Agent, such assigning Lender or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) such assignee confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes ~~each~~ the Agent to take such action as agent on its behalf and to exercise such powers and discretion under ~~the Loan Documents~~ this Agreement as are delegated to ~~such~~ the Agent by the terms ~~hereof and thereof~~hereof, together with such powers and discretion as are reasonably incidental thereto; and (vii) such assignee agrees that it will perform in accordance with their terms all of the obligations that by the terms of this Agreement are required to be performed by it as a Lender. (c) Upon its receipt of an Assignment and Assumption executed by an assigning Lender and an assignee representing that it is an Eligible Assignee, together with any Revolving Credit Note or Notes subject to such assignment, the Agent shall, if such Assignment and Assumption has been completed and is in substantially the form of Exhibit C hereto, (i) accept such Assignment and Assumption, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the Company. The relevant Borrower, at its own expense, shall if so requested pursuant to Section 2.13(e) execute and deliver to the Agent in exchange for the surrendered Revolving Credit Note a new Revolving Credit Note to the order of such Eligible Assignee in an amount equal to the Commitment assumed by it pursuant to such Assignment and Assumption and, if the assigning Lender has retained a Commitment hereunder, a new Revolving Credit Note to the order of the assigning Lender in an amount equal to the Commitment retained by it hereunder. Such new Revolving Credit Note or Notes shall be in an aggregate principal amount equal to the aggregate principal amount of such surrendered Revolving Credit Note or Notes, shall be dated the effective date of such Assignment and Assumption and shall otherwise be in substantially the form of Exhibit A hereto. (d) The ~~Administrative~~ Agent acting solely for this purpose ~~(but only for this purpose)~~ as ~~the~~ a nonfiduciary agent of the ~~Borrowers,~~ relevant Borrower shall maintain at its address referred to in Section 8.02 if such address is within the United States and, if not, at one of its offices located within the United States a copy of each Assignment and ~~Acceptance~~ Assumption delivered to and accepted by it and a register for the recordation of the names and addresses of the Lenders ~~and~~ and, with respect to Lxxxxxx, the ~~Term Loan~~ Commitment of, and principal amount of the ~~Term Loan~~ 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 Borrowers~~each Borrower, the ~~Agents~~ Agent and the Lenders ~~shall~~ 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~~ Company or any ~~Agent or any Lender~~ Lender, as to its Commitment, at any reasonable time and from time to time upon reasonable prior notice. (e) ~~Notwithstanding anything~~ Each Lender may, with the prior consent of the Company (which consent shall not be unreasonably withheld or delayed), upon notice to the ~~contrary contained in clause (b) above~~Agent, the Term Loan Advances (including the Notes evidencing such Term Loan Advances) are registered obligations and the right, title, and interest of the Lenders and their assignees in and to such Term Loan Advances shall be transferable only upon notation of such transfer in the Register. A Note shall only evidence the Lender’s or an assignee’s right title and interest in and to the related Term Loan Advance, and in no event is any such Note to be considered a bearer instrument or obligation. This Section 8.07 shall be construed so that the Term Loan Advances are at all times maintained in “registered form” within the meaning of sections 163(f), 871(h)(2) and 881(c)(2) of the Internal Revenue Code and any related regulations (or any successor provisions of the Internal Revenue Code or such regulations). Solely for purposes of this and for tax purposes only, the Administrative Agent shall act as each Borrower’s agent for purposes of maintaining such notations of transfer in the Register. (f) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee, together with any Note or Notes subject to such assignment, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit C hereto, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to BMCA and each other Agent. In the case of any assignment by a Lender, within five Business Days after its receipt of such notice, the Borrowers, at their own expense, shall, if requested by the assignee, execute and deliver to the Administrative Agent in exchange for the surrendered Note or Notes an amended and restated Note (which shall be marked “Amended and Restated”) to the order of such Eligible Assignee in an amount equal to the Term Loan Commitment assumed by it under each Facility pursuant to such Assignment and Acceptance and, if any assigning Lender has retained a Term Loan Commitment hereunder under such Facility and has requested a replacement Note, an amended and restated Note to the order of such assigning Lender in an amount equal to the Term Loan Commitment retained by it hereunder. Such amended and restated 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 Assignment and Acceptance and shall otherwise be in substantially the form of Exhibit A hereto. (g) Each Lender may sell participations to one or more ~~Persons~~ banks or other entities (other than ~~any Loan Party~~ the Company or any Affiliate of ~~its Affiliates~~the Company) in or to all or a portion of its rights and obligations under this Agreement (~~including~~ including, without limitation, all or a portion of its ~~Term Loan Commitments~~Commitment, the ~~Term Loan~~ Advances owing to it (including such Lender’s participations in Swing Line Advances) and the Note or Notes ~~(if any)~~ held by it); provided, however, that (i) such Lender’s obligations under this Agreement (~~including~~ including, without limitation, its ~~Term Loan Commitments~~Commitment hereunder) shall remain unchanged, (ii) 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, (iv) the Borrowers, the ~~Agents~~ Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and (v) no participant under any such participation shall have any right to approve any amendment or waiver of any provision of this Agreement or any ~~Loan Document~~Note, or any consent to any departure by any ~~Loan Party~~ Borrower therefrom, except to the extent that such amendment, waiver or consent ~~requires~~ would reduce the ~~consent~~ principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, postpone any date fixed for any payment of principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation or release the Company from its obligations hereunder, including, without limitation, its obligations under Article IX. Each Lender that sells a participation shall, acting solely for this purpose as a nonfiduciary agent of the relevant Borrower, maintain a register at one of its offices located within the United States on which it enters the name and address of each participant and the Commitment of, and principal amount of the Advances owing to, each participant from time to time (the “Participant Register”); provided that no Lender shall have any obligation to disclose all ~~Lenders~~or any portion of the Participant Register to any Person (including the identity of any participant or any information relating to a participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive and binding, 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. (hf) Any Lender may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section 8.07, disclose to the assignee or participant or proposed assignee or participant any information relating to ~~the Borrowers~~ any Borrower furnished to such Lender by or on behalf of ~~the Borrowers~~any Borrower; ~~provided, however,~~ 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 Borrowers received by it from such ~~Lender in accordance with the terms of Section 8.09~~Lender. (ig) Notwithstanding any other provision set forth in this Agreement, any Lender may at any time create a security interest in all or any portion of its rights under this Agreement (~~including~~ including, without limitation, the ~~Term Loan~~ 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 System. (j) Notwithstanding anything to the contrary contained herein, any Lender that is a fund that invests in bank loans may create a security interest in all or any portion of the Term Loan Advances owing to it and the Note or Notes held by it to the trustee for holders of obligations owed, or securities issued, by such fund as security for such obligations or securities, provided, that unless and until such trustee actually becomes a Lender in compliance with the other provisions of this Section 8.07, (i) no such pledge shall release the pledging Lender from any of its obligations under the Loan Documents and (ii) such trustee shall not be entitled to exercise any of the rights of a Lender under the Loan Documents even though such trustee may have acquired ownership rights with respect to the pledged interest through foreclosure or otherwise. (k) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Lender”) may grant to a special purpose funding vehicle identified as such in writing from time to time by the Granting Lender to the Administrative Agent and BMCA (an “SPC”) the option to provide all or any part of any Term Loan Advance that such Granting Lender would otherwise be obligated to make pursuant to this Agreement, provided that (i) nothing herein shall constitute a commitment by any SPC to fund any Term Loan Advance, and (ii) if an SPC elects not to exercise such option or otherwise fails to make all or any part of such Term Loan Advance, the Granting Lender shall be obligated to make such Term Loan Advance pursuant to the terms hereof. The making of an Advance by an SPC hereunder shall utilize the Term Loan Commitment of the Granting Lender to the same extent, and as if, such Term Loan Advance were made by such Granting Lender. Each party hereto hereby agrees that (i) no SPC shall be liable for any indemnity or similar payment obligation under this Agreement for which a Lender would be liable, (ii) no SPC shall be entitled to the benefits of Sections 2.09 and 2.11 (System or any other increased costs protection provision) and (iii) the Granting Bank shall for all purposes, including the approval of any amendment or waiver of any provision of any Loan Document, remain the Lender of record hereunder. In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior Debt of any SPC, it will not institute against, or join any other person in instituting against, central bank having jurisdiction over such SPC any bankruptcy, reorganization, arrangement, insolvency, or liquidation proceeding under the laws of the United States or any State thereof. Notwithstanding anything to the contrary contained in this Agreement, any SPC may (i) with notice to, but without prior consent of, BMCA and the Administrative Agent and with the payment of a processing fee of $500 and without paying any processing fee therefor, assign all or any portion of its interest in any Term Loan Advance to the Granting Lender and (ii) disclose on a confidential basis any non-public information relating to its funding of Term Loan Advance to any rating agency, commercial paper dealer or provider of any surety or guarantee or credit or liquidity enhancement to such SPC. This subsection (k) may not be amended without the prior written consent of each Granting Lender~~, all or any part of whose Term Loan Advances are being funded by the SPC at the time of such amendment~~.

Appears in 1 contract

Samples: Credit Agreement (Pepsico Inc)

Assignments and Participations. (a) Each Lender ~~may~~may at any time, ~~upon at least five Business Days’~~ with notice to ~~such Lender~~ the Company prior to making any proposal to any potential assignee and with the ~~Administrative Agent~~consent of the Company, which consent shall not be unreasonably withheld (and shall at any time, if requested to do so by the Company pursuant to Section 2.06(b), 2.11 or 2.14) assign to one or more ~~Eligible Assignees~~ Persons all or a portion of its rights and obligations under a Facility or all Facilities (it being understood that any assignment under the Revolving Credit Facility shall include a proportionate assignment under the Swing Line Facility, as applicable) under this Agreement (~~including~~ including, without limitation, all or a portion of its ~~Term Loan~~ Revolving Credit Commitment, Unissued Letter of Credit Commitment, the ~~Term Loan~~ Revolving Credit Advances owing to it it, its participations in Letters of Credit and the Revolving Credit Note or Notes held by it); provided, however, that (i) the Company’s consent shall not be required (A) in the case of an assignment of Revolving Credit Commitment, Revolving Credit Advances and participations in Letters of Credit to another Lender or to an Affiliate of such assigning Lender, provided that notice thereof shall have been given to the Company and the Agent or (B) in the case of an assignment of the type described in subsection (g) below; provided that the Company shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to the Agent within ten Business Days after having received notice thereof; (ii) each such assignment shall be of a ~~uniform~~constant, and not a varying, percentage of ~~all~~ the rights and obligations under this ~~Agreement,~~ Agreement specified in the applicable Assignment and Acceptance; (iiiii) except in the case of an assignment to a Person that, immediately prior to such assignment, was a ~~Lender, an Affiliate of any Lender or an Approved Fund of any~~ Lender or an assignment of all of a Lender’s rights and obligations under this Agreement, the ~~aggregate~~ amount of (x) the ~~Term Loan Commitments or Term Loan Advances~~ Revolving Credit Commitment of the assigning Lender being assigned ~~to such Eligible Assignee~~ pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $~~5,000,000~~ 10,000,000 or an integral multiple of $1,000,000 in excess thereof and (or y) Unissued Letter of Credit Commitment of the assigning Lender being assigned pursuant to each such ~~lesser amount~~ assignment (determined as ~~shall be approved by~~ of the ~~Administrative Agent and, so long as no Default shall have occurred~~ date of the Assignment and ~~be continuing at the time of effectiveness of~~ Acceptance with respect to such assignment~~, BMCA),~~ ) shall in no event be less than $1,000,000 or an integral multiple thereof; (~~iii~~iv) each such assignment shall be to an Eligible Assignee, (ivv) ~~except in~~ each such assignment made as a result of a demand by the ~~case of~~ Company pursuant to this Section 9.06(a) shall be arranged by the Company after consultation with, and subject to the approval of, the Agent, and shall be either an assignment of all of the rights and obligations of the assigning Lender under this Agreement or an assignment of a portion of such rights and obligations made concurrently with another such assignment or other such assignments that together cover all of the rights and obligations of the assigning Lender under this Agreement, (vi) no Lender shall be obligated to make any such assignment as a result of a demand by ~~a Person that, immediately prior~~ the Company pursuant to this Section 9.06(a) unless and until such Lender shall have received one or more payments from either the Borrowers or one or more Eligible Assignees in an aggregate amount at least equal to the aggregate outstanding principal amount of the Advances owing to such ~~assignment, was a~~ Lender, together with accrued interest thereon to ~~one~~ the date of ~~its Affiliates, no~~ payment of such ~~assignments shall be permitted without the consent~~ principal amount and all other amounts payable to such Lender under this Agreement and all of the ~~Administrative Agent and, so long as no Default~~ obligations of the Borrowers to such Lender shall have ~~occurred and be continuing at the time of effectiveness of such assignment, BMCA (in each case, which consents shall not be unreasonably withheld)~~ been satisfied; and (vvii) the parties to each such assignment shall execute and deliver to the ~~Administrative~~ Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together with ~~any Note or Notes subject to such assignment and~~ a processing and recordation fee of $~~3,500. (b)~~ 3,500 and, if the assigning Lender is not retaining a Commitment hereunder, any Revolving Credit Note subject to such assignment. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in ~~such~~ each Assignment and Acceptance, (ix) the assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, have the rights and obligations of a Lender hereunder and (iiy) the Lender assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights ~~(other than its rights under Sections 2.09, 2.11 and 8.04 to the extent any claim thereunder relates to an event arising prior to such assignment)~~ and be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all of or the remaining portion of an assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto, provided, however, that such assigning Lender’s rights under Sections 2.11, 2.14 and 9.04, and its obligations under Section 8.05, shall survive such assignment as to matters occurring prior to the effective date of such assignment). (cb) By executing and delivering an Assignment and Acceptance, ~~each~~ the Lender assignor thereunder and ~~each~~ the assignee thereunder confirm to and agree with each other and the other parties ~~thereto and~~ hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or any ~~Loan Document~~ other instrument or document furnished pursuant hereto or the execution, legality, validity, enforceability, genuineness, sufficiency or value of, or the perfection or priority of any lien or security interest created or purported to be created under or in connection with, ~~any Loan Document~~ this Agreement or any other instrument or document furnished pursuant ~~thereto~~hereto; (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any ~~Loan Party~~ Borrower or the performance or observance by ~~any Loan Party~~ such Borrower of any of its obligations under ~~any Loan Document~~ this Agreement or any other instrument or document furnished pursuant ~~thereto~~hereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 4.01 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) such assignee will, independently and without reliance upon ~~any~~ the Agent, such assigning Lender or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) such assignee confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes ~~each~~ the Agent to take such action as agent on its behalf and to exercise such powers and discretion under ~~the Loan Documents~~ this Agreement as are delegated to ~~such~~ the Agent by the terms ~~hereof and thereof~~hereof, together with such powers and discretion as are reasonably incidental thereto; and (vii) such assignee agrees that it will perform in accordance with their terms all of the obligations that by the terms of this Agreement are required to be performed by it as a Lender. (d) The Administrative Agent acting for this purpose (but only for this purpose) as the agent of the Borrowers, shall maintain at its address referred to in Section 8.02 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 Lenders and the Term Loan Commitment of, and principal amount of the Term Loan Advances 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 Borrowers, the Agents and the Lenders shall treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrowers or any Agent or any Lender at any reasonable time and from time to time upon reasonable prior notice. (e) Notwithstanding anything to the contrary contained in clause (b) above, the Term Loan Advances (including the Notes evidencing such Term Loan Advances) are registered obligations and the right, title, and interest of the Lenders and their assignees in and to such Term Loan Advances shall be transferable only upon notation of such transfer in the Register. A Note shall only evidence the Lender’s or an assignee’s right title and interest in and to the related Term Loan Advance, and in no event is any such Note to be considered a bearer instrument or obligation. This Section 8.07 shall be construed so that the Term Loan Advances are at all times maintained in “registered form” within the meaning of sections 163(f), 871(h)(2) and 881(c)(2) of the Internal Revenue Code and any related regulations (or any successor provisions of the Internal Revenue Code or such regulations). Solely for purposes of this and for tax purposes only, the Administrative Agent shall act as each Borrower’s agent for purposes of maintaining such notations of transfer in the Register. (fc) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an ~~assignee~~assignee representing that it is an Eligible Assignee, together with any Revolving Credit Note or Notes subject to such assignment, the ~~Administrative~~ Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit C hereto, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to ~~BMCA~~ the Company and to each other Borrower. (d) The Agent shall maintain at its address referred to in Section 9.02 a copy of each Assumption Agreement and each other Agent. In the case of any assignment by a Lender, within five Business Days after its receipt of such notice, the Borrowers, at their own expense, shall, if requested by the assignee, execute and deliver to the Administrative Agent in exchange for the surrendered Note or Notes an amended and restated Note (which shall be marked “Amended and Restated”) to the order of such Eligible Assignee in an amount equal to the Term Loan Commitment assumed by it under each Facility pursuant to such Assignment and Acceptance ~~and, if any assigning Lender has retained a Term Loan Commitment hereunder under such Facility~~ delivered to and ~~has requested a replacement Note, an amended and restated Note to the order of such assigning Lender in an amount equal to the Term Loan Commitment retained~~ accepted by it ~~hereunder. Such amended~~ and ~~restated Note or Notes shall be in an aggregate principal amount equal to~~ a register for the ~~aggregate~~ recordation of the names and addresses of the Lenders and the Commitment of, and principal amount of ~~such surrendered Note or Notes~~the Advances owing to, each Lender from time to time (the “Register”). In addition, the Agent shall maintain on the Register information regarding the designation and revocation of designation of any Lender as a Defaulting Lender. The entries in the Register shall be ~~dated~~ conclusive and binding for all purposes, absent manifest error, and the ~~effective date~~ Company, each other Borrower, the Agent and the Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of ~~such Assignment~~ this Agreement. The Register shall be available for inspection by the Company, any other Borrower or any Lender at any reasonable time and ~~Acceptance and shall otherwise be in substantially the form of Exhibit A hereto~~from time to time upon reasonable prior notice. (ge) Each Lender may sell participations to one or more ~~Persons~~ banks or other entities (other than ~~any Loan Party~~ the Company or any of its Affiliates) in or to all or a portion of its rights and obligations under this Agreement (~~including~~ including, without limitation, all or a portion of its ~~Term Loan Commitments~~Commitment, the ~~Term Loan~~ Advances owing to it and ~~the~~ any Note or Notes ~~(if any)~~ held by it); provided, however, that (i) such Lender’s obligations under this Agreement (~~including~~ including, without limitation, its ~~Term Loan Commitments~~Commitment to the Company and the other Borrowers hereunder) shall remain unchanged, (ii) 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, (iv) the ~~Borrowers~~Company, any other Borrower, the ~~Agents~~ Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this ~~Agreement and~~ Agreement, (v) no participant under any such participation shall have any right to approve any amendment or waiver of any provision of this Agreement or any ~~Loan Document~~Note, or any consent to any departure by any ~~Loan Party~~ Borrower therefrom, except to the extent that such amendment, waiver or consent ~~requires~~ would reduce the ~~consent~~ principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, or postpone any date fixed for any payment of ~~all Lenders~~principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation and (vi) within 30 days of the effective date of such participation, such Lender shall provide notice of such participation to the Company. (hf) Any Lender may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section ~~8.07~~9.06, disclose to the assignee or participant or proposed assignee or ~~participant~~ participant, any information relating to the ~~Borrowers~~ Company or any Borrower furnished to such Lender by or on behalf of ~~the Borrowers~~such Borrower; ~~provided, however,~~ 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~~ confidential information relating to such Borrower received by it from such ~~Lender in accordance with the terms of Section 8.09~~Lender. (ig) Notwithstanding any other provision set forth in this Agreement, any Lender may at any time assign or create a security interest in all or any portion of its rights under this Agreement (~~including~~ including, without limitation, the ~~Term Loan~~ Advances owing to it and ~~the~~ any Note or Notes held by it) ), including in favor of any Federal Reserve Bank in accordance with Regulation A of the Board of Governors of the Federal Reserve System. (j) Notwithstanding anything to the contrary contained herein, any Lender that is a fund that invests in bank loans may create a security interest in all or any portion of the Term Loan Advances owing to it and the Note or Notes held by it to the trustee for holders of obligations owed, or securities issued, by such fund as security for such obligations or securities, provided, that unless and until such trustee actually becomes a Lender in compliance with the other provisions of this Section 8.07, (i) no such pledge shall release the pledging Lender from any of its obligations under the Loan Documents and (ii) such trustee shall not be entitled to exercise any of the rights of a Lender under the Loan Documents even though such trustee may have acquired ownership rights with respect to the pledged interest through foreclosure or otherwise. (k) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Lender”) may grant to a special purpose funding vehicle identified as such in writing from time to time by the Granting Lender to the Administrative Agent and BMCA (an “SPC”) the option to provide all or any part of any Term Loan Advance that such Granting Lender would otherwise be obligated to make pursuant to this Agreement, provided that (i) nothing herein shall constitute a commitment by any SPC to fund any Term Loan Advance, and (ii) if an SPC elects not to exercise such option or otherwise fails to make all or any part of such Term Loan Advance, the Granting Lender shall be obligated to make such Term Loan Advance pursuant to the terms hereof. The making of an Advance by an SPC hereunder shall utilize the Term Loan Commitment of the Granting Lender to the same extent, and as if, such Term Loan Advance were made by such Granting Lender. Each party hereto hereby agrees that (i) no SPC shall be liable for any indemnity or similar payment obligation under this Agreement for which a Lender would be liable, (ii) no SPC shall be entitled to the benefits of Sections 2.09 and 2.11 (or any other increased costs protection provision) and (iii) the Granting Bank shall for all purposes, including the approval of any amendment or waiver of any provision of any Loan Document, remain the Lender of record hereunder. In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior Debt of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency, or liquidation proceeding under the laws of the United States or any State thereof. Notwithstanding anything to the contrary contained in this Agreement, any SPC may (i) with notice to, but without prior consent of, BMCA and the Administrative Agent and with the payment of a processing fee of $500 and without paying any processing fee therefor, assign all or any portion of its interest in any Term Loan Advance to the Granting Lender and (ii) disclose on a confidential basis any non-public information relating to its funding of Term Loan Advance to any rating agency, commercial paper dealer or provider of any surety or guarantee or credit or liquidity enhancement to such SPC. This subsection (k) may not be amended without the prior written consent of each Granting Lender, all or any part of whose Term Loan Advances are being funded by the SPC at the time of such amendment.

Appears in 1 contract

Samples: Credit Agreement (Honeywell International Inc)

Assignments and Participations. (a) Each Lender may, ~~upon at least five Business Days’ notice to such Lender and~~ with the consent of the Administrative Agent, and, so long as no Event of Default has occurred and is continuing, with the consent of the Appropriate Borrower (in each case, such consent not to be unreasonably withheld or delayed), assign to one or more Eligible Assignees all or a portion of its rights and obligations under this Agreement (~~including~~ including, without limitation, all or a portion of its ~~Term Loan Commitment~~obligation to make or purchase U.S. Letter of Credit Advances, the ~~Term Loan~~ Advances owing to it and the Lender Note or Lender Notes held by it); provided, however, that no consent by either Borrower or the Administrative Agent shall be required for an assignment to any Person who is an Affiliate or a Related Fund of such Lender, and provided further that (i) each such assignment shall be of a uniform, and not a varying, percentage of all rights and obligations under ~~this Agreement~~and in respect of one or more Facilities, (ii) except in the case of an assignment to a Person that, immediately prior to such assignment, was a Lender, an Affiliate of any Lender or ~~an Approved~~ a Related Fund of any Lender or an assignment which will result in a group of Lenders which are managed by the same Person holding an obligation to make or purchase U.S. Letter of Credit Advances or an Advance (as the case may be) of not less than $1,000,000 or an assignment of all of a Lender’s rights and obligations under this Agreement, the ~~aggregate~~ amount of the ~~Term Loan Commitments~~ obligation to make or ~~Term Loan~~ purchase U.S. Letter of Credit Advances or the Advances (as the case may be) of the assigning Lender being assigned ~~to such Eligible Assignee~~ pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $~~5,000,000~~ 1,000,000 (or ~~such lesser amount as shall be approved by the Administrative Agent and, so long as no Default shall have occurred and be continuing at the time~~ integral multiples of ~~effectiveness of such assignment, BMCA~~$200,000 in excess thereof), (iii) each such assignment shall be to an Eligible Assignee, and (iv) except in the case of an assignment by a Person that, immediately prior to such assignment, was a Lender, to one of its Affiliates, no such assignments shall be permitted without the consent of the Administrative Agent and, so long as no Default shall have occurred and be continuing at the time of effectiveness of such assignment, BMCA (in each case, which consents shall not be unreasonably withheld) and (v) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together with any Lender Note or Lender Notes subject to such assignment ~~and~~ and, other than in the case of an assignment to an Affiliate of such Lender, a processing and recordation fee of $3,500, provided that only one such fee shall be payable in connection with simultaneous assignments by or to two or more Related Funds. (b) Upon such execution, delivery, acceptance and recording, from and after the effective date specified in such Assignment and Acceptance, (ix) the assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, have the rights and obligations of a Lender or Issuing Bank, as the case may be, hereunder and (iiy) the Lender or Issuing Bank assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights ~~(other than its rights under Sections 2.09, 2.11 and 8.04 to the extent any claim thereunder relates to an event arising prior to such assignment)~~ and be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all of or the remaining portion of an assigning Lender’s or Issuing Bank’s rights and obligations under this Agreement, such Lender or Issuing Bank shall cease to be a party ~~hereto~~hereto but shall continue to be entitled to the benefits of Sections 2.07, 2.09 and 9.04). (c) By executing and delivering an Assignment and Acceptance, ~~each~~ the Lender Party assignor thereunder and ~~each~~ the assignee thereunder confirm to and agree with each other and the other parties ~~thereto and~~ hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender Party makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or any other Loan Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value of, or the perfection or priority of any lien or security interest created or purported to be created under or in connection with, this Agreement or any other Loan Document or any other instrument or document furnished pursuant hereto or thereto; (ii) such assigning Lender Party makes no representation or warranty and assumes no responsibility with respect to the financial condition of either Borrower or any other Loan Party or the performance or observance by any Loan Party of any of its obligations under any Loan Document or any other instrument or document furnished pursuant thereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 4.01 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) such assignee will, independently and without reliance upon ~~any~~ the Administrative Agent, such assigning Lender Party or any other Lender Party and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) such assignee confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes ~~each~~ the Administrative Agent to take such action as agent on its behalf and to exercise such powers and discretion under the Loan Documents as are delegated to ~~such~~ the Administrative Agent by the terms ~~hereof and thereof~~hereof, together with such powers and discretion as are reasonably incidental thereto; and (vii) such assignee agrees that it will perform in accordance with their terms all of the obligations ~~that~~ which by the terms of this Agreement are required to be performed by it as a ~~Lender~~Lender or Issuing Bank, as the case may be. (d) The Administrative ~~Agent~~ Agent, acting for this purpose (but only for this purpose) as the agent of the Borrowers, shall maintain at its address referred to in Section ~~8.02~~ 9.02 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 ~~Lenders~~ Lender Parties and the ~~Term Loan Commitment of, and~~ principal amount of the ~~Term Loan~~ Advances ~~to,~~ owing under each Facility to each Lender Party from time to time (the “Register”). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrowers, the ~~Agents~~ Administrative Agent and the ~~Lenders~~ Lender Parties shall treat each Person whose name is recorded in the Register as a Lender Party hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrowers or any ~~Agent or any~~ Lender Party at any reasonable time and from time to time upon reasonable prior notice. (e) Notwithstanding anything to the contrary contained in clause (b) above, the Term Loan Advances (including the Notes evidencing such Term Loan Advances) are registered obligations and the right, title, and interest of the Lenders and their assignees in and to such Term Loan Advances shall be transferable only upon notation of such transfer in the Register. A Note shall only evidence the Lender’s or an assignee’s right title and interest in and to the related Term Loan Advance, and in no event is any such Note to be considered a bearer instrument or obligation. This Section 8.07 shall be construed so that the Term Loan Advances are at all times maintained in “registered form” within the meaning of sections 163(f), 871(h)(2) and 881(c)(2) of the Internal Revenue Code and any related regulations (or any successor provisions of the Internal Revenue Code or such regulations). Solely for purposes of this and for tax purposes only, the Administrative Agent shall act as each Borrower’s agent for purposes of maintaining such notations of transfer in the Register. (f) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender Party and an assignee, together with any Lender Note or Lender Notes subject to such assignment, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit C B hereto, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to ~~BMCA and each other Agent~~the Appropriate Borrower. In the case of any assignment by a Lender, within five Business Days after its receipt of such notice, the ~~Borrowers~~Appropriate Borrower, at ~~their~~ its own expense, ~~shall, if requested by the assignee,~~ shall execute and deliver to the Administrative Agent in exchange for the surrendered Lender Note or Lender Notes ~~an amended and restated~~ a new Lender Note ~~(which shall be marked “Amended and Restated”)~~ to the order of such Eligible Assignee in an amount equal to the ~~Term Loan Commitment~~ Advances or obligation to make or purchase U.S. Letter of Credit Advances assumed by it under ~~each~~ a Facility pursuant to such Assignment and Acceptance and, if ~~any~~ the assigning Lender has retained ~~a Term Loan Commitment~~ any Advances or obligation to make or purchase U.S. Letter of Credit Advances hereunder under such ~~Facility and has requested~~ Facility, a ~~replacement Note, an amended and restated~~ new Lender Note to the order of ~~such~~ the assigning Lender in an amount equal to the ~~Term Loan Commitment~~ Advances or obligation to make or purchase U.S. Letter of Credit Advances retained by it hereunder. Such ~~amended and restated~~ new Lender Note or Lender Notes shall be in an aggregate principal amount equal to the aggregate principal amount of such surrendered Lender Note or Lender Notes, shall be dated the effective date of such Assignment and Acceptance and shall otherwise be in substantially the form of Exhibit A A-1 or A-2 hereto, as the case may be. (f) The Issuing Bank may, with the consent of the Administrative Agent, and, so long as no Event of Default shall have occurred and be continuing, with the consent of the U.S. Borrower (such consent not to be unreasonably withheld), assign to an Eligible Assignee all of its rights and obligations under this Agreement with respect to the Letters of Credit; provided, however, that (i) each such assignment shall be to an Eligible Assignee and (ii) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together with a processing and recordation fee of $3,500. (g) Each Lender Party may sell participations to one or more Persons (other than any Loan Party or any of its Affiliates) in or to all or a portion of its rights and obligations under this Agreement (~~including~~ including, without limitation, all or a portion of its ~~Term Loan Commitments,~~ obligation to make or purchase U.S. Letter of Credit Advances or the ~~Term Loan~~ Advances owing to it and the Lender Note or Lender Notes (if any) held by it); provided, however, that (i) such ~~Lender~~Lender Party’s rights and obligations under this Agreement (including its ~~Term Loan Commitments~~obligation to make or purchase U.S. Letter of Credit Advances) shall remain unchanged, (ii) such Lender Party shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) such Lender Party shall remain the holder of any such Lender Note for all purposes of this Agreement, (iv) the Borrowers, the ~~Agents~~ Administrative Agent and the other ~~Lenders~~ Lender Parties shall continue to deal solely and directly with such Lender Party in connection with such ~~Lender~~Lender Party’s rights and obligations under this ~~Agreement and~~ Agreement, (v) no participant under any such participation shall have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent ~~requires~~ would reduce the ~~consent~~ principal of, or interest (other than increased interest following Default pursuant to Section 2.04(b)) on, the Lender Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, postpone any Termination Date or date fixed for payment of ~~all Lenders~~interest on, the Lender Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, or release the U.S. Borrower from its Obligations under Article VI hereof, and (vi) neither Borrower shall be subject to any increased liability to any Lender Party pursuant to this Agreement by virtue of such participation. (h) Any Lender Party may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section ~~8.07~~9.07, disclose to the assignee or participant or proposed assignee or ~~participant~~ participant, any information relating to the Borrowers furnished to such Lender Party by or on behalf of the Borrowers; provided, however, 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 received by it from such Lender ~~in accordance with the terms of Section 8.09~~Party. (i) Notwithstanding any other provision set forth in this Agreement, any Lender Party may at any time create a security interest in all or any portion of its rights under this Agreement (~~including~~ including, without limitation, the ~~Term Loan~~ Advances owing to it and the Lender Note or Lender 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 System. (j) Notwithstanding anything to the contrary contained herein, any Lender that is a fund that invests in bank loans may create a security interest in all or any portion of the ~~Term Loan~~ Advances owing to it and the Lender Note or Lender Notes held by it to the trustee or other representative for holders of obligations owed, or securities issued, by such fund as security for such obligations or securities, ~~provided~~provided that, ~~that~~ unless and until such trustee or other representative actually becomes a Lender in compliance with the other provisions of this Section ~~8.07~~9.07, (i) no such pledge shall release the pledging Lender from any of its obligations under the Loan Documents and (ii) such trustee or representative shall not be entitled to exercise any of the rights of a Lender under the Loan Documents even though such trustee or representative may have acquired ownership rights with respect to the pledged interest through foreclosure or otherwise. (k) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Lender”) may grant to a special purpose funding vehicle identified as such in writing from time to time by the Granting Lender to the Administrative Agent and BMCA (an “SPC”) the option to provide all or any part of any Term Loan Advance that such Granting Lender would otherwise be obligated to make pursuant to this Agreement, provided that (i) nothing herein shall constitute a commitment by any SPC to fund any Term Loan Advance, and (ii) if an SPC elects not to exercise such option or otherwise fails to make all or any part of such Term Loan Advance, the Granting Lender shall be obligated to make such Term Loan Advance pursuant to the terms hereof. The making of an Advance by an SPC hereunder shall utilize the Term Loan Commitment of the Granting Lender to the same extent, and as if, such Term Loan Advance were made by such Granting Lender. Each party hereto hereby agrees that (i) no SPC shall be liable for any indemnity or similar payment obligation under this Agreement for which a Lender would be liable, (ii) no SPC shall be entitled to the benefits of Sections 2.09 and 2.11 (or any other increased costs protection provision) and (iii) the Granting Bank shall for all purposes, including the approval of any amendment or waiver of any provision of any Loan Document, remain the Lender of record hereunder. In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior Debt of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency, or liquidation proceeding under the laws of the United States or any State thereof. Notwithstanding anything to the contrary contained in this Agreement, any SPC may (i) with notice to, but without prior consent of, BMCA and the Administrative Agent and with the payment of a processing fee of $500 and without paying any processing fee therefor, assign all or any portion of its interest in any Term Loan Advance to the Granting Lender and (ii) disclose on a confidential basis any non-public information relating to its funding of Term Loan Advance to any rating agency, commercial paper dealer or provider of any surety or guarantee or credit or liquidity enhancement to such SPC. This subsection (k) may not be amended without the prior written consent of each Granting Lender, all or any part of whose Term Loan Advances are being funded by the SPC at the time of such amendment.

Appears in 1 contract

Samples: Credit Agreement (Accuride Corp)

Assignments and Participations. (a) Each Lender may, upon at least five Business Days’ ' notice to such Lender and the Administrative Agent, assign to one or more Eligible Assignees all or a portion of its rights and obligations under this Agreement (~~including~~ including, without limitation, all or a portion of its ~~Term Loan Commitment~~Commitment or Commitments, the ~~Term Loan~~ Advances owing to it and the Note or Notes held by it); provided, however, that (i) each such assignment shall be of a uniform, and not a varying, percentage of all rights and obligations under ~~this Agreement~~and in respect of any or all of the Facilities, (ii) except in the case of an assignment to a Person that, immediately prior to such assignment, was a Lender, an Affiliate of any Lender or an Approved Fund of any Lender or an assignment of all of a Lender’s 's rights and obligations under this Agreement, the aggregate amount of the ~~Term Loan~~ Commitments ~~or Term Loan Advances~~ being assigned to such Eligible Assignee pursuant to 116 such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $5,000,000 (or such lesser amount as shall be approved by the Administrative Agent and, so long as no Default shall have occurred and be continuing at the time of effectiveness of such assignment, ~~BMCA~~the Borrower), (iii) each such assignment shall be to an Eligible Assignee, (iv) except in the case of an assignment by a Person that, immediately prior to such assignment, was a Lender, to one of its Affiliates, no such assignments shall be permitted without the consent of the Administrative Agent and, so long as no Default shall have occurred and be continuing at the time of effectiveness of such assignment, ~~BMCA~~ the Borrower (in each case, which consents shall not be unreasonably withheld) and (v) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together with any Note or Notes subject to such assignment and a processing and recordation fee of $3,500. (b) Upon such execution, delivery, acceptance and recording, from and after the effective date specified in such 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, have the rights and obligations of a Lender or Issuing Bank, as the case may be, hereunder and (ii) the Lender or Issuing Bank assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (other than its rights under Sections ~~2.09~~2.10, ~~2.11~~ 2.12 and 8.04 to the extent any claim thereunder relates to an event arising prior to such assignment) and be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all of the remaining portion of an assigning Lender’s 's or Issuing Bank's rights and obligations under this Agreement, such Lender or Issuing Bank shall cease to be a party hereto). (c) By executing and delivering an Assignment and Acceptance, each Lender Party assignor thereunder and each assignee thereunder confirm to and agree with each other and the other parties thereto and hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender Party makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with any Loan Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value of, or the perfection or priority of any lien or security interest created or purported to be created under or in connection with, any Loan Document or any other instrument or document furnished pursuant thereto; (ii) such assigning Lender Party makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party or the performance or observance by any Loan Party of any of its obligations under any Loan Document or any other instrument or document furnished pursuant thereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 4.01 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) such assignee will, independently and without reliance upon any Agent, such assigning Lender Party or any other Lender Party and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) such assignee confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes each Agent to take such action as agent on its behalf and to exercise such powers and discretion under the Loan Documents as are delegated to such Agent by the terms hereof and thereof, together with such powers and discretion as are reasonably incidental thereto; and (vii) such assignee agrees that it will perform in accordance with their terms all of the obligations that by the terms of this Agreement are required to be performed by it as a ~~Lender~~Lender or Issuing Bank, as the case may be. (d) The Administrative Agent acting for this purpose (but only for this purpose) as the agent of the ~~Borrowers~~Borrower, shall maintain at its address referred to in Section 8.02 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 ~~Lenders~~ Lender Parties and the ~~Term Loan~~ Commitment under each Facility of, and principal amount of the ~~Term Loan~~ Advances owing under each Facility to, each Lender Party from time to time (the ~~“Register”~~"REGISTER"). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the ~~Borrowers~~Borrower, the Agents and the ~~Lenders~~ Lender Parties shall treat each Person whose name is recorded in the Register as a Lender Party hereunder for all purposes of this Agreement. The Register shall be available for inspection by the ~~Borrowers~~ Borrower or any Agent or any Lender Party at any reasonable time and from time to time upon reasonable prior notice. (e) Notwithstanding anything to the contrary contained in clause (b) above, the ~~Term Loan~~ Advances (including the Notes evidencing such ~~Term Loan~~ Advances) are registered obligations and the right, title, and interest of the ~~Lenders~~ Lender Parties and their assignees in and to such ~~Term Loan~~ Advances shall be transferable only upon notation of such transfer in the Register. A Note shall only evidence the ~~Lender’s~~ Lender Party's or an assignee’s 's right title and interest in and to the related ~~Term Loan~~ Advance, and in no event is any such Note to be considered a bearer instrument or obligation. This Section 8.07 shall be construed so that the ~~Term Loan~~ Advances are at all times maintained in “"registered form” " within the meaning of sections 163(f), 871(h)(2) and 881(c)(2) of the Internal Revenue Code and any related regulations (or any successor provisions of the Internal Revenue Code or such regulations). Solely for purposes of this and for tax purposes only, the Administrative Agent shall act as ~~each~~ the Borrower’s 's agent for purposes of maintaining such notations of transfer in the Register. (f) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender Party and an assignee, together with any Note or Notes subject to such assignment, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit C hereto, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to ~~BMCA~~ the Borrower and each other Agent. In the case of any assignment by a Lender, within five Business Days after its receipt of such notice, the ~~Borrowers~~Borrower, at ~~their~~ its own expense, shall, if requested by the assignee, execute and deliver to the Administrative Agent in exchange for the surrendered Note or Notes an amended and restated Note (which shall be marked “"Amended and Restated”") to the order of such Eligible Assignee in an amount equal to the ~~Term Loan~~ Commitment assumed by it under each Facility pursuant to such Assignment and Acceptance and, if any assigning Lender has retained a ~~Term Loan~~ Commitment hereunder under such Facility and ~~has~~ has requested a replacement Note, an amended and restated Note to the order of such assigning Lender in an amount equal to the ~~Term Loan~~ Commitment retained by it hereunder. Such amended and restated 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 Assignment and Acceptance and shall otherwise be in substantially the form of Exhibit A hereto. (g) The Issuing Bank may assign to an Eligible Assignee all of its rights and obligations under the undrawn portion of its Letter of Credit Commitment at any time; provided, however, that (i) each such assignment shall be to an Eligible Assignee and (ii) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together with a processing and recordation fee of $3,500. (h) Each Lender Party may sell participations to one or more Persons (other than any Loan Party or any of its Affiliates) in or to all or a portion of its rights and obligations under this Agreement (~~including~~ including, without limitation, all or a portion of its ~~Term Loan~~ Commitments, the ~~Term Loan~~ Advances owing to it and the Note or Notes (if any) held by it); provided, however, that (i) such ~~Lender’s~~ Lender Party's obligations under this Agreement (~~including~~ including, without limitation, its ~~Term Loan~~ Commitments) shall remain unchanged, (ii) such Lender Party shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) such Lender Party shall remain the holder of any such Note for all purposes of this Agreement, (iv) the ~~Borrowers~~Borrower, the Agents and the other ~~Lenders~~ Lender Parties shall continue to deal solely and directly with such Lender Party in connection with such ~~Lender’s~~ Lender Party's rights and obligations under this Agreement and (v) no participant under any such participation shall have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent requires the consent of all ~~Lenders~~Lender Parties. (hi) Any Lender Party may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section 8.07, disclose to the assignee or participant or proposed assignee or participant any information relating to the ~~Borrowers~~ Borrower furnished to such Lender Party by or on behalf of the ~~Borrowers~~Borrower; provided, however, 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 received by it from such Lender Party in accordance with the terms of Section ~~8.09~~8.10. (ij) Notwithstanding any other provision set forth in this Agreement, any Lender Party may at any time create a security interest in all or any portion of its rights under this Agreement (~~including~~ including, without limitation, the ~~Term Loan~~ 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 System. (jk) Notwithstanding anything to the contrary contained herein, any Lender that is a fund that invests in bank loans may create a security interest in all or any portion of the ~~Term Loan~~ Advances owing to it and the Note or Notes held by it to the trustee for holders of obligations owed, or securities issued, by such fund as security for such obligations or securities, provided, that unless and until such trustee actually becomes a Lender in compliance with the other provisions of this Section 8.07, (i) no such pledge shall release the pledging Lender from any of its obligations under the Loan Documents and (ii) such trustee shall not be entitled to exercise any of the rights of a Lender under the Loan Documents even though such trustee may have acquired ownership rights with respect to the pledged interest through foreclosure or otherwise.. 119 (kl) Notwithstanding anything to the contrary contained herein, any Lender Party (a ~~“Granting Lender”~~"GRANTING LENDER") may grant to a special purpose funding vehicle identified as such in writing from time to time by the Granting Lender to the Administrative Agent and ~~BMCA~~ the Borrower (an “"SPC”") the option to provide all or any part of any ~~Term Loan~~ Advance that such Granting Lender would otherwise be obligated to make pursuant to this Agreement, provided that (i) nothing herein shall constitute a commitment by any SPC to fund any ~~Term Loan~~ Advance, and (ii) if an SPC elects not to exercise such option or otherwise fails to make all or any part of such ~~Term Loan~~ Advance, the Granting Lender shall be obligated to make such ~~Term Loan~~ Advance pursuant to the terms hereof. The making of an Advance by an SPC hereunder shall utilize the ~~Term Loan~~ Commitment of the Granting Lender to the same extent, and as if, such ~~Term Loan~~ Advance were made by such Granting Lender. Each party hereto hereby agrees that (i) no SPC shall be liable for any indemnity or similar payment obligation under this Agreement for which a Lender Party would be liable, (ii) no SPC shall be entitled to the benefits of Sections ~~2.09~~ 2.10 and ~~2.11~~ 2.12 (or any other increased costs protection provision) and (iii) the Granting Bank shall for all purposes, ~~including~~ including, without limitation, the approval of any amendment or waiver of any provision of any Loan Document, remain the Lender Party of record hereunder. In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior Debt of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency, or liquidation proceeding under the laws of the United States or any State thereof. Notwithstanding anything to the contrary contained in this Agreement, any SPC may (i) with notice to, but without prior consent of, ~~BMCA~~ the Borrower and the Administrative Agent and with the payment of a processing fee of $500 and without paying any processing fee therefor, assign all or any portion of its interest in any ~~Term Loan~~ Advance to the Granting Lender and (ii) disclose on a confidential basis any non-public information relating to its funding of ~~Term Loan Advance~~ Advances to any rating agency, commercial paper dealer or provider of any surety or guarantee or credit or liquidity enhancement to such SPC. This subsection (k) may not be amended without the prior written consent of each Granting Lender, all or any part of whose ~~Term Loan~~ Advances are being funded by the SPC at the time of such amendment.

Appears in 1 contract

Samples: Credit Agreement (Building Materials Manufacturing Corp)

Assignments and Participations. (a) Each Lender ~~may, upon at least five Business Days’ notice to such Lender and the Administrative Agent,~~ may assign to one or more Eligible Assignees all or a portion of its rights and obligations under this Agreement (~~including~~ including, without limitation, all or a portion of its ~~Term Loan Commitment~~Commitment or Commitments, the ~~Term Loan~~ Advances owing to it and the Note or Notes held by it); provided, however, that (i) ~~each such assignment shall be of a uniform, and not a varying, percentage of all rights and obligations under this Agreement, (ii)~~ except in the case of an assignment to a Person that, immediately prior to such assignment, was a ~~Lender, an Affiliate of any Lender or an Approved Fund of any~~ Lender or an assignment of all of a Lender’s 's rights and obligations under this Agreement, the ~~aggregate~~ amount of the ~~Term Loan Commitments or Term Loan Advances~~ Commitment of the assigning Lender being assigned ~~to such Eligible Assignee~~ pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $5,000,000 (or such lesser amount as shall be approved by the Administrative Agent and, so long as no Default shall have occurred and be continuing at the time of effectiveness of such assignment, BMCA), (iii) each such assignment shall be to an Eligible Assignee, (iv) except $2,500,000 in the case of an assignment by a ~~Person that~~Lender to an Affiliate of such Lender), ~~immediately prior to such assignment, was a Lender, to one of its Affiliates,~~ (ii) no such assignments shall be permitted without the prior consent of the Administrative Agent ~~and, so long as no Default~~ (which may be withheld for any reason) until the Administrative Agent shall have ~~occurred~~ notified the Lender Parties that syndication of the Commitments hereunder has been completed, but in any event not later than 90 days following the Closing Date, (iii) no such assignment shall be permitted if, immediately after giving effect thereto, the Borrower would be required to make payments to or on behalf of the assignee Lender Party pursuant to Section 2.10(a) or (b) or 2.12 and ~~be continuing~~ the assignor Lender Party was not, at the time of ~~effectiveness of~~ such assignment, ~~BMCA~~ entitled to receive any payment pursuant to Section 2.10(a) or (~~in each case~~b) or 2.12, ~~which consents shall not be unreasonably withheld)~~ and (viv) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together with any Note or Notes subject to such assignment and a processing and recordation fee of $~~3,500~~3,500 (other that with respect to an assignment to a Lender's Affiliate, in which event such fee shall be $1,500). (b) Upon such execution, delivery, acceptance and recording, from and after the effective date specified in such Assignment and Acceptance, (ix) the assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, have the rights and obligations of a Lender or Issuing Bank, as the case may be, hereunder and (iiy) the Lender or Issuing Bank assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights ~~(other than its rights under Sections 2.09, 2.11 and 8.04 to the extent any claim thereunder relates to an event arising prior to such assignment)~~ and be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all of or the remaining portion of an assigning Lender’s 's or Issuing Bank's rights and obligations under this Agreement, such Lender or Issuing Bank shall cease to be a party hereto).. 132 125 (c) By executing and delivering an Assignment and Acceptance, ~~each~~ the Lender Party assignor thereunder and ~~each~~ the assignee thereunder confirm to and agree with each other and the other parties ~~thereto and~~ hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender Party makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or any other Loan Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value of, or the perfection or priority of any lien or security interest created or purported to be created under or in connection with, this Agreement or any other Loan Document or any other instrument or document furnished pursuant hereto or thereto; (ii) such assigning Lender Party makes no representation or warranty and assumes no responsibility with respect to the financial condition of the Borrower or any other Loan Party or the performance or observance by any Loan Party of any of its obligations under any Loan Document or any other instrument or document furnished pursuant thereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section ~~4.01~~ 4.6 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) such assignee will, independently and without reliance upon ~~any~~ the Administrative Agent, such assigning Lender Party or any other Lender Party and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) such assignee confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes ~~each~~ the Administrative Agent to take such action as agent on its behalf and to exercise such powers and discretion under this Agreement and the other Loan Documents as are delegated to ~~such~~ the Administrative Agent by the terms hereof and thereof, together with such powers and discretion as are reasonably incidental thereto; and (vii) such assignee agrees that it will perform in accordance with their terms all of the obligations ~~that~~ which by the terms of this Agreement are required to be performed by it as a ~~Lender~~Lender or Issuing Bank, as the case may be. (d) The Administrative Agent ~~acting for this purpose (but only for this purpose) as the agent of the Borrowers,~~ shall maintain at its address referred to in Section ~~8.02~~ 11.2 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~~ Lender Parties and the ~~Term Loan~~ Commitment under each Facility of, and principal amount of the ~~Term Loan~~ Advances owing under each Facility to, each Lender Party from time to time (the “"Register”"). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the ~~Borrowers~~Borrower, the ~~Agents~~ Administrative Agent and the ~~Lenders shall~~ Lender Parties may treat each Person whose name is recorded in the Register as a Lender Party hereunder for all purposes of this Agreement. The Register shall be available for inspection by the ~~Borrowers or any Agent~~ Borrower or any Lender Party at any reasonable time and from time to time upon reasonable prior notice. (e) Notwithstanding anything to the contrary contained in clause (b) above, the Term Loan Advances (including the Notes evidencing such Term Loan Advances) are registered obligations and the right, title, and interest of the Lenders and their assignees in and to such Term Loan Advances shall be transferable only upon notation of such transfer in the Register. A Note shall only evidence the Lender’s or an assignee’s right title and interest in and to the related Term Loan Advance, and in no event is any such Note to be considered a bearer instrument or obligation. This Section 8.07 shall be construed so that the Term Loan Advances are at all times maintained in “registered form” within the meaning of sections 163(f), 871(h)(2) and 881(c)(2) of the Internal Revenue Code and any related regulations (or any successor provisions of the Internal Revenue Code or such regulations). Solely for purposes of this and for tax purposes only, the Administrative Agent shall act as each Borrower’s agent for purposes of maintaining such notations of transfer in the Register. (f) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender Party and an assignee, together with any Note or Notes subject to such ~~assignment~~assignment and the appropriate processing and reconciliation fee, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit C A hereto, (i) accept 133 126 such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to ~~BMCA and each other Agent~~the Borrower. In the case of any assignment by a Lender, within ~~five~~ ten (10) Business Days after its receipt of such ~~notice~~notice and the return of the old Notes (or a customary indemnity with respect to any lost Notes), the ~~Borrowers~~Borrower, at ~~their~~ its own expense, ~~shall, if requested by the assignee,~~ shall execute and deliver to the Administrative Agent in exchange for the surrendered Note or Notes ~~an amended and restated~~ a new Note ~~(which shall be marked “Amended and Restated”)~~ to the order of such Eligible Assignee in an amount equal to the ~~Term Loan~~ Commitment assumed by it under ~~each~~ a Facility pursuant to such Assignment and Acceptance and, if ~~any~~ the assigning Lender has retained a ~~Term Loan~~ Commitment hereunder under such ~~Facility and has requested~~ Facility, a ~~replacement Note, an amended and restated~~ new Note to the order of ~~such~~ the assigning Lender in an amount equal to the ~~Term Loan~~ Commitment retained by it hereunder. Such ~~amended and restated~~ 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 Assignment and Acceptance and shall otherwise be in substantially the form of Exhibit A B, C or D hereto, as the case may be. (f) Each Issuing Bank may assign to an Eligible Assignee all of its rights and obligations under the undrawn portion of its Letter of Credit Commitment at any time; provided, however, that (i) each such assignment shall be to an Eligible Assignee and (ii) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together with a processing and recordation fee of $3,500. (g) Each Lender Party may sell participations to one or more Persons (other than any Loan Party or any of its Affiliates) in or to all or a portion of its rights and obligations under this Agreement (~~including~~ including, without limitation, all or a portion of its ~~Term Loan~~ Commitments, the ~~Term Loan~~ Advances owing to it and the Note or ~~Notes (~~Notes, if any) , held by it); provided, however, that (i) such ~~Lender’s~~ Lender Party's obligations under this Agreement (~~including~~ including, without limitation, its ~~Term Loan~~ Commitments) shall remain unchanged, (ii) such Lender Party shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) such Lender Party shall remain the holder of any such Note for all purposes of this Agreement, (iv) the ~~Borrowers~~Borrower, the ~~Agents~~ Administrative Agent and the other ~~Lenders~~ Lender Parties shall continue to deal solely and directly with such Lender Party in connection with such ~~Lender’s~~ Lender Party's rights and obligations under this Agreement and (v) no participant under any such participation shall have any right to approve any ~~amendment~~ amendment, waiver or ~~waiver~~ other modification of any provision of this Agreement or any other Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, ~~waiver~~ waiver, modification or consent ~~requires~~ would reduce the ~~consent~~ rate of interest or extend the final scheduled maturity of any Advance or Note, or the date for payment of any fees or other interest on any Advance, or waive or excuse any such payment or any part thereof, or decrease the rate of interest on any Advance, or reduce the principal amount thereof, in each case to the extent subject to such participation, or release all ~~Lenders~~or substantially all of the Collateral (except as expressly provided in the Collateral Documents) under all of the Collateral Documents. (h) Any Lender Party may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section ~~8.07~~11.7, disclose to the assignee or 134 127 participant or proposed assignee or ~~participant~~ participant, any information relating to the ~~Borrowers~~ Borrower furnished to such Lender Party by or on behalf of the ~~Borrowers~~Borrower; provided, however, 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 received by it from such Lender Party in accordance with the terms of set forth in Section ~~8.09~~11.10. (i) Notwithstanding any other provision set forth in this Agreement, any Lender Party may at any time create a security interest in all or any portion of its rights under this Agreement (~~including~~ including, without limitation, the ~~Term Loan~~ 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 ~~System. (j) Notwithstanding anything to~~ System without notice to, or the ~~contrary contained herein~~consent of, the Borrower or the Administrative Agent and, with the consent of the Borrower and the Administrative Agent, any Lender ~~that~~ which is a fund ~~that invests in bank loans~~ may ~~create a security interest in~~ pledge all or any portion of ~~the Term Loan~~ Advances owing to it ~~and~~ or the Note or Notes held by it to ~~the~~ its trustee ~~for holders~~ in support of its obligations ~~owed~~to its trustee. No such pledge, assignment or ~~securities issued, by such fund as~~ creation of security ~~for such obligations or securities, provided, that unless and until such trustee actually becomes a Lender in compliance with the other provisions of this Section 8.07, (i) no such pledge~~ interest shall release the ~~pledging~~ transferor Lender from ~~any of~~ its obligations under the Loan Documents and (ii) such trustee shall not be entitled to exercise any of the rights of a Lender under the Loan Documents even though such trustee may have acquired ownership rights with respect to the pledged interest through foreclosure or otherwise. (k) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Lender”) may grant to a special purpose funding vehicle identified as such in writing from time to time by the Granting Lender to the Administrative Agent and BMCA (an “SPC”) the option to provide all or any part of any Term Loan Advance that such Granting Lender would otherwise be obligated to make pursuant to this Agreement, provided that (i) nothing herein shall constitute a commitment by any SPC to fund any Term Loan Advance, and (ii) if an SPC elects not to exercise such option or otherwise fails to make all or any part of such Term Loan Advance, the Granting Lender shall be obligated to make such Term Loan Advance pursuant to the terms hereof. The making of an Advance by an SPC hereunder shall utilize the Term Loan Commitment of the Granting Lender to the same extent, and as if, such Term Loan Advance were made by such Granting Lender. Each party hereto hereby agrees that (i) no SPC shall be liable for any indemnity or similar payment obligation under this Agreement for which a Lender would be liable, (ii) no SPC shall be entitled to the benefits of Sections 2.09 and 2.11 (or any other increased costs protection provision) and (iii) the Granting Bank shall for all purposes, including the approval of any amendment or waiver of any provision of any Loan Document, remain the Lender of record hereunder. In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior Debt of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency, or liquidation proceeding under the laws of the United States or any State thereof. Notwithstanding anything to the contrary contained in this Agreement, any SPC may (i) with notice to, but without prior consent of, BMCA and the Administrative Agent and with the payment of a processing fee of $500 and without paying any processing fee therefor, assign all or any portion of its interest in any Term Loan Advance to the Granting Lender and (ii) disclose on a confidential basis any non-public information relating to its funding of Term Loan Advance to any rating agency, commercial paper dealer or provider of any surety or guarantee or credit or liquidity enhancement to such SPC. This subsection (k) may not be amended without the prior written consent of each Granting Lender, all or any part of whose Term Loan Advances are being funded by the SPC at the time of such amendment.

Appears in 1 contract

Samples: Credit Agreement (Inphynet South Broward Inc)

Assignments and Participations. (a) ~~Each~~ Any Lender ~~may~~(i) may (and in the case of clause (B) below, ~~upon at least five Business Days’ notice to such Lender and the Administrative Agent,~~ shall) assign to one or more Eligible Assignees or an Affiliate of a Lender that is not an Eligible Assignee all or a portion of its rights and obligations under this Agreement (~~including~~ including, without limitation, all or a portion of its ~~Term Loan Commitment~~Commitment or Commitments, the ~~Term Loan~~ Advances owing to it and the Note or Notes held by it); provided, however, that (A) except in the case of an assignment to an Eligible Assignee that is a Lender or an Affiliate of a Lender, each of the Paying Agent and, unless a Default shall have occurred and be continuing at the time such assignment is effected, the Borrower must give their prior consent to such assignment (which consent shall not be unreasonably withheld or delayed) and (B) if the assignment is demanded by the Borrower pursuant to Section 2.17, no Default shall have occurred and be continuing at the time of such demand and such assignment and the Borrower shall have given at least five Business Days' notice of such demand to the applicable Lender and the Paying Agent; provided, however, that (i) each such assignment shall be of a uniform, and not a varying, percentage of all rights and obligations under ~~this Agreement~~and in respect of one or more of the Facilities, (ii) except in the case of an assignment to a Person that, immediately prior to such assignment, was a Lender, an Affiliate of any Lender or an ~~Approved Fund of any Lender or an~~ assignment of all of a Lender’s 's rights and obligations under this Agreement, the aggregate amount of the ~~Term Loan~~ Commitments ~~or Term Loan Advances~~ being assigned to such Eligible Assignee pursuant to such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than the lesser of $5,000,000 and 5% of the aggregate amount (or such lesser amount as shall be approved by the ~~Administrative~~ Paying Agent and, so long as no Default shall have occurred and be continuing at the time of effectiveness of such assignment, ~~BMCA)~~the Borrower) of the Commitment being assigned, (iii) each such assignment shall be to an Eligible ~~Assignee~~Assignee or an Affiliate of a Lender, (iv) ~~except in~~ each such assignment made as a result of a demand by the ~~case of~~ Borrower pursuant to Section 2.17 shall be arranged by the Borrower after consultation with the Paying Agent and shall be either an assignment of all of the rights and obligations of the assigning Lender under this Agreement or an assignment of a portion of such rights and obligations made concurrently with another such assignment or other such assignments that together cover all of the rights and obligations of the assigning Lender under this Agreement, (v) no Lender shall be obligated to make any such assignment (whether as a result of a demand by ~~a Person that, immediately prior~~ the Borrower pursuant to Section 2.17 or otherwise) unless and until such Lender shall have received one or more payments from either the Borrower or one or more Eligible Assignees in an aggregate amount at least equal to the aggregate outstanding principal amount of the Advances owing to such ~~assignment, was a~~ Lender, together with accrued interest thereon to ~~one~~ the date of ~~its Affiliates, no such assignments shall be permitted without the consent of the Administrative Agent and, so long as no Default shall have occurred and be continuing at the time of effectiveness~~ payment of such ~~assignment~~principal amount and all other amounts payable to such Lender under this Agreement, ~~BMCA (in each case, which consents shall not be unreasonably withheld)~~ and (vvi) the parties to each such assignment shall execute and deliver to the ~~Administrative~~ Paying Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together with any Note or Notes subject to such assignment and a processing and recordation fee of $3,500; provided, however, the Borrower shall have no liability for the payment of such fee except that for each such assignment made as a result of a demand by the Borrower pursuant to Section 2.17, the Borrower shall pay to the Paying Agent the applicable processing and recordation fee. (b) Upon such execution, delivery, acceptance and recording, from and after the effective date specified in such 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, have the rights and obligations of a Lender or Issuing Bank, as the case may be, hereunder and (ii) the Lender or Issuing Bank assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (other than its rights under Sections ~~2.09~~2.10, ~~2.11~~ 2.12 and 8.04 to the extent any claim thereunder relates to an event arising prior to such assignment) and be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all of the remaining portion of an assigning Lender’s 's or Issuing Bank's rights and obligations under this Agreement, such Lender or Issuing Bank shall cease to be a party hereto). (c) By executing and delivering an Assignment and Acceptance, each Lender Party assignor thereunder and each assignee thereunder confirm to and agree with each other and the other parties thereto and hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender Party makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with any Loan Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value of, or the perfection or priority of any ~~lien or security interest~~ Lien created or purported to be created under or in connection with, any Loan Document or any other instrument or document furnished pursuant thereto; (ii) such assigning Lender Party makes no representation or warranty and assumes no responsibility with respect to the financial condition of the General Partner, any Loan Party or the performance or observance by any Loan Party of any of its obligations under any Loan Document or any other instrument or document furnished pursuant thereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 4.01 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) such assignee will, independently and without reliance upon any Agent, such assigning Lender Party or any other Lender Party and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) such assignee confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes each Agent to take such action as agent on its behalf and to exercise such powers and discretion under the Loan Documents as are delegated to such Agent by the terms hereof and thereof, together with such powers and discretion as are reasonably incidental thereto; and (vii) such assignee agrees that it will perform in accordance with their terms all of the obligations that by the terms of this Agreement are required to be performed by it as a ~~Lender~~Lender or Issuing Bank, as the case may be. (d) The ~~Administrative~~ Paying Agent ~~acting for this purpose (but only for this purpose) as the agent of the Borrowers,~~ shall maintain at its address referred to in Section 8.02 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 ~~Lenders~~ Lender Parties and the ~~Term Loan~~ Commitment under each Facility of, and principal amount of the ~~Term Loan~~ Advances owing under each Facility to, each Lender Party from time to time (the ~~“Register”~~"REGISTER"). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the ~~Borrowers~~Borrower, the Agents and the ~~Lenders shall~~ Lender Parties may treat each Person whose name is recorded in the Register as a Lender Party hereunder for all purposes of this Agreement. The Register shall be available for inspection by the ~~Borrowers~~ Borrower or any Agent or any Lender Party at any reasonable time and from time to time upon reasonable prior notice. (e) Notwithstanding anything to the contrary contained in clause (b) above, the Term Loan Advances (including the Notes evidencing such Term Loan Advances) are registered obligations and the right, title, and interest of the Lenders and their assignees in and to such Term Loan Advances shall be transferable only upon notation of such transfer in the Register. A Note shall only evidence the Lender’s or an assignee’s right title and interest in and to the related Term Loan Advance, and in no event is any such Note to be considered a bearer instrument or obligation. This Section 8.07 shall be construed so that the Term Loan Advances are at all times maintained in “registered form” within the meaning of sections 163(f), 871(h)(2) and 881(c)(2) of the Internal Revenue Code and any related regulations (or any successor provisions of the Internal Revenue Code or such regulations). Solely for purposes of this and for tax purposes only, the Administrative Agent shall act as each Borrower’s agent for purposes of maintaining such notations of transfer in the Register. (f) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender Party and an assignee, together with any Note or Notes subject to such assignment, the ~~Administrative~~ Paying Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit C hereto, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to ~~BMCA~~ the Borrower and each other Agent. In the case of any assignment by a Lender, within five Business Days after its receipt of such notice, the ~~Borrowers~~Borrower, at ~~their~~ its own expense, shall, if new Notes are requested by the ~~assignee~~applicable assignee and/or assignor, execute and deliver to the ~~Administrative~~ Paying Agent in exchange for the surrendered Note or Notes ~~an amended and restated~~ a new Note ~~(which shall be marked “Amended and Restated”)~~ to the order of such Eligible Assignee in an amount equal to the ~~Term Loan~~ Commitment assumed by it under each Facility pursuant to such Assignment and Acceptance and, if any assigning Lender has retained a ~~Term Loan~~ Commitment hereunder under such ~~Facility and has requested~~ Facility, a ~~replacement Note, an amended and restated~~ new Note to the order of such assigning Lender in an amount equal to the ~~Term Loan~~ Commitment retained by it hereunder. Such ~~amended and restated~~ 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 Assignment and Acceptance and shall otherwise be in substantially the form of Exhibit A hereto. (f) Each Issuing Bank may assign to one or more Eligible Assignees all or a portion of its rights and obligations under the undrawn portion of its Letter of Credit Commitment at any time; provided, however, that (i) except in the case of an assignment to a Person that immediately prior to such assignment was an Issuing Bank or an assignment of all of an Issuing Bank's rights and obligations under this Agreement, the amount of the Letter of Credit Commitment of the assigning Issuing Bank being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $5,000,000 or an integral multiple of $1,000,000 in excess thereof, (ii) each such assignment shall be to an Eligible Assignee and (iii) the parties to each such assignment shall execute and deliver to the Paying Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together with a processing and recordation fee of $3,500. (g) Each Lender Party may sell participations to one or more Persons (other than any Loan Party or any of its Affiliates) in or to all or a portion of its rights and obligations under this Agreement (~~including~~ including, without limitation, all or a portion of its ~~Term Loan~~ Commitments, the ~~Term Loan~~ Advances owing to it and the Note or Notes (if any) held by it); provided, however, that (i) such ~~Lender’s~~ Lender Party's obligations under this Agreement (~~including~~ including, without limitation, its ~~Term Loan~~ Commitments) shall remain unchanged, (ii) such Lender Party shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) such Lender Party shall remain the holder of any such Note for all purposes of this Agreement, (iv) the ~~Borrowers~~Borrower, the Agents and the other ~~Lenders~~ Lender Parties shall continue to deal solely and directly with such Lender Party in connection with such ~~Lender’s~~ Lender Party's rights and obligations under this Agreement and (v) no participant under any such participation shall have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by or on behalf of any Loan Party therefrom, except to the extent that such amendment, waiver or consent ~~requires~~ would reduce the ~~consent~~ principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, postpone any date fixed for any payment of ~~all Lenders~~principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, or release any Subsidiary Guarantor. (h) Any Lender Party may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section 8.07, disclose to the assignee or participant or proposed assignee or participant any information relating to the ~~Borrowers~~ Borrower furnished to such Lender Party by or on behalf of the ~~Borrowers~~Borrower; provided, however, 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 received by it from such Lender Party in accordance with ~~the terms of~~ Section ~~8.09~~8.10. (i) Notwithstanding any other provision set forth in this Agreement, any Lender Party may at any time ~~create a security interest in~~ pledge or assign all or any portion of its rights under this Agreement (~~including~~ including, without limitation, the ~~Term Loan~~ 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 System~~. (j) Notwithstanding anything to the contrary contained herein, any Lender~~ ; provided that is a fund that invests in bank loans may create a security interest in all or any portion of the Term Loan Advances owing to it and the Note or Notes held by it to the trustee for holders of obligations owed, or securities issued, by such fund as security for such obligations or securities, provided, that unless and until such trustee actually becomes a Lender in compliance with the other provisions of this Section 8.07, (i) no such pledge or assignment shall release ~~the pledging~~ a Lender Party from any of its obligations ~~under the Loan Documents and (ii)~~ hereunder or substitute any such ~~trustee shall not be entitled to exercise any of the rights of~~ pledgee or assignee for such Lender Party as a ~~Lender under the Loan Documents even though such trustee may have acquired ownership rights with respect to the pledged interest through foreclosure or otherwise~~party hereto. (k) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Lender”) may grant to a special purpose funding vehicle identified as such in writing from time to time by the Granting Lender to the Administrative Agent and BMCA (an “SPC”) the option to provide all or any part of any Term Loan Advance that such Granting Lender would otherwise be obligated to make pursuant to this Agreement, provided that (i) nothing herein shall constitute a commitment by any SPC to fund any Term Loan Advance, and (ii) if an SPC elects not to exercise such option or otherwise fails to make all or any part of such Term Loan Advance, the Granting Lender shall be obligated to make such Term Loan Advance pursuant to the terms hereof. The making of an Advance by an SPC hereunder shall utilize the Term Loan Commitment of the Granting Lender to the same extent, and as if, such Term Loan Advance were made by such Granting Lender. Each party hereto hereby agrees that (i) no SPC shall be liable for any indemnity or similar payment obligation under this Agreement for which a Lender would be liable, (ii) no SPC shall be entitled to the benefits of Sections 2.09 and 2.11 (or any other increased costs protection provision) and (iii) the Granting Bank shall for all purposes, including the approval of any amendment or waiver of any provision of any Loan Document, remain the Lender of record hereunder. In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior Debt of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency, or liquidation proceeding under the laws of the United States or any State thereof. Notwithstanding anything to the contrary contained in this Agreement, any SPC may (i) with notice to, but without prior consent of, BMCA and the Administrative Agent and with the payment of a processing fee of $500 and without paying any processing fee therefor, assign all or any portion of its interest in any Term Loan Advance to the Granting Lender and (ii) disclose on a confidential basis any non-public information relating to its funding of Term Loan Advance to any rating agency, commercial paper dealer or provider of any surety or guarantee or credit or liquidity enhancement to such SPC. This subsection (k) may not be amended without the prior written consent of each Granting Lender, all or any part of whose Term Loan Advances are being funded by the SPC at the time of such amendment.

Appears in 1 contract

Samples: Credit Agreement (Alliance Resource Partners Lp)

Assignments and Participations. (a) Each Lender ~~may, upon at least five Business Days’ notice to such Lender and the Administrative Agent,~~ may assign to one or more Eligible Assignees all or a portion of its rights and obligations under this Agreement (~~including~~ including, without limitation, all or a portion of its ~~Term Loan Commitment~~Commitment or Commitments, the Term ~~Loan~~ Advances owing to it and the Note or Notes held by it); provided, however, that (i) each such assignment shall be of a uniform, and not a varying, percentage of all rights and obligations under ~~this Agreement~~and in respect of the Term Facility, (ii) except in the case of an assignment to a Person that, immediately prior to such assignment, was a Lender, an Affiliate of any Lender or ~~an Approved~~ a Fund Affiliate of any Lender or an assignment of all of a Lender’s rights and obligations under this Agreement, the aggregate amount of the ~~Term Loan~~ Commitments ~~or Term Loan Advances~~ being assigned to such Eligible Assignee pursuant to such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $~~5,000,000~~ 1,000,000 under the Term Facility or an integral multiple of $500,000 in excess thereof (or such lesser amount as shall be approved by the Administrative Agent and, so long as no Default shall have occurred and be continuing at the time of effectiveness of such assignment, ~~BMCA~~the Borrower), (iii) each such assignment shall be to an Eligible Assignee, (iv) except in the case of an assignment by to a Person that, immediately prior to such assignment, was a Lender, ~~to one~~ an Affiliate of ~~its Affiliates, no such assignments shall be permitted without the consent~~ any Lender or a Fund Affiliate of ~~the Administrative Agent and,~~ any Lender and so long as no Default shall have occurred and be ~~continuing at~~ continuing, each assignment shall be made with the ~~time~~ consent of ~~effectiveness of such assignment, BMCA (in each case~~the Borrower, which ~~consents~~ consent shall not be unreasonably withheld or delayed, (v) no such assignments shall be permitted (A) until the Administrative Agent shall have notified the Lenders that syndication of the Commitments hereunder has been completed, without the consent of the Administrative Agent, and (B) at any other time without the consent of the Administrative Agent (which consent shall not be unreasonably withheld) ), and (vvi) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together with any Note or Notes subject to such assignment ~~and~~ and, except if such assignment is being made by a Lender to an Affiliate or Fund Affiliate of such Lender, a processing and recordation fee of $~~3,500~~3,500 in connection with secondary assignments and participations only. (b) Upon such execution, delivery, acceptance and recording, from and after the effective date specified in such 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, have the rights and obligations of a Lender hereunder and (ii) the Lender assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (other than its rights under Sections ~~2.09~~2.10, ~~2.11~~ 2.12, 7.06, 8.05 and ~~8.04~~ 9.04 to the extent any claim thereunder relates to an event arising prior to such assignment) and be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all of the remaining portion of an assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto). (c) By executing and delivering an Assignment and Acceptance, each Lender assignor thereunder and each assignee thereunder confirm to and agree with each other and the other parties thereto and hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with any Loan Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value of, or the perfection or priority of any lien or security interest created or purported to be created under or in connection with, any Loan Document or any other instrument or document furnished pursuant thereto; (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party or the performance or observance by any Loan Party of any of its obligations under any Loan Document or any other instrument or document furnished pursuant thereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 4.01 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) such assignee will, independently and without reliance upon ~~any~~ the Administrative Agent, such assigning Lender or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) such assignee confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes ~~each~~ the Administrative Agent to take such action as agent on its behalf and to exercise such powers and discretion under the Loan Documents as are delegated to ~~such~~ the Administrative Agent by the terms hereof and thereof, together with such powers and discretion as are reasonably incidental thereto; and (vii) such assignee agrees that it will perform in accordance with their terms all of the obligations that by the terms of this Agreement are required to be performed by it as a Lender. (d) The Administrative Agent ~~acting for this purpose (but only for this purpose) as the agent of the Borrowers,~~ shall maintain at its address referred to in Section ~~8.02~~ 9.02 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 Lenders and the Commitment under the Term ~~Loan Commitment~~ Facility of, and principal amount of the Term ~~Loan~~ Advances owing under the Term Facility 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 ~~Borrowers~~Borrower, the ~~Agents~~ Administrative Agent and the Lenders ~~shall~~ 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~~ Borrower or ~~any~~ the Administrative Agent or any Lender at any reasonable time and from time to time upon reasonable prior notice. (e) Notwithstanding anything to the contrary contained in clause (b) above, the Term Loan Advances (including the Notes evidencing such Term Loan Advances) are registered obligations and the right, title, and interest of the Lenders and their assignees in and to such Term Loan Advances shall be transferable only upon notation of such transfer in the Register. A Note shall only evidence the Lender’s or an assignee’s right title and interest in and to the related Term Loan Advance, and in no event is any such Note to be considered a bearer instrument or obligation. This Section 8.07 shall be construed so that the Term Loan Advances are at all times maintained in “registered form” within the meaning of sections 163(f), 871(h)(2) and 881(c)(2) of the Internal Revenue Code and any related regulations (or any successor provisions of the Internal Revenue Code or such regulations). Solely for purposes of this and for tax purposes only, the Administrative Agent shall act as each Borrower’s agent for purposes of maintaining such notations of transfer in the Register. (f) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee, together with any Note or Notes subject to such assignment, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit C D hereto, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to ~~BMCA~~ the Borrower and each other Agent. In the case of any assignment by a Lender, within five Business Days after its receipt of such notice, the ~~Borrowers~~Borrower, at ~~their~~ its own expense, shall, if requested by the ~~assignee~~applicable Lender, execute and deliver to the Administrative Agent in exchange for the surrendered Note or Notes ~~an amended and restated~~ a new Note ~~(which shall be marked “Amended and Restated”)~~ to the order of such Eligible Assignee in an amount equal to the ~~Term Loan~~ Commitment assumed by it under ~~each~~ the Term Facility pursuant to such Assignment and Acceptance and, if any assigning Lender has retained a ~~Term Loan~~ Commitment ~~hereunder under such Facility and has requested~~ hereunder, a ~~replacement Note, an amended and restated~~ new Note to the order of such assigning Lender in an amount equal to the ~~Term Loan~~ Commitment retained by it hereunder. Such ~~amended and restated~~ new Note or ~~Notes~~ Notes, if any, shall be in an aggregate principal amount equal to the aggregate principal amount of such surrendered Note or Notes, shall be dated the effective date of such Assignment and Acceptance and shall otherwise be in substantially the form of Exhibit A hereto. (gf) Each Lender may sell participations to one or more Persons (other than any Loan Party or any of its Affiliates) in or to all or a portion of its rights and obligations under this Agreement (~~including~~ including, without limitation, all or a portion of its ~~Term Loan~~ Commitments, the Term ~~Loan~~ Advances owing to it and the Note or Notes (if any) held by it); provided, however, that (i) such Lender’s obligations under this Agreement (~~including~~ including, without limitation, its ~~Term Loan~~ Commitments) shall remain unchanged, (ii) 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, (iv) the ~~Borrowers~~Borrower, the ~~Agents~~ Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this ~~Agreement and~~ Agreement, (v) no participant under any such participation shall have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent ~~requires~~ would reduce the ~~consent~~ principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, or postpone any date fixed for any payment of principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, or release all ~~Lenders~~or substantially all of the Collateral and (vi) if, at the time of such sale, such Lender was entitled to payments under Section 2.11(a) in respect of United States withholding tax with respect to interest paid at such date, then, to such extent, the term Taxes shall include (in addition to withholding taxes that may be imposed in the future or other amounts otherwise includable in Taxes) United States withholding tax, if any, applicable with respect to such participant on such date; provided that such participant complies with the requirements of Section 2.11(e). (hg) Any Lender may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section ~~8.07~~9.07, disclose to the assignee or participant or proposed assignee or participant any information relating to the ~~Borrowers~~ Borrower furnished to such Lender by or on behalf of the ~~Borrowers~~Borrower; provided, however, 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 received by it from such ~~Lender in accordance with the terms of Section 8.09~~Lender. (ih) Notwithstanding any other provision set forth in this Agreement, any Lender may at any time create a security interest in all or any portion of its rights under this Agreement (~~including~~ including, without limitation, the Term ~~Loan~~ 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 System. (j) Notwithstanding anything to the contrary contained herein, any Lender that is a fund that invests in bank loans may create a security interest in all or any portion of the Term Loan Advances owing to it and the Note or Notes held by it to the trustee for holders of obligations owed, or securities issued, by such fund as security for such obligations or securities, provided, that unless and until such trustee actually becomes a Lender in compliance with the other provisions of this Section 8.07, (i) no such pledge shall release the pledging Lender from any of its obligations under the Loan Documents and (ii) such trustee shall not be entitled to exercise any of the rights of a Lender under the Loan Documents even though such trustee may have acquired ownership rights with respect to the pledged interest through foreclosure or otherwise. (k) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Lender”) may grant to a special purpose funding vehicle identified as such in writing from time to time by the Granting Lender to the Administrative Agent and BMCA (an “SPC”) the option to provide all or any part of any Term Loan Advance that such Granting Lender would otherwise be obligated to make pursuant to this Agreement, provided that (i) nothing herein shall constitute a commitment by any SPC to fund any Term Loan Advance, and (ii) if an SPC elects not to exercise such option or otherwise fails to make all or any part of such Term Loan Advance, the Granting Lender shall be obligated to make such Term Loan Advance pursuant to the terms hereof. The making of an Advance by an SPC hereunder shall utilize the Term Loan Commitment of the Granting Lender to the same extent, and as if, such Term Loan Advance were made by such Granting Lender. Each party hereto hereby agrees that (i) no SPC shall be liable for any indemnity or similar payment obligation under this Agreement for which a Lender would be liable, (ii) no SPC shall be entitled to the benefits of Sections 2.09 and 2.11 (or any other increased costs protection provision) and (iii) the Granting Bank shall for all purposes, including the approval of any amendment or waiver of any provision of any Loan Document, remain the Lender of record hereunder. In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior Debt of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency, or liquidation proceeding under the laws of the United States or any State thereof. Notwithstanding anything to the contrary contained in this Agreement, any SPC may (i) with notice to, but without prior consent of, BMCA and the Administrative Agent and with the payment of a processing fee of $500 and without paying any processing fee therefor, assign all or any portion of its interest in any Term Loan Advance to the Granting Lender and (ii) disclose on a confidential basis any non-public information relating to its funding of Term Loan Advance to any rating agency, commercial paper dealer or provider of any surety or guarantee or credit or liquidity enhancement to such SPC. This subsection (k) may not be amended without the prior written consent of each Granting Lender, all or any part of whose Term Loan Advances are being funded by the SPC at the time of such amendment.

Appears in 1 contract

Samples: Term Credit Agreement (Sunstone Hotel Investors, Inc.)

Assignments and Participations. (a) Each Lender ~~may, upon at least five Business Days’ notice to such Lender and the Administrative Agent,~~ may assign to one or more ~~Eligible Assignees~~ Persons all or a portion of its rights and obligations under this Agreement (~~including~~ including, without limitation, all or a portion of its ~~Term Loan~~ Commitment, and the ~~Term Loan~~ Committed Advances owing to it and the Committed Note or Notes held by it); provided, however, that (i) each such assignment (other than assignment to an affiliate of such Lender) shall require the prior written consent of the Borrower, which consent shall not be unreasonably withheld or delayed, and which consent of the Borrower shall not be required if an Event of Default exists, (ii) each such assignment shall be of a ~~uniform~~constant, and not a varying, percentage of all rights and obligations under this ~~Agreement~~Agreement (other than any right to make Uncommitted Advances, Uncommitted Advances owing to it and Uncommitted Notes), (iiiii) except in the case of an assignment to a Person that, immediately prior to such assignment, was a ~~Lender, an Affiliate of any Lender or an Approved Fund of any~~ Lender or an assignment of all of a Lender’s rights and obligations under this Agreement, the ~~aggregate~~ amount of the ~~Term Loan Commitments or Term Loan Advances~~ Commitment of the assigning Lender being assigned ~~to such Eligible Assignee~~ pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $5,000,000 (or ~~such lesser amount as shall be approved by the Administrative Agent and~~an integral multiple of $1,000,000 in excess thereof, ~~so long as no Default shall have occurred~~ and ~~be continuing at the time of effectiveness of such assignment, BMCA), (iii) each such assignment shall be to an Eligible Assignee,~~ (iv) except in the case of an assignment by a Person that, immediately prior to such assignment, was a Lender, to one of its Affiliates, no such assignments shall be permitted without the consent of the Administrative Agent and, so long as no Default shall have occurred and be continuing at the time of effectiveness of such assignment, BMCA (in each case, which consents shall not be unreasonably withheld) and (v) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and ~~Acceptance~~Acceptance (which shall include the agreement of the assignee party to such assignment, for the benefit of the Borrower, to be bound by the terms and provisions of this Agreement to the same extent as if it were an original party hereto), together with any Committed Note ~~or Notes~~ subject to such assignment and the assignor or assignee shall pay to the Administrative Agent a processing and recordation fee of $3,500~~. (b)~~ . Upon such execution, delivery, acceptance and recording, from and after the effective date specified in ~~such~~ each Assignment and Acceptance, (ix) the assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, have the rights and obligations of a Lender hereunder and (iiy) the Lender assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights ~~(other than its rights under Sections 2.09, 2.11 and 8.04 to the extent any claim thereunder relates to an event arising prior to such assignment)~~ and be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all of or the remaining portion of an assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto).. CREDIT AGREEMENT (cb) By executing and delivering an Assignment and Acceptance, ~~each~~ the Lender assignor thereunder and ~~each~~ the assignee thereunder confirm to and agree with each other and the other parties ~~thereto and~~ hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with ~~any Loan Document~~ this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value ~~of, or the perfection or priority~~ of ~~any lien or security interest created or purported to be created under or in connection with, any Loan Document~~ this Agreement or any other instrument or document furnished pursuant ~~thereto~~hereto; (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of ~~any Loan Party~~ the Borrower or the performance or observance by ~~any Loan Party~~ the Borrower of any of its obligations under ~~any Loan Document~~ this Agreement or any other instrument or document furnished pursuant ~~thereto~~hereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 4.01 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) such assignee will, independently and without reliance upon ~~any~~ the Administrative Agent, such assigning Lender or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) such assignee ~~confirms that it is an Eligible Assignee; (vi) such assignee~~ appoints and authorizes ~~each~~ the Administrative Agent to take such action as agent on its behalf and to exercise such powers and discretion under ~~the Loan Documents~~ this Agreement as are delegated to ~~such~~ the Administrative Agent by the terms ~~hereof and thereof~~hereof, together with such powers and discretion as are reasonably incidental thereto; and (~~vii~~vi) such assignee agrees that it will perform in accordance with their terms all of the obligations that by the terms of this Agreement are required to be performed by it as a Lender. (c) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee, together with any Committed Note or Notes subject to such assignment, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit G hereto, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the Borrower. In the case of any Lender that holds a Committed Note, within five Business Days after its receipt of such notice, the Borrower, at its own expense, shall execute and deliver to the Administrative Agent in simultaneous exchange for the surrendered Committed Note a new Committed Note to the order of such assignee in an amount equal to the Commitment assumed by it pursuant to such Assignment and Acceptance and, if the assigning Lender has retained a Commitment hereunder, a new Committed Note to the order of the assigning Lender in an amount equal to the Commitment retained by it hereunder. Such new Committed Note or Notes shall be in an aggregate principal amount equal to the aggregate principal amount of such surrendered Committed Note or Notes, shall be dated the effective date of such Assignment and Acceptance and shall otherwise be in substantially the form of Exhibit H-2. Such Assignment and Acceptance shall be deemed to amend this Agreement to the extent, and only to the extent, necessary to reflect the addition of such Person as a Lender and the resulting adjustment of the Commitments, if any, arising from such assignment of Commitments to such Person. (d) The Administrative ~~Agent~~ Agent, acting solely for this purpose ~~(but only for this purpose)~~ as ~~the~~ an agent of the ~~Borrowers~~Borrower, shall maintain at its address referred to in Section 8.02 a copy of each Assignment and Acceptance delivered to and accepted by it and a register for the recordation of the names and CREDIT AGREEMENT addresses of the Lenders and the ~~Term Loan~~ Commitment of, and principal amount of the ~~Term Loan~~ 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 ~~Borrowers~~Borrower, the ~~Agents~~ Administrative Agent and the Lenders ~~shall~~ 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 Agent~~ Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice. (e) Notwithstanding anything to the contrary contained in clause (b) above, the Term Loan Advances (including the Notes evidencing such Term Loan Advances) are registered obligations and the right, title, and interest of the Lenders and their assignees in and to such Term Loan Advances shall be transferable only upon notation of such transfer in the Register. A Note shall only evidence the Lender’s or an assignee’s right title and interest in and to the related Term Loan Advance, and in no event is any such Note to be considered a bearer instrument or obligation. This Section 8.07 shall be construed so that the Term Loan Advances are at all times maintained in “registered form” within the meaning of sections 163(f), 871(h)(2) and 881(c)(2) of the Internal Revenue Code and any related regulations (or any successor provisions of the Internal Revenue Code or such regulations). Solely for purposes of this and for tax purposes only, the Administrative Agent shall act as each Borrower’s agent for purposes of maintaining such notations of transfer in the Register. (f) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee, together with any Note or Notes subject to such assignment, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit C hereto, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to BMCA and each other Agent. In the case of any assignment by a Lender, within five Business Days after its receipt of such notice, the Borrowers, at their own expense, shall, if requested by the assignee, execute and deliver to the Administrative Agent in exchange for the surrendered Note or Notes an amended and restated Note (which shall be marked “Amended and Restated”) to the order of such Eligible Assignee in an amount equal to the Term Loan Commitment assumed by it under each Facility pursuant to such Assignment and Acceptance and, if any assigning Lender has retained a Term Loan Commitment hereunder under such Facility and has requested a replacement Note, an amended and restated Note to the order of such assigning Lender in an amount equal to the Term Loan Commitment retained by it hereunder. Such amended and restated 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 Assignment and Acceptance and shall otherwise be in substantially the form of Exhibit A hereto. (g) Each Lender may sell participations to one or more ~~Persons (~~banks or other ~~than any Loan Party~~ financial institutions, or ~~any~~ other entities engaged in making, purchasing, holding or otherwise investing in bank loans and similar extensions of ~~its Affiliates)~~ credit in ~~or to~~ the ordinary course of their business, in all or a portion of its rights ~~and~~ and/or obligations under this Agreement (~~including~~ including, without limitation, all or a portion of its ~~Term Loan Commitments,~~ Commitment and the ~~Term Loan~~ Advances owing to it and the Note or Notes ~~(if any)~~ held by it); ~~provided, however,~~ provided that (i) such Lender’s obligations under this Agreement (~~including~~ including, without limitation, its ~~Term Loan Commitments~~Commitment) shall remain unchanged, (ii) such Lender shall remain solely responsible to the ~~other parties hereto~~ Borrower for the performance of such obligations, (iii) ~~such Lender shall remain~~ the ~~holder of any such Note for all purposes of this Agreement, (iv) the Borrowers, the Agents and the other Lenders~~ Borrower shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and (viv) ~~no participant under any~~ such ~~participation shall have any~~ participant’s right to ~~approve any amendment or waiver of any provision of any Loan Document, or any~~ consent to any ~~departure by any Loan Party therefrom, except to the extent that such amendment~~modification, waiver or ~~consent requires~~ release of any of the ~~consent~~ provisions of ~~all Lenders. (h) Any Lender may, in connection with any assignment or participation or proposed assignment or participation pursuant to~~ this ~~Section 8.07, disclose~~ Agreement shall be limited to the ~~assignee~~ right to consent to (A) any reduction in principal, interest or ~~participant or proposed assignee or participant any information relating to the Borrowers furnished~~ fees payable to such Lender by or on behalf of the Borrowers; provided, however, 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 received by it from such Lender in accordance with the terms of Section 8.09. (i) Notwithstanding any other provision set forth in under this Agreement, (B) the postponement of any ~~Lender may at~~ date fixed for the payment of any ~~time create a security~~ principal, interest ~~in all~~ or ~~any portion of its rights~~ fees under this Agreement and (~~including the Term Loan Advances owing to it and the Note or Notes held by it~~C) ~~in favor of~~ any ~~Federal Reserve Bank in accordance with Regulation A of the Board of Governors of the Federal Reserve System. (j) Notwithstanding anything~~ amendments to the contrary contained herein, any Lender that is a fund that invests in bank loans may create a security interest in all or any portion of the Term Loan Advances owing to it and the Note or Notes held by it to the trustee for holders of obligations owed, or securities issued, by such fund as security for such obligations or securities, provided, that unless and until such trustee actually becomes a Lender in compliance with the other provisions of this Section 8.07, foregoing clauses (i) no such pledge shall release the pledging Lender from any of its obligations under the Loan Documents and (ii) such trustee shall not be entitled to exercise any of the rights of a Lender under the Loan Documents even though such trustee may have acquired ownership rights with respect to the pledged interest through foreclosure or otherwise. (k) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Lender”) may grant to a special purpose funding vehicle identified as such in writing from time to time by the Granting Lender to the Administrative Agent and BMCA (an “SPC”) the option to provide all or any part of any Term Loan Advance that such Granting Lender would otherwise be obligated to make pursuant to this Agreement, provided that (i) nothing herein shall constitute a commitment by any SPC to fund any Term Loan Advance, and (ii) if an SPC elects not to exercise such option or otherwise fails to make all or any part of such Term Loan Advance, the Granting Lender shall be obligated to make such Term Loan Advance pursuant to the terms hereof. The making of an Advance by an SPC hereunder shall utilize the Term Loan Commitment of the Granting Lender to the same extent, and as if, such Term Loan Advance were made by such Granting Lender. Each party hereto hereby agrees that (i) no SPC shall be liable for any indemnity or similar payment obligation under this Agreement for which a Lender would be liable, (ii) no SPC shall be entitled to the benefits of Sections 2.09 and 2.11 (or any other increased costs protection provisionA) and (iii) the Granting Bank shall for all purposes, including the approval of any amendment or waiver of any provision of any Loan Document, remain the Lender of record hereunder. In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior Debt of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency, or liquidation proceeding under the laws of the United States or any State thereof. Notwithstanding anything to the contrary contained in this Agreement, any SPC may (i) with notice to, but without prior consent of, BMCA and the Administrative Agent and with the payment of a processing fee of $500 and without paying any processing fee therefor, assign all or any portion of its interest in any Term Loan Advance to the Granting Lender and (ii) disclose on a confidential basis any non-public information relating to its funding of Term Loan Advance to any rating agency, commercial paper dealer or provider of any surety or guarantee or credit or liquidity enhancement to such SPC. This subsection (k) may not be amended without the prior written consent of each Granting Lender, all or any part of whose Term Loan Advances are being funded by the SPC at the time of such amendmentB).

Appears in 1 contract

Samples: Credit Agreement (Stanley Works)

Assignments and Participations. (a) Each of the Lenders may, and so long as no Default under Section 6.01(a) or 6.01(f) or Event of Default has occurred and is continuing, if demanded by the Borrower (following (i) a demand by such Lender ~~may~~for the payment of additional compensation pursuant to Section 2.10(a), 2.10(b) or 2.12 or (ii) an assertion by such Lender pursuant to Section 2.10(c) or 2.10(d) that it is impractical or unlawful for such Lender to make Eurodollar Rate Advances), upon at least five Business Days’ ' notice to such Lender and the Administrative Agent, each of the Lenders will, assign to one or more ~~Eligible Assignees~~ Persons all or a portion of its rights and obligations under this Agreement (~~including~~ including, without limitation, all or a portion of its ~~Term Loan Commitment~~Commitment or Commitments, the ~~Term Loan~~ Advances owing to it and the Note or Notes held by it); provided, however, ~~that~~ that: (iA) each such assignment with respect to any of the Facilities shall be of a uniform, and not a varying, percentage of all rights and obligations under ~~this Agreement,~~ and in respect of such Facility; (iiB) except in the case of an assignment to a Person ~~that,~~ that immediately prior to such ~~assignment,~~ assignment was a ~~Lender, an Affiliate of any Lender or an Approved Fund of any~~ Lender or an assignment of all of a Lender’s 's rights and obligations under ~~this Agreement~~one or more of the Facilities, the aggregate amount of the ~~Term Loan~~ Commitments ~~or Term Loan Advances~~ of the assigning Lender under all of the Facilities being assigned ~~to such Eligible Assignee~~ pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $5,000,000 (or such ~~lesser~~ other amount as ~~shall be approved by~~ the Administrative Agent and the assigning Lender and, so long as no Default ~~shall have~~ under Section 6.01(a) or 6.01(f) or Event of Default has occurred and ~~be continuing at~~ is continuing, the ~~time of effectiveness of such assignment, BMCA),~~ Borrower shall agree; (~~iii~~D) each such assignment made as a result of a demand by the Borrower pursuant to this Section 8.07(a) shall be ~~to an Eligible Assignee, (iv) except in~~ arranged by the ~~case of an assignment by a Person that, immediately prior to such assignment, was a Lender, to one of its Affiliates, no such assignments shall be permitted without~~ Borrower with the ~~consent~~ approval of the Administrative ~~Agent and, so long as no Default shall have occurred and be continuing at the time of effectiveness of such assignment, BMCA (in each case~~Agent, which ~~consents~~ approval shall not be unreasonably ~~withheld~~withheld or delayed, and shall be either an assignment of all of the rights and obligations of the assigning Lender under this Agreement or an assignment of a portion of such rights and obligations made concurrently with another such assignment or other such assignments that, in the aggregate, cover all of the rights and obligations of the assigning Lender under this Agreement; (E) no Lender shall be obligated to make any such assignment as a result of a demand by the Borrower pursuant to this Section 8.07(a) unless and until such Lender shall have received one or more payments from one or more Eligible Assignees in an aggregate amount at least equal to the aggregate outstanding principal amount of all Advances owing to such Lender, together with accrued interest thereon to the date of payment of such principal amount, and from the Borrower and/or one or more Eligible Assignees in an aggregate amount equal to all other amounts payable to such Lender under this Agreement and the Notes (vincluding, without limitation, any amounts owing under Sections 2.10, 2.12 and 8.04); (F) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together with any Note or Notes subject to such assignment; and (G) except in the case of an assignment ~~and~~ by any of the Lenders to an Approved Fund of such Lender, the Lender assignor (or, if such assignment is being made pursuant to a demand by the Borrower therefor under this Section 8.07(a), the Borrower or the Lender assignee) shall pay to the Administrative Agent a processing and recordation fee of $3,500. (b) The Issuing Bank may assign to any other Person all, but not a portion of, its rights and obligations under the undrawn portion of its Letter of Credit Commitment at any time; provided, however, that: (i) each such assignment shall be to an Eligible Assignee; and (ii) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together with a processing and recordation fee of $3,500. The Swing Line Bank may not assign or otherwise transfer to any other person any of its rights or obligations under its Swing Line Commitment. (c) Upon such execution, delivery, acceptance and recording, from and after the effective date specified in such 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, have the rights and obligations of a Lender or the Issuing Bank hereunder and (ii) the Lender or Issuing Bank assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (other than its rights under Sections ~~2.09~~2.10, ~~2.11~~ 2.12 and 8.04 (and other similar provisions of the other Loan Documents that are specified under the terms of such other Loan Documents to survive the payment in full of the Obligations of the Loan Parties under 125 -122- or in respect of the Loan Documents) to the extent any claim thereunder relates to an event arising prior to such assignment) and be released from its obligations (other than its obligations under Section 7.05 to the extent any claim thereunder relates to an event arising prior to such assignment) under this Agreement (and, in the case of an Assignment and Acceptance covering all of or the remaining portion of an assigning Lender’s 's rights and obligations under this Agreement, such Lender shall cease to be a party hereto). (cd) By executing and delivering an Assignment and Acceptance, ~~each~~ the Lender or the Issuing Bank assignor thereunder and ~~each~~ the assignee thereunder confirm to and agree with each other and the other parties ~~thereto and~~ hereto as follows: : (i) other than as provided in such Assignment and Acceptance, such assigning Lender or Issuing Bank makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or any of the other Loan ~~Document~~ Documents, or the execution, legality, validity, enforceability, genuineness, sufficiency or value ofof this Agreement or any of the other Loan Documents, ~~or the perfection or priority of any lien or security interest created or purported to be created under or in connection with, any Loan Document~~ or any other instrument or document furnished pursuant hereto or thereto; ; (ii) such assigning Lender or Issuing Bank makes no representation or warranty and assumes no responsibility with respect to the financial condition of the Borrower or any of the other Loan ~~Party~~ Parties or the performance or observance by the Borrower or any of the other Loan ~~Party~~ Parties of any of its ~~obligations~~ Obligations under or in respect of any of the Loan ~~Document~~ Documents, or any other instrument or document furnished pursuant thereto; ; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 4.01 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; ; (iv) such assignee will, independently and without reliance upon any ~~Agent~~of the Agents, such assigning Lender or any of the other Lender Parties and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; ; (v) such assignee confirms that it is an Eligible Assignee; ; (vi) such assignee appoints and authorizes ~~each~~ the Administrative Agent to take such action as an agent on its behalf and to exercise such powers and discretion under the Loan Documents as are delegated to ~~such~~ the Administrative Agent by the terms ~~hereof and thereof~~hereof, together with such powers and discretion as are reasonably incidental thereto; ~~and~~ and (vii) such assignee agrees that it will perform in accordance with their terms all of the obligations that by the terms of this Agreement are required to be performed by it as a ~~Lender~~Lender Party. (de) ~~The Administrative Agent acting for this purpose (but only for this purpose) as the agent~~ owing under each of the Borrowers, shall maintain at its address referred to in Section 8.02 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 Lenders and the Term Loan Commitment of, and principal amount of the Term Loan Advances Facilities to, each of the Lender Parties from time to time (the ~~“Register”~~"REGISTER"). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the ~~Borrowers~~Borrower, the ~~Agents~~ Administrative Agent and the ~~Lenders~~ Lender Parties shall treat each Person whose name is recorded in the Register as a Lender Party hereunder for all purposes of this Agreement. The Register shall be available for inspection by the ~~Borrowers~~ Borrower, any of the Agents or any ~~Agent or any~~ of the Lender Parties at any reasonable time and from time to time during normal business hours and upon reasonable prior notice. (e) Notwithstanding anything to the contrary contained in clause (b) above, the Term Loan Advances (including the Notes evidencing such Term Loan Advances) are registered obligations and the right, title, and interest of the Lenders and their assignees in and to such Term Loan Advances shall be transferable only upon notation of such transfer in the Register. A Note shall only evidence the Lender’s or an assignee’s right title and interest in and to the related Term Loan Advance, and in no event is any such Note to be considered a bearer instrument or obligation. This Section 8.07 shall be construed so that the Term Loan Advances are at all times maintained in “registered form” within the meaning of sections 163(f), 871(h)(2) and 881(c)(2) of the Internal Revenue Code and any related regulations (or any successor provisions of the Internal Revenue Code or such regulations). Solely for purposes of this and for tax purposes only, the Administrative Agent shall act as each Borrower’s agent for purposes of maintaining such notations of transfer in the Register. (f) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender or Issuing Bank and an assignee, together with any Note or Notes subject to such assignment, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit C C-1 hereto, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to ~~BMCA and each other Agent~~the Borrower. In the case of any assignment by a Lender, within five Business Days after its receipt of such notice, the ~~Borrowers~~Borrower, at ~~their~~ its own expense, ~~shall, if requested by the assignee,~~ shall execute and deliver to the Administrative Agent in exchange for the surrendered Note or Notes ~~an amended and restated~~ a new Note ~~(which shall be marked “Amended and Restated”)~~ or Notes from the Borrower payable to or to the order of such Eligible Assignee in an amount equal to the ~~Term Loan~~ Commitment assumed by it under each Facility pursuant to such Assignment and Acceptance and, if ~~any~~ the assigning Lender has retained a ~~Term Loan~~ Commitment ~~hereunder~~ under such ~~Facility and has requested~~ Facility, a ~~replacement Note, an amended and restated~~ new Note or Notes from the Borrower payable to or to the order of ~~such~~ the assigning Lender in an amount equal to the ~~Term Loan~~ Commitment retained by it ~~hereunder~~under such Facility. ~~Such amended and restated~~ Each of the 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 Assignment and Acceptance and shall otherwise be in substantially the form of Exhibit A A-1, Xxxxxxx X-0 xx Exhibit A-3 hereto, as appropriate. (g) Each of the Lender parties may sell participations to one or more Persons (other than any of the Loan ~~Party~~ Parties or any of ~~its~~ their respective Affiliates) in or to all or a portion of its rights and obligations under this Agreement (~~including~~ including, without limitation, all or a portion of its ~~Term Loan~~ Commitment or Commitments, the ~~Term Loan~~ Advances owing to it and the Note or ~~Notes (~~Notes, if any) , held by it); provided, however, ~~that~~ that: (i) such ~~Lender’s~~ Lender Party's obligations under this Agreement (~~including~~ including, without limitation, its ~~Term Loan~~ Commitments) shall remain unchanged, ; (ii) such Lender Party shall remain solely responsible to the other parties hereto for the performance of such obligations, ; (iii) such Lender Party shall remain the holder of any such Note for all purposes of this Agreement, ; (iv) the ~~Borrowers~~Borrower, the ~~Agents~~ Administrative Agent and the other ~~Lenders~~ Lender Parties shall continue to deal solely and directly with such Lender Party in connection with such ~~Lender’s~~ Lender Party's rights and obligations under and in respect of this Agreement and the other Loan Documents; and (v) no participant under any such participation shall have any right to approve any amendment or waiver of any provision of any of the Loan ~~Document~~Documents, or any consent to any departure by any of the Loan ~~Party~~ Parties therefrom, except to the extent that such amendment, waiver or consent ~~requires~~ would reduce the ~~consent~~ principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, or postpone any date scheduled for 127 -124- any payment of ~~all Lenders~~principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation. (h) Any of the Lender Parties may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section 8.07, disclose to the assignee or participant or proposed assignee or ~~participant~~ participant, any information relating to the ~~Borrowers~~ Borrower or any of its Subsidiaries or to any aspect of the Transaction, furnished to such Lender Party by or on behalf of the ~~Borrowers~~Borrower or any of its Subsidiaries; provided, however, 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 received by it from such Lender Party on substantially the same terms as those set forth in ~~accordance with the terms of~~ Section 8.09. (i) ~~Notwithstanding any other provision set forth in this Agreement, any~~ Any of the Lender Parties may at any time create a security interest in all or any portion of its rights under this Agreement (~~including~~ including, without limitation, the ~~Term Loan~~ 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 System. (j) Notwithstanding anything to the contrary contained herein, any Lender that is a fund that invests in bank loans may create a security interest in all or any portion of the Term Loan Advances owing to it and the Note or Notes held by it to the trustee for holders of obligations owed, or securities issued, by such fund as security for such obligations or securities, provided, that unless and until such trustee actually becomes a Lender in compliance with the other provisions of this Section 8.07, (i) no such pledge shall release the pledging Lender from any of its obligations under the Loan Documents and (ii) such trustee shall not be entitled to exercise any of the rights of a Lender under the Loan Documents even though such trustee may have acquired ownership rights with respect to the pledged interest through foreclosure or otherwise. (k) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Lender”) may grant to a special purpose funding vehicle identified as such in writing from time to time by the Granting Lender to the Administrative Agent and BMCA (an “SPC”) the option to provide all or any part of any Term Loan Advance that such Granting Lender would otherwise be obligated to make pursuant to this Agreement, provided that (i) nothing herein shall constitute a commitment by any SPC to fund any Term Loan Advance, and (ii) if an SPC elects not to exercise such option or otherwise fails to make all or any part of such Term Loan Advance, the Granting Lender shall be obligated to make such Term Loan Advance pursuant to the terms hereof. The making of an Advance by an SPC hereunder shall utilize the Term Loan Commitment of the Granting Lender to the same extent, and as if, such Term Loan Advance were made by such Granting Lender. Each party hereto hereby agrees that (i) no SPC shall be liable for any indemnity or similar payment obligation under this Agreement for which a Lender would be liable, (ii) no SPC shall be entitled to the benefits of Sections 2.09 and 2.11 (or any other increased costs protection provision) and (iii) the Granting Bank shall for all purposes, including the approval of any amendment or waiver of any provision of any Loan Document, remain the Lender of record hereunder. In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior Debt of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency, or liquidation proceeding under the laws of the United States or any State thereof. Notwithstanding anything to the contrary contained in this Agreement, any SPC may (i) with notice to, but without prior consent of, BMCA and the Administrative Agent and with the payment of a processing fee of $500 and without paying any processing fee therefor, assign all or any portion of its interest in any Term Loan Advance to the Granting Lender and (ii) disclose on a confidential basis any non-public information relating to its funding of Term Loan Advance to any rating agency, commercial paper dealer or provider of any surety or guarantee or credit or liquidity enhancement to such SPC. This subsection (k) may not be amended without the prior written consent of each Granting Lender, all or any part of whose Term Loan Advances are being funded by the SPC at the time of such amendment.

Appears in 1 contract

Samples: Credit Agreement (Medpartners Inc)

Assignments and Participations. (a) Each Lender ~~may~~may and, so long as no Default shall have occurred and be continuing, if demanded by the Company (following a demand by such Lender pursuant to Section 2.11 or 2.14) upon at least ~~five~~ 5 Business Days’ notice to such Lender and the ~~Administrative~~ Agent, will assign to one or more ~~Eligible Assignees~~ Persons all or a portion of its rights and obligations under this Agreement (~~including~~ including, without limitation, all or a portion of its ~~Term Loan~~ Commitment, its Unissued Letter of Credit Commitment, the ~~Term Loan~~ Advances owing to it it, its participations in Letters of Credit and ~~the~~ any Note or Notes held by it); provided, however, that (i) each such assignment shall be of a ~~uniform~~constant, and not a varying, percentage of all rights and obligations under this ~~Agreement~~Agreement related to the Commitments or the Unissued Letter of Credit Commitment assigned thereby, (ii) except in the case of an assignment to a Person that, immediately prior to such assignment, was a ~~Lender, an Affiliate of any Lender or an Approved Fund of any~~ Lender or an assignment of all of a Lender’s rights and obligations under this Agreement, the ~~aggregate~~ amount of (x) the ~~Term Loan Commitments or Term Loan Advances~~ Commitment of the assigning Lender being assigned ~~to such Eligible Assignee~~ pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $5,000,000 or an integral multiple of $1,000,000 in excess thereof and (or y) the Unissued Letter of Credit Commitment of the assigning Lender being assigned pursuant to each such ~~lesser amount~~ assignment (determined as ~~shall be approved by~~ of the ~~Administrative Agent and, so long as no Default shall have occurred~~ date of the Assignment and ~~be continuing at the time of effectiveness of~~ Acceptance with respect to such assignment~~, BMCA)~~) shall in no event be less than $1,000,000 or an integral multiple of $1,000,000 in excess thereof, (iii) each such assignment shall be to an Eligible Assignee, (iv) ~~except in~~ each such assignment made as a result of a demand by the ~~case of~~ Company pursuant to this Section 9.07(a) shall be arranged by the Company after consultation with the Agent and shall be either an assignment of all of the rights and obligations of the assigning Lender under this Agreement or an assignment of a portion of such rights and obligations made concurrently with another such assignment or other such assignments that together cover all of the rights and obligations of the assigning Lender under this Agreement, (v) no Lender shall be obligated to make any such assignment as a result of a demand by ~~a Person that, immediately prior~~ the Company pursuant to this Section 9.07(a) unless and until such Lender shall have received one or more payments from either the Company or one or more Eligible Assignees in an aggregate amount at least equal to the aggregate outstanding principal amount of the Advances owing to such ~~assignment, was a~~ Lender, together with accrued interest thereon to ~~one~~ the date of ~~its Affiliates, no such assignments shall be permitted without the consent of the Administrative Agent and, so long as no Default shall have occurred and be continuing at the time of effectiveness~~ payment of such ~~assignment~~principal amount and all other amounts payable to such Lender under this Agreement, ~~BMCA (in each case, which consents shall not be unreasonably withheld)~~ and (vvi) the parties to each such assignment shall execute and deliver to the ~~Administrative~~ Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together with any Note ~~or Notes~~ subject to such assignment and a processing and recordation fee of $~~3,500.~~ 3,500 payable by the parties to each such assignment, provided, however, that in the case of each assignment made as a result of a demand by the Company, such recordation fee shall be payable by the Company except that no such recordation fee shall be payable in the case of an assignment made at the request of the Company to an Eligible Assignee that is an existing Lender, and (bvii) any Lender may, without the approval of the Company or the Agent, assign all or a portion of its rights to any of its Affiliates or to another Lender unless on the date of such assignment the assignee would be entitled to make a demand pursuant to Section 2.11 or 2.14, in which case such assignment shall be permitted only if the assignee shall waive in a manner satisfactory to the Company in form and substance its rights to make such a demand. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in ~~such~~ each Assignment and Acceptance, (ix) the assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, have the rights and obligations of a Lender hereunder and (iiy) the Lender assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (other than its rights under ~~Sections 2.09~~Section 2.11, ~~2.11~~ 2.14 and ~~8.04~~ 9.04 to the extent any claim thereunder relates to an event arising prior to such assignment) and be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all of or the remaining portion of an assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto). (cb) By executing and delivering an Assignment and Acceptance, ~~each~~ the Lender assignor thereunder and ~~each~~ the assignee thereunder confirm to and agree with each other and the other parties ~~thereto and~~ hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with ~~any Loan Document~~ this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of, or the perfection or priority of any lien or security interest created or purported to be created under or in connection with, ~~any Loan Document~~ this Agreement or any other instrument or document furnished pursuant ~~thereto~~hereto; (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of the Company or any ~~Loan Party~~ other Borrower or the performance or observance by the Company or any ~~Loan Party~~ other Borrower of any of its obligations under ~~any Loan Document~~ this Agreement or any other instrument or document furnished pursuant ~~thereto~~hereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 4.01 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) such assignee will, independently and without reliance upon any Agent, such assigning Lender or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) such assignee confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes each Agent to take such action as agent on its behalf and to exercise such powers and discretion under the Loan Documents as are delegated to such Agent by the terms hereof and thereof, together with such powers and discretion as are reasonably incidental thereto; and (vii) such assignee agrees that it will perform in accordance with their terms all of the obligations that by the terms of this Agreement are required to be performed by it as a Lender. (d) The Administrative Agent acting for this purpose (but only for this purpose) as the agent of the Borrowers, shall maintain at its address referred to in Section 8.02 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 Lenders and the Term Loan Commitment of, and principal amount of the Term Loan Advances 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 Borrowers, the Agents and the Lenders shall treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrowers or any Agent or any Lender at any reasonable time and from time to time upon reasonable prior notice. (e) Notwithstanding anything to the contrary contained in clause (b) above, the Term Loan Advances (including the Notes evidencing such Term Loan Advances) are registered obligations and the right, title, and interest of the Lenders and their assignees in and to such Term Loan Advances shall be transferable only upon notation of such transfer in the Register. A Note shall only evidence the Lender’s or an assignee’s right title and interest in and to the related Term Loan Advance, and in no event is any such Note to be considered a bearer instrument or obligation. This Section 8.07 shall be construed so that the Term Loan Advances are at all times maintained in “registered form” within the meaning of sections 163(f), 871(h)(2) and 881(c)(2) of the Internal Revenue Code and any related regulations (or any successor provisions of the Internal Revenue Code or such regulations). Solely for purposes of this and for tax purposes only, the Administrative Agent shall act as each Borrower’s agent for purposes of maintaining such notations of transfer in the Register. (f) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee, together with any Note or Notes subject to such assignment, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit C hereto, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to BMCA and each other Agent. In the case of any assignment by a Lender, within five Business Days after its receipt of such notice, the Borrowers, at their own expense, shall, if requested by the assignee, execute and deliver to the Administrative Agent in exchange for the surrendered Note or Notes an amended and restated Note (which shall be marked “Amended and Restated”) to the order of such Eligible Assignee in an amount equal to the Term Loan Commitment assumed by it under each Facility pursuant to such Assignment and Acceptance and, if any assigning Lender has retained a Term Loan Commitment hereunder under such Facility and has requested a replacement Note, an amended and restated Note to the order of such assigning Lender in an amount equal to the Term Loan Commitment retained by it hereunder. Such amended and restated 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 Assignment and Acceptance and shall otherwise be in substantially the form of Exhibit A hereto. (g) Each Lender may sell participations to one or more Persons (other than any Loan Party or any of its Affiliates) in or to all or a portion of its rights and obligations under this Agreement (including all or a portion of its Term Loan Commitments, the Term Loan Advances owing to it and the Note or Notes (if any) held by it); provided, however, that (i) such Lender’s obligations under this Agreement (including its Term Loan Commitments) shall remain unchanged, (ii) 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, (iv) the Borrowers, the Agents and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and (v) no participant under any such participation shall have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent requires the consent of all Lenders. (h) Any Lender may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section 8.07, disclose to the assignee or participant or proposed assignee or participant any information relating to the Borrowers furnished to such Lender by or on behalf of the Borrowers; provided, however, 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 received by it from such Lender in accordance with the terms of Section 8.09. (i) Notwithstanding any other provision set forth in this Agreement, any Lender may at any time create a security interest in all or any portion of its rights under this Agreement (including the Term Loan 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 System. (j) Notwithstanding anything to the contrary contained herein, any Lender that is a fund that invests in bank loans may create a security interest in all or any portion of the Term Loan Advances owing to it and the Note or Notes held by it to the trustee for holders of obligations owed, or securities issued, by such fund as security for such obligations or securities, provided, that unless and until such trustee actually becomes a Lender in compliance with the other provisions of this Section 8.07, (i) no such pledge shall release the pledging Lender from any of its obligations under the Loan Documents and (ii) such trustee shall not be entitled to exercise any of the rights of a Lender under the Loan Documents even though such trustee may have acquired ownership rights with respect to the pledged interest through foreclosure or otherwise. (k) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Lender”) may grant to a special purpose funding vehicle identified as such in writing from time to time by the Granting Lender to the Administrative Agent and BMCA (an “SPC”) the option to provide all or any part of any Term Loan Advance that such Granting Lender would otherwise be obligated to make pursuant to this Agreement, provided that (i) nothing herein shall constitute a commitment by any SPC to fund any Term Loan Advance, and (ii) if an SPC elects not to exercise such option or otherwise fails to make all or any part of such Term Loan Advance, the Granting Lender shall be obligated to make such Term Loan Advance pursuant to the terms hereof. The making of an Advance by an SPC hereunder shall utilize the Term Loan Commitment of the Granting Lender to the same extent, and as if, such Term Loan Advance were made by such Granting Lender. Each party hereto hereby agrees that (i) no SPC shall be liable for any indemnity or similar payment obligation under this Agreement for which a Lender would be liable, (ii) no SPC shall be entitled to the benefits of Sections 2.09 and 2.11 (or any other increased costs protection provision) and (iii) the Granting Bank shall for all purposes, including the approval of any amendment or waiver of any provision of any Loan Document, remain the Lender of record hereunder. In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior Debt of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency, or liquidation proceeding under the laws of the United States or any State thereof. Notwithstanding anything to the contrary contained in this Agreement, any SPC may (i) with notice to, but without prior consent of, BMCA and the Administrative Agent and with the payment of a processing fee of $500 and without paying any processing fee therefor, assign all or any portion of its interest in any Term Loan Advance to the Granting Lender and (ii) disclose on a confidential basis any non-public information relating to its funding of Term Loan Advance to any rating agency, commercial paper dealer or provider of any surety or guarantee or credit or liquidity enhancement to such SPC. This subsection (k) may not be amended without the prior written consent of each Granting Lender, all or any part of whose Term Loan Advances are being funded by the SPC at the time of such amendment.own

Appears in 1 contract

Samples: Credit Agreement (Interpublic Group of Companies, Inc.)

Assignments and Participations. (a) Each Lender may, upon ten days’ notice to the Agent (and in the case of an assignment of any Swing Line Commitment, the Sub-Agent) and with the prior consent of each Swing Line Lender (in the case of any assignment of any Revolving Credit Commitment) and the Company (which consents shall not be unreasonably withheld or delayed) and, if demanded by the Company pursuant to Section 2.05 (b) or 2.06(b), upon at least ~~five~~ 20 Business Days’ notice to such Lender and the ~~Administrative~~ Agent, will assign to one or more ~~Eligible Assignees~~ Persons all or a portion of its rights and obligations under this Agreement (~~including~~ including, without limitation, all or a portion of its ~~Term Loan~~ Revolving Credit Commitment, the ~~Term Loan~~ Revolving Credit Advances owing to it and the Revolving Credit Note or Notes held by it or, in the case of a Swing Line Lender, all or a portion of its Swing Line Commitment and the Swing Line Advances owing to it); provided, however, that (i) each such assignment shall be of a ~~uniform~~constant, and not a varying, percentage of all rights and obligations under this Agreement, (ii) except in the case of an assignment to a Person that, immediately prior to such assignment, was a ~~Lender, an Affiliate of any~~ Lender or an ~~Approved Fund~~ affiliate of ~~any Lender~~ a Lender, or an assignment of all of a Lender’s rights and obligations under this Agreement, the ~~aggregate~~ amount of the ~~Term Loan Commitments~~ Revolving Credit Commitment or ~~Term Loan Advances~~ Swing Line Commitment (as applicable) of the assigning Xxxxxx being assigned ~~to such Eligible Assignee~~ pursuant to each such assignment (determined as of the date of the Assignment and ~~Acceptance~~ Assumption with respect to such assignment) shall in no event be less than $5,000,000 (or such lesser amount as shall be approved by the Administrative Agent and, so long as no Default shall have occurred and be continuing at the time of effectiveness of such assignment, BMCA)10,000,000, (iii) each such assignment shall be to an Eligible Assignee, (iv) ~~except in~~ each such assignment made as a result of a demand by the ~~case of~~ Company pursuant to this Section 8.07(a) shall be arranged by the Company after consultation with the Agent and shall be either an assignment of all of the rights and obligations of the assigning Lender under this Agreement or an assignment of a portion of such rights and obligations made concurrently with another such assignment or other such assignments that together cover all of the rights and obligations of the assigning Lender under this Agreement, (v) no Lender shall be obligated to make any such assignment as a result of a demand by ~~a Person that, immediately prior~~ the Company pursuant to this Section 8.07(a) unless and until such Lender shall have received one or more payments from either the Company or one or more Eligible Assignees in an aggregate amount at least equal to the aggregate outstanding principal amount of the Advances owing to such ~~assignment, was a~~ Lender, together with accrued interest thereon to ~~one~~ the date of ~~its Affiliates, no such assignments shall be permitted without the consent of the Administrative Agent and, so long as no Default shall have occurred and be continuing at the time of effectiveness~~ payment of such ~~assignment~~principal amount and all other amounts payable to such Lender under this Agreement, ~~BMCA~~ (~~in each case, which consents shall not be unreasonably withheld) and (v~~vi) the parties to each such assignment shall execute and deliver to the ~~Administrative~~ Agent, for its acceptance and recording in the ~~Register~~Register (as defined in clause (d) below), an Assignment and ~~Acceptance~~Assumption, together with any Revolving Credit Note ~~or Notes~~ requested pursuant to Section 2.13(e) subject to such assignment and a processing and recordation fee of $3,500. , and (bvii) the Eligible Assignee shall complete, execute and deliver to the Borrowers and Agent the appropriate tax form pursuant to Section 2.14. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in ~~such~~ each Assignment and ~~Acceptance~~Assumption and upon compliance with clause (vii) of the previous sentence, (ix) 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~~Assumption, have the rights and obligations of a Lender hereunder and (iiy) the Lender assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and ~~Acceptance~~Assumption, relinquish its rights ~~(other than its rights under Sections 2.09, 2.11 and 8.04 to the extent any claim thereunder relates to an event arising prior to such assignment)~~ and be released from its obligations under this Agreement (and, in the case of an Assignment and ~~Acceptance~~ Assumption covering all of or the remaining portion of an assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto); provided that an assigning Lender’s rights to indemnification and reimbursement pursuant to Section 8.04 and its rights and obligations under Sections 2.11 and 2.14 shall survive assignment hereunder. Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Lender”) may grant to a special purpose vehicle (an “SPV”) of such Granting Lender, identified as such in writing from time to time by the Granting Lender to the Agent and the Company, the option to provide to the Borrowers all or any part of any Advance that such Granting Lender would otherwise be obligated to make to the Borrowers pursuant to Section 2.01, provided that (i) nothing herein shall constitute a commitment by any SPV to make any Advance, (ii) if an SPV elects not to exercise such option or otherwise fails to provide all or any part of such Advance, the Granting Lender shall be obligated to make such Advance pursuant to the terms hereof and (iii) the Borrowers may bring any proceeding against either the Granting Lender or the SPV in order to enforce any rights of the Borrowers hereunder. The making of an Advance by an SPV hereunder shall utilize the Commitment of the Granting Lender to the same extent, and as if, such Advance were made by the Granting Lender. Each party hereto hereby agrees that no SPV shall be liable for any payment under this Agreement for which a Lender would otherwise be liable, for so long as, and to the extent, the related Granting Lender makes such payment. In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior indebtedness of any SPV, it will not institute against, or join any other person in instituting against, such SPV any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings or similar proceedings under the laws of the United States or any State thereof arising out of any claim against such SPV under this Agreement. In addition, notwithstanding anything to the contrary contained in this Section, any SPV may with notice to, but without the prior written consent of, the Company or the Agent and without paying any processing fee therefor, assign all or a portion of its interests in any Advances to its Granting Lender or to any financial institutions (consented to by the Company and the Agent) providing liquidity and/or credit support (if any) with respect to commercial paper issued by such SPV to fund such Advances and such SPV may disclose, on a confidential basis, confidential information with respect to the Company and its Subsidiaries to any rating agency, commercial paper dealer or provider of a surety, guarantee or credit liquidity enhancement to such SPV. This paragraph may not be amended without the consent of any SPV at the time holding Advances under this Agreement. (cb) By executing and delivering an Assignment and ~~Acceptance~~Assumption, ~~each~~ the Lender assignor thereunder and ~~each~~ the assignee thereunder confirm to and agree with each other and the other parties ~~thereto and~~ hereto as follows: (i) other than as provided in such Assignment and ~~Acceptance~~Assumption, 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 ~~any Loan Document~~ this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of, or the perfection or priority of any lien or security interest created or purported to be created under or in connection with, ~~any Loan Document~~ this Agreement or any other instrument or document furnished pursuant ~~thereto~~hereto; (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any ~~Loan Party~~ Borrower or the performance or observance by any ~~Loan Party~~ Borrower of any of its obligations under ~~any Loan Document~~ this Agreement or any other instrument or document furnished pursuant ~~thereto~~hereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 4.01 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and ~~Acceptance~~Assumption; (iv) such assignee will, independently and without reliance upon ~~any~~ the Agent, such assigning Lender or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) such assignee confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes ~~each~~ the Agent to take such action as agent on its behalf and to exercise such powers and discretion under ~~the Loan Documents~~ this Agreement as are delegated to ~~such~~ the Agent by the terms ~~hereof and thereof~~hereof, together with such powers and discretion as are reasonably incidental thereto; and (vii) such assignee agrees that it will perform in accordance with their terms all of the obligations that by the terms of this Agreement are required to be performed by it as a Lender. (c) Upon its receipt of an Assignment and Assumption executed by an assigning Lender and an assignee representing that it is an Eligible Assignee, together with any Revolving Credit Note or Notes subject to such assignment, the Agent shall, if such Assignment and Assumption has been completed and is in substantially the form of Exhibit C hereto, (i) accept such Assignment and Assumption, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the Company. The relevant Borrower, at its own expense, shall if so requested pursuant to Section 2.13(e) execute and deliver to the Agent in exchange for the surrendered Revolving Credit Note a new Revolving Credit Note to the order of such Eligible Assignee in an amount equal to the Commitment assumed by it pursuant to such Assignment and Assumption and, if the assigning Lender has retained a Commitment hereunder, a new Revolving Credit Note to the order of the assigning Lender in an amount equal to the Commitment retained by it hereunder. Such new Revolving Credit Note or Notes shall be in an aggregate principal amount equal to the aggregate principal amount of such surrendered Revolving Credit Note or Notes, shall be dated the effective date of such Assignment and Assumption and shall otherwise be in substantially the form of Exhibit A hereto. (d) The ~~Administrative~~ Agent acting solely for this purpose ~~(but only for this purpose)~~ as ~~the~~ a nonfiduciary agent of the ~~Borrowers,~~ relevant Borrower shall maintain at its address referred to in Section 8.02 if such address is within the United States and, if not, at one of its offices located within the United States a copy of each Assignment and ~~Acceptance~~ Assumption delivered to and accepted by it and a register for the recordation of the names and addresses of the Lenders ~~and~~ and, with respect to Xxxxxxx, the ~~Term Loan~~ Commitment of, and principal amount of the ~~Term Loan~~ 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 Borrowers~~each Borrower, the ~~Agents~~ Agent and the Lenders ~~shall~~ 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~~ Company or any ~~Agent or any Lender~~ Lender, as to its Commitment, at any reasonable time and from time to time upon reasonable prior notice. (e) ~~Notwithstanding anything~~ Each Lender may, with the prior consent of the Company (which consent shall not be unreasonably withheld or delayed), upon notice to the ~~contrary contained in clause (b) above~~Agent, the Term Loan Advances (including the Notes evidencing such Term Loan Advances) are registered obligations and the right, title, and interest of the Lenders and their assignees in and to such Term Loan Advances shall be transferable only upon notation of such transfer in the Register. A Note shall only evidence the Lender’s or an assignee’s right title and interest in and to the related Term Loan Advance, and in no event is any such Note to be considered a bearer instrument or obligation. This Section 8.07 shall be construed so that the Term Loan Advances are at all times maintained in “registered form” within the meaning of sections 163(f), 871(h)(2) and 881(c)(2) of the Internal Revenue Code and any related regulations (or any successor provisions of the Internal Revenue Code or such regulations). Solely for purposes of this and for tax purposes only, the Administrative Agent shall act as each Borrower’s agent for purposes of maintaining such notations of transfer in the Register. (f) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee, together with any Note or Notes subject to such assignment, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit C hereto, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to BMCA and each other Agent. In the case of any assignment by a Lender, within five Business Days after its receipt of such notice, the Borrowers, at their own expense, shall, if requested by the assignee, execute and deliver to the Administrative Agent in exchange for the surrendered Note or Notes an amended and restated Note (which shall be marked “Amended and Restated”) to the order of such Eligible Assignee in an amount equal to the Term Loan Commitment assumed by it under each Facility pursuant to such Assignment and Acceptance and, if any assigning Lender has retained a Term Loan Commitment hereunder under such Facility and has requested a replacement Note, an amended and restated Note to the order of such assigning Lender in an amount equal to the Term Loan Commitment retained by it hereunder. Such amended and restated 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 Assignment and Acceptance and shall otherwise be in substantially the form of Exhibit A hereto. (g) Each Lender may sell participations to one or more ~~Persons~~ banks or other entities (other than ~~any Loan Party~~ the Company or any Affiliate of ~~its Affiliates~~the Company) in or to all or a portion of its rights and obligations under this Agreement (~~including~~ including, without limitation, all or a portion of its ~~Term Loan Commitments~~Commitment, the ~~Term Loan~~ Advances owing to it (including such Lender’s participations in Swing Line Advances) and the Note or Notes ~~(if any)~~ held by it); provided, however, that (i) such Lender’s obligations under this Agreement (~~including~~ including, without limitation, its ~~Term Loan Commitments~~Commitment hereunder) shall remain unchanged, (ii) 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, (iv) the Borrowers, the ~~Agents~~ Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and (v) no participant under any such participation shall have any right to approve any amendment or waiver of any provision of this Agreement or any ~~Loan Document~~Note, or any consent to any departure by any ~~Loan Party~~ Borrower therefrom, except to the extent that such amendment, waiver or consent ~~requires~~ would reduce the ~~consent~~ principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, postpone any date fixed for any payment of principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation or release the Company from its obligations hereunder, including, without limitation, its obligations under Article IX. Each Lender that sells a participation shall, acting solely for this purpose as a nonfiduciary agent of the relevant Borrower, maintain a register at one of its offices located within the United States on which it enters the name and address of each participant and the Commitment of, and principal amount of the Advances owing to, each participant from time to time (the “Participant Register”); provided that no Lender shall have any obligation to disclose all ~~Lenders~~or any portion of the Participant Register to any Person (including the identity of any participant or any information relating to a participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive and binding, 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. (hf) Any Lender may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section 8.07, disclose to the assignee or participant or proposed assignee or participant any information relating to ~~the Borrowers~~ any Borrower furnished to such Lender by or on behalf of ~~the Borrowers~~any Borrower; ~~provided, however,~~ 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 Borrowers received by it from such ~~Lender in accordance with the terms of Section 8.09~~Lender. (ig) Notwithstanding any other provision set forth in this Agreement, any Lender may at any time create a security interest in all or any portion of its rights under this Agreement (~~including~~ including, without limitation, the ~~Term Loan~~ 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 System. (j) Notwithstanding anything to the contrary contained herein, any Lender that is a fund that invests in bank loans may create a security interest in all or any portion of the Term Loan Advances owing to it and the Note or Notes held by it to the trustee for holders of obligations owed, or securities issued, by such fund as security for such obligations or securities, provided, that unless and until such trustee actually becomes a Lender in compliance with the other provisions of this Section 8.07, (i) no such pledge shall release the pledging Lender from any of its obligations under the Loan Documents and (ii) such trustee shall not be entitled to exercise any of the rights of a Lender under the Loan Documents even though such trustee may have acquired ownership rights with respect to the pledged interest through foreclosure or otherwise. (k) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Lender”) may grant to a special purpose funding vehicle identified as such in writing from time to time by the Granting Lender to the Administrative Agent and BMCA (an “SPC”) the option to provide all or any part of any Term Loan Advance that such Granting Lender would otherwise be obligated to make pursuant to this Agreement, provided that (i) nothing herein shall constitute a commitment by any SPC to fund any Term Loan Advance, and (ii) if an SPC elects not to exercise such option or otherwise fails to make all or any part of such Term Loan Advance, the Granting Lender shall be obligated to make such Term Loan Advance pursuant to the terms hereof. The making of an Advance by an SPC hereunder shall utilize the Term Loan Commitment of the Granting Lender to the same extent, and as if, such Term Loan Advance were made by such Granting Lender. Each party hereto hereby agrees that (i) no SPC shall be liable for any indemnity or similar payment obligation under this Agreement for which a Lender would be liable, (ii) no SPC shall be entitled to the benefits of Sections 2.09 and 2.11 (System or any other increased costs protection provision) and (iii) the Granting Bank shall for all purposes, including the approval of any amendment or waiver of any provision of any Loan Document, remain the Lender of record hereunder. In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior Debt of any SPC, it will not institute against, or join any other person in instituting against, central bank having jurisdiction over such SPC any bankruptcy, reorganization, arrangement, insolvency, or liquidation proceeding under the laws of the United States or any State thereof. Notwithstanding anything to the contrary contained in this Agreement, any SPC may (i) with notice to, but without prior consent of, BMCA and the Administrative Agent and with the payment of a processing fee of $500 and without paying any processing fee therefor, assign all or any portion of its interest in any Term Loan Advance to the Granting Lender and (ii) disclose on a confidential basis any non-public information relating to its funding of Term Loan Advance to any rating agency, commercial paper dealer or provider of any surety or guarantee or credit or liquidity enhancement to such SPC. This subsection (k) may not be amended without the prior written consent of each Granting Lender~~, all or any part of whose Term Loan Advances are being funded by the SPC at the time of such amendment~~.

Appears in 1 contract

Samples: Credit Agreement (Pepsico Inc)

Assignments and Participations. (a) Each Lender may, with the consent of the Agent and the Company (which consent shall not be unreasonably withheld or delayed) and, if demanded by the Company (following a demand by such Lender pursuant to Section 2.11 or 2.14, a notice by such Lender under Section 2.12 or the failure of such Lender to perform its obligations hereunder) so long as no Event of Default has occurred and is continuing, upon at least five Business Days’ notice to such Lender and the ~~Administrative~~ Agent, will assign to one or more ~~Eligible Assignees~~ Persons all or a portion of its rights and obligations under this Agreement (~~including~~ including, without limitation, all or a portion of its Term Loan ~~Commitment, the Term Loan Advances~~ owing to it and the Term Note or Term Notes held by it); provided, however, that (i) each such assignment shall be of a ~~uniform~~constant, and not a varying, percentage of all rights and obligations under this Agreement, (ii) except in the case of an assignment to a Person that, immediately prior to such assignment, was a ~~Lender, an Affiliate of any Lender or an Approved Fund of any~~ Lender or an assignment of all of a Lender’s rights and obligations under this Agreement, the ~~aggregate~~ amount of the Term Loan ~~Commitments or Term Loan Advances~~ of the assigning Lender being assigned ~~to such Eligible Assignee~~ pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $5,000,000 (or ~~such lesser amount as shall be approved by the Administrative Agent and, so long as no Default shall have occurred and be continuing at the time~~ an integral multiple of ~~effectiveness of such assignment, BMCA)~~$1,000,000 in excess thereof, (iii) each such assignment shall be to an Eligible Assignee, (iv) except in the case of an assignment by a Person that, immediately prior to such assignment, was a Lender, to one of its Affiliates, no such assignments shall be permitted without the consent of the Administrative Agent and, so long as no Default shall have occurred and be continuing at the time of effectiveness of such assignment, BMCA (in each case, which consents shall not be unreasonably withheld) and (v) the parties to each such assignment shall execute and deliver to the ~~Administrative~~ Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together with any Term Note ~~or Notes~~ subject to such assignment and a processing and recordation fee of $~~3,500.~~ 3,500 payable by the parties to each such assignment, provided, however, that in the case of an assignment made as a result of a demand by the Company, such recordation fee shall be payable by the Company except that no such recordation fee shall be payable in the case of an assignment made at the request of the Company to an Eligible Assignee that is an existing Lender, and (bv) any Lender may, without the approval of the Company or the Agent, assign all or a portion of its rights to any of its Affiliates. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in ~~such~~ each Assignment and Acceptance, (ix) the assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, have the rights and obligations of a Lender hereunder and (iiy) the Lender assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (other than its rights under Sections ~~2.09~~2.11, ~~2.11~~ 2.14 and ~~8.04~~ 9.4 to the extent any claim thereunder relates to an event arising prior to such assignment) and be released from its obligations (other than its obligations under Section 8.4 to the extent any claim thereunder relates to an event arising prior to such assignment) under this Agreement (and, in the case of an Assignment and Acceptance covering all of or the remaining portion of an assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto). (cb) By executing and delivering an Assignment and Acceptance, ~~each~~ the Lender assignor thereunder and ~~each~~ the assignee thereunder confirm to and agree with each other and the other parties ~~thereto and~~ hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with ~~any Loan Document~~ this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value ~~of, or the perfection or priority~~ of ~~any lien or security interest created or purported to be created under or in connection with, any Loan Document~~ this Agreement or any other instrument or document furnished pursuant ~~thereto~~hereto; (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of ~~any Loan Party~~ the Company or the performance or observance by ~~any Loan Party~~ the Borrower of any of ~~its~~ their obligations under ~~any Loan Document~~ this Agreement or any other instrument or document furnished pursuant ~~thereto~~hereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section ~~4.01~~ 4.1 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) such assignee will, independently and without reliance upon ~~any~~ the Agent, such assigning Lender or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) such assignee confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes ~~each~~ the Agent to take such action as agent on its behalf and to exercise such powers and discretion under ~~the Loan Documents~~ this Agreement as are delegated to ~~such~~ the Agent by the terms ~~hereof and thereof~~hereof, together with such powers and discretion as are reasonably incidental thereto; and (vii) such assignee agrees that it will perform in accordance with their terms all of the obligations that by the terms of this Agreement are required to be performed by it as a Lender. (d) The Administrative Agent acting for this purpose (but only for this purpose) as the agent of the Borrowers, shall maintain at its address referred to in Section 8.02 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 Lenders and the Term Loan Commitment of, and principal amount of the Term Loan Advances 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 Borrowers, the Agents and the Lenders shall treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrowers or any Agent or any Lender at any reasonable time and from time to time upon reasonable prior notice. (e) Notwithstanding anything to the contrary contained in clause (b) above, the Term Loan Advances (including the Notes evidencing such Term Loan Advances) are registered obligations and the right, title, and interest of the Lenders and their assignees in and to such Term Loan Advances shall be transferable only upon notation of such transfer in the Register. A Note shall only evidence the Lender’s or an assignee’s right title and interest in and to the related Term Loan Advance, and in no event is any such Note to be considered a bearer instrument or obligation. This Section 8.07 shall be construed so that the Term Loan Advances are at all times maintained in “registered form” within the meaning of sections 163(f), 871(h)(2) and 881(c)(2) of the Internal Revenue Code and any related regulations (or any successor provisions of the Internal Revenue Code or such regulations). Solely for purposes of this and for tax purposes only, the Administrative Agent shall act as each Borrower’s agent for purposes of maintaining such notations of transfer in the Register. (fc) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an ~~assignee~~assignee representing that it is an Eligible Assignee, together with any Term Note or Term Notes subject to such assignment, the ~~Administrative~~ Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit C hereto, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to ~~BMCA and~~ the Company. (d) The Agent shall maintain at its address referred to in Section 9.2 a copy of each other Agent. In the case of any assignment by a Lender, within five Business Days after its receipt of such notice, the Borrowers, at their own expense, shall, if requested by the assignee, execute and deliver to the Administrative Agent in exchange for the surrendered Note or Notes an amended and restated Note (which shall be marked “Amended and Restated”) to the order of such Eligible Assignee in an amount equal to the Term Loan Commitment assumed by it under each Facility pursuant to such Assignment and Acceptance ~~and, if any assigning Lender has retained a Term Loan Commitment hereunder under such Facility~~ delivered to and ~~has requested a replacement Note, an amended and restated Note to the order of such assigning Lender in an amount equal to the Term Loan Commitment retained~~ accepted by it ~~hereunder~~and a register for the recordation of the names and addresses of the Lenders and the outstanding Term Loans of each Lender from time to time (the “Register”). ~~Such amended and restated Note or Notes~~ The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Agent and the Lenders may treat each Person whose name is recorded in ~~an aggregate principal amount equal to~~ the ~~aggregate principal amount~~ Register as a Lender hereunder for all purposes of ~~such surrendered Note or Notes,~~ this Agreement. The Register shall be ~~dated~~ available for inspection by the ~~effective date of such Assignment~~ Company or any Lender at any reasonable time and ~~Acceptance and shall otherwise be in substantially the form of Exhibit A hereto~~from time to time upon reasonable prior notice. (ge) Each Lender may sell participations to one or more ~~Persons~~ banks or other entities (other than ~~any Loan Party~~ the Company or any of its Affiliates) in or to all or a portion of its rights and obligations under this Agreement (~~including~~ including, without limitation, all or a portion of its Term ~~Loan Commitments, the Term Loan Advances~~ Loans owing to it and ~~the~~ any Term Note or Term Notes ~~(if any)~~ held by it); provided, however, that (i) such Lender’s obligations under this Agreement ~~(including its Term Loan Commitments)~~ shall remain unchanged, (ii) 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 Term Note for all purposes of this Agreement, (iv) the ~~Borrowers~~Borrower, the ~~Agents~~ Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and (v) no participant under any such participation shall have any right to approve any amendment or waiver of any provision of this Agreement or any ~~Loan Document~~Term Note, or any consent to any departure by ~~any Loan Party~~ the Borrower therefrom, except to the extent that such amendment, waiver or consent ~~requires~~ would reduce the ~~consent~~ principal of, or interest on, the Term Notes or any fees or other amounts payable hereunder, release any guaranty given to support the obligations of ~~all Lenders~~the Borrower hereunder or amend this Section 9.7(e), or postpone any date fixed for any payment of principal of, or interest on, the Term Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation. (hf) Any Lender may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section ~~8.07~~9.7, disclose to the assignee or participant or proposed assignee or ~~participant~~ participant, any information relating to the ~~Borrowers~~ Borrower furnished to such Lender by or on behalf of the ~~Borrowers~~Borrower; ~~provided, however,~~ 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 Borrower received by it from such ~~Lender in accordance with the terms of Section 8.09~~Lender. (ig) Notwithstanding any other provision set forth in this Agreement, any Lender may at any time create a security interest in all or any portion of its rights under this Agreement (~~including~~ including, without limitation, the Term ~~Loan Advances~~ Loans owing to it and ~~the~~ any Term Note or Term 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 System. (j) Notwithstanding anything to the contrary contained herein, any Lender that is a fund that invests in bank loans may create a security interest in all or any portion of the Term Loan Advances owing to it and the Note or Notes held by it to the trustee for holders of obligations owed, or securities issued, by such fund as security for such obligations or securities, provided, that unless and until such trustee actually becomes a Lender in compliance with the other provisions of this Section 8.07, (i) no such pledge shall release the pledging Lender from any of its obligations under the Loan Documents and (ii) such trustee shall not be entitled to exercise any of the rights of a Lender under the Loan Documents even though such trustee may have acquired ownership rights with respect to the pledged interest through foreclosure or otherwise. (k) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Lender”) may grant to a special purpose funding vehicle identified as such in writing from time to time by the Granting Lender to the Administrative Agent and BMCA (an “SPC”) the option to provide all or any part of any Term Loan Advance that such Granting Lender would otherwise be obligated to make pursuant to this Agreement, provided that (i) nothing herein shall constitute a commitment by any SPC to fund any Term Loan Advance, and (ii) if an SPC elects not to exercise such option or otherwise fails to make all or any part of such Term Loan Advance, the Granting Lender shall be obligated to make such Term Loan Advance pursuant to the terms hereof. The making of an Advance by an SPC hereunder shall utilize the Term Loan Commitment of the Granting Lender to the same extent, and as if, such Term Loan Advance were made by such Granting Lender. Each party hereto hereby agrees that (i) no SPC shall be liable for any indemnity or similar payment obligation under this Agreement for which a Lender would be liable, (ii) no SPC shall be entitled to the benefits of Sections 2.09 and 2.11 (or any other increased costs protection provision) and (iii) the Granting Bank shall for all purposes, including the approval of any amendment or waiver of any provision of any Loan Document, remain the Lender of record hereunder. In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior Debt of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency, or liquidation proceeding under the laws of the United States or any State thereof. Notwithstanding anything to the contrary contained in this Agreement, any SPC may (i) with notice to, but without prior consent of, BMCA and the Administrative Agent and with the payment of a processing fee of $500 and without paying any processing fee therefor, assign all or any portion of its interest in any Term Loan Advance to the Granting Lender and (ii) disclose on a confidential basis any non-public information relating to its funding of Term Loan Advance to any rating agency, commercial paper dealer or provider of any surety or guarantee or credit or liquidity enhancement to such SPC. This subsection (k) may not be amended without the prior written consent of each Granting Lender, all or any part of whose Term Loan Advances are being funded by the SPC at the time of such amendment.

Appears in 1 contract

Samples: Term Loan Agreement (Applera Corp)

Assignments and Participations. (a) Each Lender ~~may, upon at least five Business Days’ notice to such Lender and the Administrative Agent,~~ may assign to one or more Eligible Assignees all or a portion of its rights and obligations under this Agreement (~~including~~ including, without limitation, all or a portion of its ~~Term Loan Commitment~~Commitment or Commitments, the ~~Term Loan~~ Advances owing to it and the Note or Notes held by it); provided, ~~however,~~ however that (i) each such assignment shall be of a uniform, and not a varying, percentage of all rights and obligations under ~~this Agreement~~and in respect of all of the Facilities, (ii) except in the case of an assignment to a Person that, immediately prior to such assignment, was a Lender, an Affiliate of any Lender or ~~an Approved~~ a Fund Affiliate of any Lender or an assignment of all of a Lender’s rights and obligations under this Agreement, the aggregate amount of the Revolving Credit Commitments, Term ~~Loan~~ I Commitments or Term ~~Loan Advances~~ II Commitments, respectively, being assigned to such Eligible Assignee pursuant to such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $5,000,000 under each Facility or an integral multiple of $1,000,000 in excess thereof (or such lesser amount as shall be approved by the Administrative Agent and, so long as no Default shall have occurred and be continuing at the time of effectiveness of such assignment, ~~BMCA~~the Borrower), (iii) each such assignment shall be to an Eligible Assignee, (iv) except in the case of an assignment by to a Person that, immediately prior to such assignment, was a Lender, an Affiliate of any Lender or a Fund Affiliate of any Lender, in which case notice of such assignment shall be provided to ~~one of its Affiliates~~the Administrative Agent and the Borrower, no such assignments shall be permitted without the consent, which such consent shall not be unreasonably withheld or delayed, of (A) the Administrative Agent ~~and,~~ and (B) so long as no Default or Event of Default shall have occurred and be continuing at the time of the effectiveness of such assignment, ~~BMCA~~ the Borrower, and if the Borrower does not respond to any such request for consent within ten (~~in each case~~10) Business Days, ~~which consents~~ the Borrower shall ~~not~~ be ~~unreasonably withheld)~~ deemed to have consented, and (v) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together with any Note or Notes subject to such assignment ~~and~~ and, except if such assignment is being made by a Lender to an Affiliate or Fund Affiliate of such Lender, a processing and recordation fee of $3,500. (b) Upon such execution, delivery, acceptance and recording, from and after the effective date specified in such 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, have the rights and obligations of a Lender or Issuing Bank, as the case may be, hereunder and (ii) the Lender or Issuing Bank assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (other than its rights under Sections ~~2.09~~2.10, ~~2.11~~ 2.12, 7.06, 8.05 and ~~8.04~~ 9.04 to the extent any claim thereunder relates to an event arising prior to such assignment) and be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all of the remaining portion of an assigning Lender’s or Issuing Bank’s rights and obligations under this Agreement, such Lender or Issuing Bank shall cease to be a party hereto). (c) By executing and delivering an Assignment and Acceptance, each Lender Party assignor thereunder and each assignee thereunder confirm to and agree with each other and the other parties thereto and hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender Party makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with any Loan Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value of, or the perfection or priority of any lien or security interest created or purported to be created under or in connection with, any Loan Document or any other instrument or document furnished pursuant thereto; (ii) such assigning Lender Party makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party or the performance or observance by any Loan Party of any of its obligations under any Loan Document or any other instrument or document furnished pursuant thereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 4.01 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) such assignee will, independently and without reliance upon ~~any~~ the Administrative Agent, such assigning Lender Party or any other Lender Party and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) such assignee confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes ~~each~~ the Administrative Agent to take such action as agent on its behalf and to exercise such powers and discretion under the Loan Documents as are delegated to ~~such~~ the Administrative Agent by the terms hereof and thereof, together with such powers and discretion as are reasonably incidental thereto; and (vii) such assignee agrees that it will perform in accordance with their terms all of the obligations that by the terms of this Agreement are required to be performed by it as a ~~Lender~~Lender or Issuing Bank, as the case may be. (d) The Administrative Agent ~~acting for this purpose (but only for this purpose) as the agent of the Borrowers,~~ shall maintain at its address referred to in Section ~~8.02~~ 9.02 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 ~~Lenders~~ Lender Parties and the ~~Term Loan~~ Commitment under each Facility of, and principal amount of the ~~Term Loan~~ Advances owing under each Facility to, each Lender Party from time to time (the “Register”). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the ~~Borrowers~~Borrower, the ~~Agents~~ Administrative Agent and the ~~Lenders shall~~ Lender Parties may treat each Person whose name is recorded in the Register as a Lender Party hereunder for all purposes of this Agreement. The Register shall be available for inspection by the ~~Borrowers~~ Borrower or ~~any~~ the Administrative Agent or any Lender Party at any reasonable time and from time to time upon reasonable prior notice. (e) Notwithstanding anything to the contrary contained in clause (b) above, the Term Loan Advances (including the Notes evidencing such Term Loan Advances) are registered obligations and the right, title, and interest of the Lenders and their assignees in and to such Term Loan Advances shall be transferable only upon notation of such transfer in the Register. A Note shall only evidence the Lender’s or an assignee’s right title and interest in and to the related Term Loan Advance, and in no event is any such Note to be considered a bearer instrument or obligation. This Section 8.07 shall be construed so that the Term Loan Advances are at all times maintained in “registered form” within the meaning of sections 163(f), 871(h)(2) and 881(c)(2) of the Internal Revenue Code and any related regulations (or any successor provisions of the Internal Revenue Code or such regulations). Solely for purposes of this and for tax purposes only, the Administrative Agent shall act as each Borrower’s agent for purposes of maintaining such notations of transfer in the Register. (f) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender Party and an assignee, together with any Note or Notes subject to such assignment, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit C E hereto, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to ~~BMCA and each other Agent~~the Borrower. In the case of any assignment by a Lender, within five Business Days after its receipt of such notice, the ~~Borrowers~~Borrower, at ~~their~~ its own expense, shall, if requested by the ~~assignee~~applicable Lender, execute and deliver to the Administrative Agent in exchange for the surrendered Note or Notes ~~an amended and restated~~ a new Note ~~(which shall be marked “Amended and Restated”)~~ to the order of such Eligible Assignee in an amount equal to the ~~Term Loan~~ Commitment assumed by it under each Facility pursuant to such Assignment and Acceptance and, if any assigning Lender has retained a ~~Term Loan~~ Commitment hereunder under such ~~Facility and has requested~~ Facility, a ~~replacement Note, an amended and restated~~ new Note to the order of such assigning Lender in an amount equal to the ~~Term Loan~~ Commitment retained by it hereunder. Such ~~amended and restated~~ new Note or ~~Notes~~ Notes, if any, shall be in an aggregate principal amount equal to the aggregate principal amount of such surrendered Note or Notes, shall be dated the effective date of such Assignment and Acceptance and shall otherwise be in substantially the form of Exhibit A A-1 or Exhibit A-2 hereto, as applicable. (f) Each Issuing Bank may assign to one or more Eligible Assignees all or a portion of its rights and obligations under the undrawn portion of its Letter of Credit Commitment at any time; provided, however that (i) except in the case of an assignment to a Person that immediately prior to such assignment was an Issuing Bank or an assignment of all of an Issuing Bank’s rights and obligations under this Agreement, the amount of the Letter of Credit Commitment of the assigning Issuing Bank being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $5,000,000 and shall be in an integral multiple of $1,000,000 in excess thereof, (ii) each such assignment shall be to an Eligible Assignee and (iii) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together with a processing and recordation fee of $3,500, provided that such fee shall not be payable if the assigning Issuing Bank is making such assignment simultaneously with the assignment in its capacity as a Lender of all or a portion of its Revolving Credit Commitment to the same Eligible Assignee. (g) Each Lender Party may sell participations to one or more Persons (other than any Loan Party or any of its ~~Affiliates~~Affiliates or any Delinquent Lender) in or to all or a portion of its rights and obligations under this Agreement (~~including~~ including, without limitation, all or a portion of its ~~Term Loan~~ Commitments, the ~~Term Loan~~ Advances owing to it and the Note or Notes (if any) held by it); provided, ~~however,~~ however that (i) such ~~Lender~~Lender Party’s obligations under this Agreement (~~including~~ including, without limitation, its ~~Term Loan~~ Commitments) shall remain unchanged, (ii) such Lender Party shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) such Lender Party shall remain the holder of any such Note for all purposes of this Agreement, (iv) the ~~Borrowers~~Borrower, the ~~Agents~~ Administrative Agent and the other ~~Lenders~~ Lender Parties shall continue to deal solely and directly with such Lender Party in connection with such ~~Lender~~Lender Party’s rights and obligations under this ~~Agreement and~~ Agreement, (v) no participant under any such participation shall have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent ~~requires~~ would reduce the ~~consent~~ principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, or postpone any date fixed for any payment of ~~all Lenders~~principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, and (vi) if, at the time of such sale, such Lender Party was entitled to payments under Section 2.12(a) in respect of United States withholding tax with respect to interest paid at such date, then, to such extent, the term Taxes shall include (in addition to withholding taxes that may be imposed in the future or other amounts otherwise includable in Taxes) United States withholding tax, if any, applicable with respect to such participant on such date, provided that such participant complies with the requirements of Section 2.12(e). (h) Any Lender Party may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section ~~8.07~~9.07, disclose to the assignee or participant or proposed assignee or participant any information relating to the ~~Borrowers~~ Borrower furnished to such Lender Party by or on behalf of the ~~Borrowers~~Borrower; provided, ~~however,~~ however 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 received by it from such Lender ~~in accordance with the terms of Section 8.09~~Party. (i) Notwithstanding any other provision set forth in this Agreement, any Lender Party may at any time create a security interest in all or any portion of its rights under this Agreement (~~including~~ including, without limitation, the ~~Term Loan~~ 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 System. (j) ~~Notwithstanding anything~~ In connection with any assignment of rights and obligations of any Delinquent Lender, no such assignment shall be effective unless and until, in addition to the ~~contrary contained~~ other conditions thereto set forth herein, ~~any Lender that is a fund that invests~~ the parties to the assignment shall make such additional payments to the Administrative Agent in ~~bank loans~~ an aggregate amount sufficient, upon distribution thereof as appropriate (which may ~~create a security interest in all~~ be outright payment, purchases by the assignee of participations or ~~any portion~~ actions, including funding, with the consent of the ~~Term Loan Advances owing to it~~ Borrower and the ~~Note or Notes held~~ Administrative Agent, the applicable pro rata share of Loans previously requested but not funded by it the Delinquent Lender to each of which the ~~trustee for holders of obligations owed~~applicable assignee and assignor hereby irrevocably consent), or securities issued, by such fund as security for such obligations or securities, provided, that unless and until such trustee actually becomes a Lender in compliance with the other provisions of this Section 8.07, to (i) no pay and satisfy in full all payment liabilities then owed by such pledge shall release the pledging Lender from any of its obligations under the Loan Documents and (ii) such trustee shall not be entitled to exercise any of the rights of a Lender under the Loan Documents even though such trustee may have acquired ownership rights with respect to the pledged interest through foreclosure or otherwise. (k) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Lender”) may grant to a special purpose funding vehicle identified as such in writing from time to time by the Granting Delinquent Lender to the Administrative Agent ~~and BMCA (an “SPC”) the option to provide all~~ or any ~~part of any Term Loan Advance that such Granting~~ Lender ~~would otherwise be obligated to make pursuant to this Agreement, provided that~~ hereunder (~~i) nothing herein shall constitute a commitment by any SPC to fund any Term Loan Advance,~~ and (ii) if an SPC elects not to exercise such option or otherwise fails to make all or any part of such Term Loan Advance, the Granting Lender shall be obligated to make such Term Loan Advance pursuant to the terms hereof. The making of an Advance by an SPC hereunder shall utilize the Term Loan Commitment of the Granting Lender to the same extent, and as if, such Term Loan Advance were made by such Granting Lender. Each party hereto hereby agrees that (i) no SPC shall be liable for any indemnity or similar payment obligation under this Agreement for which a Lender would be liable, (ii) no SPC shall be entitled to the benefits of Sections 2.09 and 2.11 (or any other increased costs protection provisioninterest accrued thereon) and (~~iii~~y) ~~the Granting Bank shall for~~ acquire (and fund as appropriate) its full pro rata share of all ~~purposes, including the approval~~ Loans and participations in Letters of ~~any amendment or waiver of any provision of any Loan Document, remain the Lender of record hereunder~~Credit and in Swing Line Advances in accordance with its Commitment Percentage. ~~In furtherance of~~ Notwithstanding the foregoing, ~~each party hereto hereby agrees (which agreement~~ in the event that any assignment of rights and obligations of any Delinquent Lender hereunder shall ~~survive~~ become effective under applicable Law without compliance with the ~~termination~~ provisions of this ~~Agreement) that~~paragraph, ~~prior to~~ then the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior Debt of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency, or liquidation proceeding under the laws of the United States or any State thereof. Notwithstanding anything to the contrary contained in this Agreement, any SPC may (i) with notice to, but without prior consent of, BMCA and the Administrative Agent and with the payment of a processing fee of $500 and without paying any processing fee therefor, assign all or any portion of its interest in any Term Loan Advance to the Granting Lender and (ii) disclose on a confidential basis any non-public information relating to its funding of Term Loan Advance to any rating agency, commercial paper dealer or provider of any surety or guarantee or credit or liquidity enhancement to such SPC. This subsection (k) may not be amended without the prior written consent of each Granting Lender, all or any part of whose Term Loan Advances are being funded by the SPC at the time assignee of such ~~amendment~~interest shall be deemed to be a Delinquent Lender for all purposes of this Agreement until such compliance occurs.

Appears in 1 contract

Samples: Credit Agreement (American Campus Communities Operating Partnership LP)

Assignments and Participations. (a) Each Lender ~~may, upon at least five Business Days’ notice to such Lender and the Administrative Agent,~~ may assign to one or more Eligible Assignees all or a portion of its rights and obligations under this Agreement (~~including~~ including, without limitation, all or a portion of its ~~Term Loan Commitment~~Commitment or Commitments, the ~~Term Loan~~ Advances owing to it and the Note or Notes held by it); provided, however, that (i) each such assignment shall be of a uniform, and not a varying, percentage of all rights and obligations under ~~this Agreement~~and in respect of any or all Facilities, (ii) except in the case of an assignment to a Person that, immediately prior to such assignment, was a Lender, an Affiliate of any Lender or an Approved Fund of any Lender or an assignment of all of a Lender’s rights and obligations under this Agreement, the aggregate amount of the ~~Term Loan~~ Commitments ~~or Term Loan Advances~~ being assigned to such Eligible Assignee pursuant to such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $~~5,000,000~~ 1,000,000 and shall be in an integral multiple of $500,000 (or such lesser amount as shall be approved by the Administrative Agent and, so long as no Default shall have occurred and be continuing at the time of effectiveness of such assignment, ~~BMCA)~~the Borrower) under each Facility for which a Commitment is being assigned, (iii) each such assignment shall be to an Eligible Assignee, (iv) ~~except in the case of an assignment by a Person that, immediately prior to such assignment, was a Lender, to one of its Affiliates,~~ no such assignments shall be permitted without the consent of the Administrative Agent ~~and, so long as no Default~~ until the Administrative Agent shall have ~~occurred and be continuing at~~ notified the ~~time~~ Lender Parties that syndication of ~~effectiveness of such assignment, BMCA (in each case, which consents shall not be unreasonably withheld)~~ the Commitments hereunder has been completed and (v) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together with any Note or Notes subject to such assignment and a processing and recordation fee of $3,500. (b) Upon such execution, delivery, acceptance and recording, from and after the effective date specified in such 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, have the rights and obligations of a Lender or Issuing Bank, as the case may be, hereunder and (ii) the Lender or Issuing Bank assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (other than its rights under Sections ~~2.09~~2.10, ~~2.11~~ 2.12 and 8.04 to the extent any claim thereunder relates to an event arising prior to such assignment) and be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all of the remaining portion of an assigning Lender’s or Issuing Bank’s rights and obligations under this Agreement, such Lender or Issuing Bank shall cease to be a party hereto). (c) By executing and delivering an Assignment and Acceptance, each Lender Party assignor thereunder and each assignee thereunder confirm to and agree with each other and the other parties thereto and hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender Party makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with any Loan Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value of, or the perfection or priority of any lien or security interest created or purported to be created under or in connection with, any Loan Document or any other instrument or document furnished pursuant thereto; (ii) such assigning Lender Party makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party or the performance or observance by any Loan Party of any of its obligations under any Loan Document or any other instrument or document furnished pursuant thereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 4.01 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) such assignee will, independently and without reliance upon ~~any~~ the Administrative Agent, such assigning Lender Party or any other Lender Party and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) such assignee confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes ~~each~~ the Administrative Agent to take such action as agent on its behalf and to exercise such powers and discretion under the Loan Documents as are delegated to ~~such~~ the Administrative Agent by the terms hereof and thereof, together with such powers and discretion as are reasonably incidental thereto; and (vii) such assignee agrees that it will perform in accordance with their terms all of the obligations that by the terms of this Agreement are required to be performed by it as a ~~Lender~~Lender or Issuing Bank, as the case may be. (d) The Administrative Agent ~~acting for this purpose (but only for this purpose) as the agent of the Borrowers,~~ shall maintain at its address referred to in Section 8.02 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 ~~Lenders~~ Lender Parties and the ~~Term Loan~~ Commitment under each Facility of, and principal amount of the ~~Term Loan~~ Advances owing under each Facility to, each Lender Party from time to time (the “Register”). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the ~~Borrowers~~Borrower, the ~~Agents~~ Administrative Agent and the ~~Lenders shall~~ Lender Parties may treat each Person whose name is recorded in the Register as a Lender Party hereunder for all purposes of this Agreement. The Register shall be available for inspection by the ~~Borrowers~~ Borrower or ~~any~~ the Administrative Agent or any Lender Party at any reasonable time and from time to time upon reasonable prior notice. (e) Notwithstanding anything to the contrary contained in clause (b) above, the Term Loan Advances (including the Notes evidencing such Term Loan Advances) are registered obligations and the right, title, and interest of the Lenders and their assignees in and to such Term Loan Advances shall be transferable only upon notation of such transfer in the Register. A Note shall only evidence the Lender’s or an assignee’s right title and interest in and to the related Term Loan Advance, and in no event is any such Note to be considered a bearer instrument or obligation. This Section 8.07 shall be construed so that the Term Loan Advances are at all times maintained in “registered form” within the meaning of sections 163(f), 871(h)(2) and 881(c)(2) of the Internal Revenue Code and any related regulations (or any successor provisions of the Internal Revenue Code or such regulations). Solely for purposes of this and for tax purposes only, the Administrative Agent shall act as each Borrower’s agent for purposes of maintaining such notations of transfer in the Register. (f) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender Party and an assignee, together with any Note or Notes subject to such assignment, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit C hereto, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to ~~BMCA~~ the Borrower and each other Administrative Agent. In the case of any assignment by a Lender, within five Business Days after its receipt of such notice, the ~~Borrowers~~Borrower, at ~~their~~ its own expense, ~~shall, if requested by the assignee,~~ shall execute and deliver to the Administrative Agent in exchange for the surrendered Note or Notes ~~an amended and restated~~ a new Note ~~(which shall be marked “Amended and Restated”)~~ to the order of such Eligible Assignee in an amount equal to the ~~Term Loan~~ Commitment assumed by it under each Facility pursuant to such Assignment and Acceptance and, if any assigning Lender has retained a ~~Term Loan~~ Commitment hereunder under such ~~Facility and has requested~~ Facility, a ~~replacement Note, an amended and restated~~ new Note to the order of such assigning Lender in an amount equal to the ~~Term Loan~~ Commitment retained by it hereunder. Such ~~amended and restated~~ 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 Assignment and Acceptance and shall otherwise be in substantially the form of Exhibit A A-1 or A-2 hereto, as the case may be. (f) The Issuing Bank may assign to an Eligible Assignee not less than all of its rights and obligations under the undrawn portion of its Letter of Credit Commitment at any time; provided, however, that (i) each such assignment shall be to an Eligible Assignee and (ii) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together with a processing and recordation fee of $3,500. (g) Each Lender Party may sell participations to one or more Persons (other than any Loan Party or any of its Affiliates) in or to all or a portion of its rights and obligations under this Agreement (~~including~~ including, without limitation, all or a portion of its ~~Term Loan~~ Commitments, the ~~Term Loan~~ Advances owing to it and the Note or Notes (if any) held by it); provided, however, that (i) such ~~Lender~~Lender Party’s obligations under this Agreement (~~including~~ including, without limitation, its ~~Term Loan~~ Commitments) shall remain unchanged, (ii) such Lender Party shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) such Lender Party shall remain the holder of any such Note for all purposes of this Agreement, (iv) the ~~Borrowers~~Borrower, the ~~Agents~~ Administrative Agent and the other ~~Lenders~~ Lender Parties shall continue to deal solely and directly with such Lender Party in connection with such ~~Lender~~Lender Party’s rights and obligations under this Agreement and (v) no participant under any such participation shall have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent ~~requires~~ would reduce the ~~consent~~ principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, postpone any date fixed for any payment of principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, or release all ~~Lenders~~or substantially all of the Collateral. (h) Any Lender Party may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section 8.07, disclose to the assignee or participant or proposed assignee or participant any information relating to the ~~Borrowers~~ Borrower furnished to such Lender Party by or on behalf of the ~~Borrowers~~Borrower; provided, however, 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 received by it from such Lender ~~in accordance with the terms of Section 8.09~~Party. (i) Notwithstanding any other provision set forth in this Agreement, any Lender Party may at any time create a security interest in all or any portion of its rights under this Agreement (~~including~~ including, without limitation, the ~~Term Loan~~ 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 System. (j) Notwithstanding anything to the contrary contained herein, any Lender that is a fund that invests in bank loans may create a security interest in all or any portion of the ~~Term Loan~~ Advances owing to it and the Note or Notes held by it to the trustee for holders of obligations owed, or securities issued, by such fund as security for such obligations or securities, provided, that unless and until such trustee actually becomes a Lender in compliance with the other provisions of this Section ~~8.07~~9.07, (i) no such pledge shall release the pledging Lender from any of its obligations under the Loan Documents and (ii) such trustee shall not be entitled to exercise any of the rights of a Lender under the Loan Documents even though such trustee may have acquired ownership rights with respect to the pledged interest through foreclosure or otherwise. (k) Notwithstanding anything to the contrary contained herein, any Lender Party (a “Granting Lender”) may grant to a special purpose funding vehicle identified as such in writing from time to time by the Granting Lender to the Administrative Agent and ~~BMCA~~ the Borrower (an “SPC”) the option to provide all or any part of any ~~Term Loan~~ Advance that such Granting Lender would otherwise be obligated to make pursuant to this Agreement, provided that (i) nothing herein shall constitute a commitment by any SPC to fund any ~~Term Loan~~ Advance, and (ii) if an SPC elects not to exercise such option or otherwise fails to make all or any part of such ~~Term Loan~~ Advance, the Granting Lender shall be obligated to make such ~~Term Loan~~ Advance pursuant to the terms hereof. The making of an Advance by an SPC hereunder shall utilize the ~~Term Loan~~ Commitment of the Granting Lender to the same extent, and as if, such ~~Term Loan~~ Advance were made by such Granting Lender. Each party hereto hereby agrees that (i) no SPC shall be liable for any indemnity or similar payment obligation under this Agreement for which a Lender Party would be liable, (ii) no SPC shall be entitled to the benefits of Sections ~~2.09~~ 2.10 and ~~2.11~~ 2.12 (or any other increased costs protection provision) and (iii) the Granting Bank shall for all purposes, ~~including~~ including, without limitation, the approval of any amendment or waiver of any provision of any Loan Document, remain the Lender Party of record hereunder. In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior Debt of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency, or liquidation proceeding under the laws of the United States or any State thereof. Notwithstanding anything to the contrary contained in this Agreement, any SPC may (i) with notice to, but without prior consent of, ~~BMCA~~ the Borrower and the Administrative Agent and with the payment of a processing fee of $~~500 and without paying any processing fee therefor~~500, assign all or any portion of its interest in any ~~Term Loan~~ Advance to the Granting Lender and (ii) disclose on a confidential basis any non-public information relating to its funding of ~~Term Loan Advance~~ Advances to any rating agency, commercial paper dealer or provider of any surety or guarantee or credit or liquidity enhancement to such SPC. This subsection (k) may not be amended without the prior written consent of each Granting Lender, all or any part of whose ~~Term Loan~~ Advances are being funded by the SPC at the time of such amendment.

Appears in 1 contract

Samples: Credit Agreement (Grubb & Ellis Co)

Assignments and Participations. (a) Each Lender ~~may~~may with the consent of each Issuing Bank (which consent shall not be unreasonably withheld or delayed) and, if demanded by the Company (so long as no Event of Default shall have occurred and be continuing and following a demand by such Lender pursuant to Section 2.11 or 2.14) upon at least five Business Days’ ' notice to such Lender and the ~~Administrative~~ Agent, will assign to one or more ~~Eligible Assignees~~ Persons all or a portion of its rights and obligations under this Agreement (~~including~~ including, without limitation, all or a portion of its ~~Term Loan~~ Revolving Credit Commitment, the ~~Term Loan~~ Advances owing to it it, its participations in Letters of Credit and the Note or Notes held by it); provided, however, that (i) each such assignment shall be of a ~~uniform~~constant, and not a varying, percentage of all rights and obligations under this Agreement, (ii) except in the case of an assignment to a Person that, immediately prior to such assignment, was a ~~Lender, an Affiliate of any Lender or an Approved Fund of any~~ Lender or an assignment of all of a Lender’s 's rights and obligations under this Agreement, the ~~aggregate~~ amount of the ~~Term Loan Commitments or Term Loan Advances~~ Revolving Credit Commitment of the assigning Lender being assigned ~~to such Eligible Assignee~~ pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $~~5,000,000 (~~10,000,000 or ~~such lesser amount as shall be approved by~~ an integral multiple of $1,000,000 in excess thereof unless the ~~Administrative~~ Company and the Agent ~~and, so long as no Default shall have occurred and be continuing at the time of effectiveness of such assignment, BMCA)~~otherwise agree, (iii) each such assignment shall be to an Eligible Assignee, (iv) ~~except in~~ each such assignment made as a result of a demand by the ~~case of~~ Company pursuant to this Section 9.07(a) shall be arranged by the Company after consultation with the Agent and shall be either an assignment of all of the rights and obligations of the assigning Lender under this Agreement or an assignment of a portion of such rights and obligations made concurrently with another such assignment or other such assignments that together cover all of the rights and obligations of the assigning Lender under this Agreement, (v) no Lender shall be obligated to make any such assignment as a result of a demand by ~~a Person that, immediately prior~~ the Company pursuant to this Section 9.07(a) unless and until such Lender shall have received one or more payments from either the Borrowers or one or more Eligible Assignees in an aggregate amount at least equal to the aggregate outstanding principal amount of the Advances owing to such ~~assignment, was a~~ Lender, together with accrued interest thereon to ~~one~~ the date of ~~its Affiliates, no such assignments shall be permitted without the consent of the Administrative Agent and, so long as no Default shall have occurred and be continuing at the time of effectiveness~~ payment of such ~~assignment~~principal amount and all other amounts payable to such Lender under this Agreement, ~~BMCA (in each case, which consents shall not be unreasonably withheld)~~ and (vvi) the parties to each such assignment shall execute and deliver to the ~~Administrative~~ Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together with any Note ~~or Notes~~ subject to such assignment and a processing and recordation fee of $~~3,500. (b)~~ 3,500 payable by the parties to each such assignment, provided, however, that in the case of each assignment made as a result of a demand by the Company, such recordation fee shall be payable by the Company except that no such recordation fee shall be payable in the case of an assignment made at the request of the Company to an Eligible Assignee that is an existing Lender. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in ~~such~~ each Assignment and Acceptance, (ix) the assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, have the rights and obligations of a Lender hereunder and (iiy) the Lender assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (other than its rights under Sections ~~2.09~~2.11, ~~2.11~~ 2.14 and ~~8.04~~ 9.04 to the extent any claim thereunder relates to an event arising prior to such assignment) and be released from its obligations (other than its obligations under Section 8.05 to the extent any claim thereunder relates to an event arising prior to such assignment) under this Agreement (and, in the case of an Assignment and Acceptance covering all of or the remaining portion of an assigning Lender’s 's rights and obligations under this Agreement, such Lender shall cease to be a party hereto). (cb) By executing and delivering an Assignment and Acceptance, ~~each~~ the Lender assignor thereunder and ~~each~~ the assignee thereunder confirm to and agree with each other and the other parties ~~thereto and~~ hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with ~~any Loan Document~~ this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of, or the perfection or priority of any lien or security interest created or purported to be created under or in connection with, ~~any Loan Document~~ this Agreement or any other instrument or document furnished pursuant ~~thereto~~hereto; (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of the Company or any ~~Loan Party~~ other Borrower or the performance or observance by the Company or any ~~Loan Party~~ other Borrower of any of its obligations under ~~any Loan Document~~ this Agreement or any other instrument or document furnished pursuant ~~thereto~~hereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 4.01 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) such assignee will, independently and without reliance upon ~~any~~ the Agent, such assigning Lender or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) such assignee confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes ~~each~~ the Agent to take such action as agent on its behalf and to exercise such powers and discretion under ~~the Loan Documents~~ this Agreement as are delegated to ~~such~~ the Agent by the terms ~~hereof and thereof~~hereof, together with such powers and discretion as are reasonably incidental thereto; and (vii) such assignee agrees that it will perform in accordance with their terms all of the obligations that by the terms of this Agreement are required to be performed by it as a Lender. (d) The Administrative Agent acting for this purpose (but only for this purpose) as the agent of the Borrowers, shall maintain at its address referred to in Section 8.02 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 Lenders and the Term Loan Commitment of, and principal amount of the Term Loan Advances 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 Borrowers, the Agents and the Lenders shall treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrowers or any Agent or any Lender at any reasonable time and from time to time upon reasonable prior notice. (e) Notwithstanding anything to the contrary contained in clause (b) above, the Term Loan Advances (including the Notes evidencing such Term Loan Advances) are registered obligations and the right, title, and interest of the Lenders and their assignees in and to such Term Loan Advances shall be transferable only upon notation of such transfer in the Register. A Note shall only evidence the Lender’s or an assignee’s right title and interest in and to the related Term Loan Advance, and in no event is any such Note to be considered a bearer instrument or obligation. This Section 8.07 shall be construed so that the Term Loan Advances are at all times maintained in “registered form” within the meaning of sections 163(f), 871(h)(2) and 881(c)(2) of the Internal Revenue Code and any related regulations (or any successor provisions of the Internal Revenue Code or such regulations). Solely for purposes of this and for tax purposes only, the Administrative Agent shall act as each Borrower’s agent for purposes of maintaining such notations of transfer in the Register. (fc) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an ~~assignee~~assignee representing that it is an Eligible Assignee, together with any Note or Notes subject to such assignment, the ~~Administrative~~ Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit C hereto, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to ~~BMCA~~ the Company. (d) The Agent shall maintain at its address referred to in Section 9.02 a copy of each Assumption Agreement and each Assignment and Acceptance delivered to and accepted by it and a register for the recordation of the names and addresses of the Lenders and the Commitment of, and principal amount 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 Company and the other 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 Company or any Lender at any reasonable time and from time to time upon reasonable prior notice. (e) Each Issuing Bank may and, if demanded by the Company (so long as no Event of Default shall have occurred and be continuing and following a demand by such Issuing Bank pursuant to Section 2.11 or 2.14) upon at least five Business Days' notice to such Issuing Bank and the Agent~~. In~~ , will assign to one or more Eligible Assignees all or a portion of its rights and obligations under its Unissued Letter of Credit Commitment at any time; provided, however, that (i) except in the case of ~~any~~ an assignment to a Person that immediately prior to such assignment was an Issuing Bank or an assignment of all of an Issuing Bank's rights and obligations under this Agreement, the Unissued Letter of Credit Commitment of the assigning Issuing Bank being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $5,000,000 or an integral multiple of $1,000,000 in excess thereof unless the Company and the Agent otherwise agree, (ii) each such assignment shall be to an Eligible Assignee, (iii) each such assignment made as a result of a demand by the Company pursuant to this Section 9.07(e) shall be arranged by the Company after consultation with the Agent and shall be either an assignment of all of the Unissued Letter of Credit Commitments of the assigning Issuing Bank or an assignment of a ~~Lender, within five Business Days after its receipt~~ portion of such ~~notice,~~ Unissued Letter of Credit Commitments made concurrently with another such assignment or other such assignments that together cover all of the ~~Borrowers, at their own expense, shall, if requested by~~ Unissued Letter of Credit Commitments of the ~~assignee,~~ assigning Issuing Bank and (iv) the parties to each such assignment shall execute and deliver to the ~~Administrative Agent~~ Agent, for its acceptance and recording in ~~exchange for~~ the ~~surrendered Note or Notes~~ Register, an amended and restated Note (which shall be marked “Amended and Restated”) to the order of such Eligible Assignee in an amount equal to the Term Loan Commitment assumed by it under each Facility pursuant to such Assignment and ~~Acceptance and~~Acceptance, ~~if any assigning Lender has retained~~ together with a ~~Term Loan Commitment hereunder under such Facility~~ processing and ~~has requested a replacement Note, an amended and restated Note to the order~~ recordation fee of such assigning Lender in an amount equal to the Term Loan Commitment retained by it hereunder. Such amended and restated 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 Assignment and Acceptance and shall otherwise be in substantially the form of Exhibit A hereto$3,500. (gf) Each Lender may sell participations to one or more ~~Persons~~ banks or other entities (other than ~~any Loan Party~~ the Company or any of its Affiliates) in or to all or a portion of its rights and obligations under this Agreement (~~including~~ including, without limitation, all or a portion of its ~~Term Loan Commitments~~Commitment, the ~~Term Loan~~ Advances owing to it and ~~the~~ any Note or Notes ~~(if any)~~ held by it); provided, however, that (i) such Lender’s 's obligations under this Agreement (~~including~~ including, without limitation, its ~~Term Loan Commitments~~Commitment to the Borrowers hereunder) shall remain unchanged, (ii) 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, (iv) the Company , the other Borrowers, the ~~Agents~~ Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s 's rights and obligations under this Agreement and (v) no participant under any such participation shall have any right to approve any amendment or waiver of any provision of this Agreement or any ~~Loan Document~~Note, or any consent to any departure by the Company or any ~~Loan Party~~ other Borrower therefrom, except to the extent that such amendment, waiver or consent ~~requires~~ would reduce the ~~consent~~ principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, or postpone any date fixed for any payment of ~~all Lenders~~principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation. (hg) ~~Any~~ Subject to the requirements of Section 9.08 below, any Lender may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section ~~8.07~~9.07, disclose to the assignee or participant or proposed assignee or ~~participant~~ participant, any information relating to the ~~Borrowers~~ Company furnished to such Lender by or on behalf of the Borrowers; provided, however, 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 received by it from such Lender in accordance with the terms of Section 8.09Company. (ih) Notwithstanding any other provision set forth in this Agreement, any Lender may at any time create a security interest in all or any portion of its rights under this Agreement (~~including~~ including, without limitation, the ~~Term Loan~~ Advances owing to it and ~~the~~ any 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 System. (j) Notwithstanding anything to the contrary contained herein, any Lender that is a fund that invests in bank loans may create a security interest in all or any portion of the Term Loan Advances owing to it and the Note or Notes held by it to the trustee for holders of obligations owed, or securities issued, by such fund as security for such obligations or securities, provided, that unless and until such trustee actually becomes a Lender in compliance with the other provisions of this Section 8.07, (i) no such pledge shall release the pledging Lender from any of its obligations under the Loan Documents and (ii) such trustee shall not be entitled to exercise any of the rights of a Lender under the Loan Documents even though such trustee may have acquired ownership rights with respect to the pledged interest through foreclosure or otherwise. (k) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Lender”) may grant to a special purpose funding vehicle identified as such in writing from time to time by the Granting Lender to the Administrative Agent and BMCA (an “SPC”) the option to provide all or any part of any Term Loan Advance that such Granting Lender would otherwise be obligated to make pursuant to this Agreement, provided that (i) nothing herein shall constitute a commitment by any SPC to fund any Term Loan Advance, and (ii) if an SPC elects not to exercise such option or otherwise fails to make all or any part of such Term Loan Advance, the Granting Lender shall be obligated to make such Term Loan Advance pursuant to the terms hereof. The making of an Advance by an SPC hereunder shall utilize the Term Loan Commitment of the Granting Lender to the same extent, and as if, such Term Loan Advance were made by such Granting Lender. Each party hereto hereby agrees that (i) no SPC shall be liable for any indemnity or similar payment obligation under this Agreement for which a Lender would be liable, (ii) no SPC shall be entitled to the benefits of Sections 2.09 and 2.11 (or any other increased costs protection provision) and (iii) the Granting Bank shall for all purposes, including the approval of any amendment or waiver of any provision of any Loan Document, remain the Lender of record hereunder. In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior Debt of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency, or liquidation proceeding under the laws of the United States or any State thereof. Notwithstanding anything to the contrary contained in this Agreement, any SPC may (i) with notice to, but without prior consent of, BMCA and the Administrative Agent and with the payment of a processing fee of $500 and without paying any processing fee therefor, assign all or any portion of its interest in any Term Loan Advance to the Granting Lender and (ii) disclose on a confidential basis any non-public information relating to its funding of Term Loan Advance to any rating agency, commercial paper dealer or provider of any surety or guarantee or credit or liquidity enhancement to such SPC. This subsection (k) may not be amended without the prior written consent of each Granting Lender, all or any part of whose Term Loan Advances are being funded by the SPC at the time of such amendment.

Appears in 1 contract

Samples: Credit Agreement (Electronic Data Systems Corp /De/)

Assignments and Participations. (a) Each Lender may, upon at least five Business Days’ ' notice to such Lender and the Administrative Agent, assign to one or more Eligible Assignees all or a portion of its rights and obligations under this Agreement (including all or a portion of ~~its Term Loan Commitment,~~ the ~~Term Loan Advances~~ Loans owing to it and the Note or Notes held by it); provided, however, that (i) each such assignment shall be of a uniform, and not a varying, percentage of all rights and obligations under this Agreement, (ii) except in the case of an assignment to a Person that, immediately prior to such assignment, was a Lender, an Affiliate of any Lender or an Approved Fund of any Lender or an assignment of all of a Lender’s 's rights and obligations under this Agreement, the aggregate amount of the ~~Term Loan Commitments or Term Loan Advances~~ Loans being assigned to such Eligible Assignee pursuant to such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $~~5,000,000~~ 1,000,000 (or such lesser amount as shall be approved by the Administrative Agent and, so long as no Default shall have occurred and be continuing at the time of effectiveness of such assignment, BMCA), (iii) each such assignment shall be to an Eligible Assignee, (iv) except in the case of an assignment by a Person that, immediately prior to such assignment, was a Lender, to one of its Affiliates, another Lender or an Approved Fund, no such assignments shall be permitted without the consent of the Administrative Agent and, so long as no Default shall have occurred and be continuing at the time of effectiveness of such assignment, ~~BMCA~~ the Borrowers (in each case, which consents shall not be unreasonably ~~withheld~~withheld or delayed) and (v) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together with any Note or Notes subject to such assignment and a processing and recordation fee of $3,500; provided, however, that only one such fee shall be payable in connection with concurrent assignments by a Lender to two or more Approved Funds. (b) Upon such execution, delivery, acceptance and recording, from and after the effective date specified in such 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, have the rights and obligations of a Lender hereunder and (ii) the Lender assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (other than its rights under Sections ~~2.09~~2.08, ~~2.11~~ 2.10 and 8.04 to the extent any claim thereunder relates to an event arising prior to such assignment) and be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all of the remaining portion of an assigning Lender’s 's rights and obligations under this Agreement, such Lender shall cease to be a party hereto). (c) By executing and delivering an Assignment and Acceptance, each Lender assignor thereunder and each assignee thereunder confirm to and agree with each other and the other parties thereto and hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with any Loan Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value of, or the perfection or priority of any lien or security interest created or purported to be created under or in connection with, any Loan Document or any other instrument or document furnished pursuant thereto; (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party or the performance or observance by any Loan Party of any of its obligations under any Loan Document or any other instrument or document furnished pursuant thereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 4.01 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) such assignee will, independently and without reliance upon any Agent, such assigning Lender or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) such assignee confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes each Agent to take such action as agent on its behalf and to exercise such powers and discretion under the Loan Documents as are delegated to such Agent by the terms hereof and thereof, together with such powers and discretion as are reasonably incidental thereto; and (vii) such assignee agrees that it will perform in accordance with their terms all of the obligations that by the terms of this Agreement are required to be performed by it as a Lender. (d) The Administrative Agent acting for this purpose (but only for this purpose) as the agent of the Borrowers, shall maintain at its address referred to in Section 8.02 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 ~~Lenders and the Term Loan Commitment of~~Lenders, and principal amount of the ~~Term Loan Advances~~ Loans to, each Lender from time to time (the ~~“Register”~~"REGISTER"). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrowers, the Agents and the Lenders shall treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrowers or any Agent or any Lender at any reasonable time and from time to time upon reasonable prior notice. (e) Notwithstanding anything to the contrary contained in clause (b) above, the ~~Term Loan Advances~~ Loans (including the Notes evidencing such ~~Term Loan Advances~~Loans) are registered obligations and the right, title, and interest of the Lenders and their assignees in and to such ~~Term Loan Advances~~ Loans shall be transferable only upon notation of such transfer in the Register. A Note shall only evidence the Lender’s 's or an assignee’s 's right title and interest in and to the related ~~Term Loan Advance~~Loan, and in no event is any such Note to be considered a bearer instrument or obligation. This Section 8.07 shall be construed so that the Term Loan Advances are at all times maintained in “registered form” within the meaning of sections 163(f), 871(h)(2) and 881(c)(2) of the Internal Revenue Code and any related regulations (or any successor provisions of the Internal Revenue Code or such regulations). Solely for purposes of this and for tax purposes only, the Administrative Agent shall act as each Borrower’s agent for purposes of maintaining such notations of transfer in the Register. (f) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee, together with any Note or Notes subject to such assignment, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit C hereto, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to BMCA and each other Agent. In the case of any assignment by a Lender, within five Business Days after its receipt of such notice, the Borrowers, at their own expense, shall, if requested by the assignee, execute and deliver to the Administrative Agent in exchange for the surrendered Note or Notes an amended and restated Note (which shall be marked “Amended and Restated”) to the order of such Eligible Assignee in an amount equal to the Term Loan Commitment assumed by it under each Facility pursuant to such Assignment and Acceptance and, if any assigning Lender has retained a Term Loan Commitment hereunder under such Facility and has requested a replacement Note, an amended and restated Note to the order of such assigning Lender in an amount equal to the Term Loan Commitment retained by it hereunder. Such amended and restated 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 Assignment and Acceptance and shall otherwise be in substantially the form of Exhibit A hereto. (g) Each Lender may sell participations to one or more Persons (other than any Loan Party or any of its Affiliates) in or to all or a portion of its rights and obligations under this Agreement (including all or a portion of its Term Loan Commitments, the Term Loan Advances owing to it and the Note or Notes (if any) held by it); provided, however, that (i) such Lender’s obligations under this Agreement (including its Term Loan Commitments) shall remain unchanged, (ii) 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, (iv) the Borrowers, the Agents and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and (v) no participant under any such participation shall have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent requires the consent of all Lenders. (h) Any Lender may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section 8.07, disclose to the assignee or participant or proposed assignee or participant any information relating to the Borrowers furnished to such Lender by or on behalf of the Borrowers; provided, however, 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 received by it from such Lender in accordance with the terms of Section 8.09. (i) Notwithstanding any other provision set forth in this Agreement, any Lender may at any time create a security interest in all or any portion of its rights under this Agreement (including the Term Loan 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 System. (j) Notwithstanding anything to the contrary contained herein, any Lender that is a fund that invests in bank loans may create a security interest in all or any portion of the Term Loan Advances owing to it and the Note or Notes held by it to the trustee for holders of obligations owed, or securities issued, by such fund as security for such obligations or securities, provided, that unless and until such trustee actually becomes a Lender in compliance with the other provisions of this Section 8.07, (i) no such pledge shall release the pledging Lender from any of its obligations under the Loan Documents and (ii) such trustee shall not be entitled to exercise any of the rights of a Lender under the Loan Documents even though such trustee may have acquired ownership rights with respect to the pledged interest through foreclosure or otherwise. (k) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Lender”) may grant to a special purpose funding vehicle identified as such in writing from time to time by the Granting Lender to the Administrative Agent and BMCA (an “SPC”) the option to provide all or any part of any Term Loan Advance that such Granting Lender would otherwise be obligated to make pursuant to this Agreement, provided that (i) nothing herein shall constitute a commitment by any SPC to fund any Term Loan Advance, and (ii) if an SPC elects not to exercise such option or otherwise fails to make all or any part of such Term Loan Advance, the Granting Lender shall be obligated to make such Term Loan Advance pursuant to the terms hereof. The making of an Advance by an SPC hereunder shall utilize the Term Loan Commitment of the Granting Lender to the same extent, and as if, such Term Loan Advance were made by such Granting Lender. Each party hereto hereby agrees that (i) no SPC shall be liable for any indemnity or similar payment obligation under this Agreement for which a Lender would be liable, (ii) no SPC shall be entitled to the benefits of Sections 2.09 and 2.11 (or any other increased costs protection provision) and (iii) the Granting Bank shall for all purposes, including the approval of any amendment or waiver of any provision of any Loan Document, remain the Lender of record hereunder. In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior Debt of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency, or liquidation proceeding under the laws of the United States or any State thereof. Notwithstanding anything to the contrary contained in this Agreement, any SPC may (i) with notice to, but without prior consent of, BMCA and the Administrative Agent and with the payment of a processing fee of $500 and without paying any processing fee therefor, assign all or any portion of its interest in any Term Loan Advance to the Granting Lender and (ii) disclose on a confidential basis any non-public information relating to its funding of Term Loan Advance to any rating agency, commercial paper dealer or provider of any surety or guarantee or credit or liquidity enhancement to such SPC. This subsection (k) may not be amended without the prior written consent of each Granting Lender, all or any part of whose Term Loan Advances are being funded by the SPC at the time of such amendment.This

Appears in 1 contract

Samples: Junior Lien Term Loan Agreement (Building Materials Manufacturing Corp)

Assignments and Participations. (a) Each Lender ~~may, upon at least five Business Days’ notice to such Lender and the Administrative Agent,~~ (x) may assign to one or more ~~Eligible Assignees~~ of its Affiliates or Subsidiaries and (y) may with the prior consent of the Administrative Agent and the Borrower (such consents not to be unreasonably withheld or delayed) assign to one or more banks or other entities, all or a portion of its rights and obligations 101 97 under this Agreement (~~including~~ including, without limitation, all or a portion of its ~~Term Loan Commitment~~Commitments, the ~~Term Loan~~ Advances owing to it and the ~~Note or~~ Notes held by it); provided, however, that such assignment or any activity intended to give rise to an assignment shall not be initiated prior to the receipt by the Lenders of notice from the Arrangers that the syndication of this Agreement has been completed; provided further, however, that (i) each such assignment shall be of a uniform, and not a varying, percentage of all such Lender's rights and obligations under ~~this Agreement~~and in respect of the Facility (other than any right to make Competitive Bid Advances or Competitive Bid Advances owing to it), (ii) except in the case of an assignment to a Person ~~that,~~ that immediately prior to such ~~assignment,~~ assignment was a ~~Lender, an Affiliate of any Lender or an Approved Fund of any~~ Lender or an assignment of all of a Lender’s 's rights and obligations under this ~~Agreement,~~ Agreement the ~~aggregate~~ amount of the ~~Term Loan~~ Commitments ~~or Term Loan Advances~~ of the assigning Lender being assigned ~~to such Eligible Assignee~~ pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $5,000,000 (or such lesser amount as shall be approved by the Administrative Agent and, so long as no Default shall have occurred and be continuing at the time of effectiveness of such assignment, BMCA)10,000,000, (iii) each such assignment shall be to ~~an Eligible Assignee, (iv) except in the case of an assignment by a Person that, immediately prior to such assignment, was~~ a Lender, an Eligible Assignee or to ~~one of its Affiliates, no such assignments shall be permitted without the consent~~ an Affiliate or Subsidiary of the ~~Administrative Agent and~~assignor, ~~so long as no Default shall have occurred and be continuing at the time of effectiveness of such assignment, BMCA (in each case, which consents shall not be unreasonably withheld)~~ and (viv) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together with any Note ~~or Notes~~ subject to such ~~assignment~~ assignment, and a processing and recordation fee of $~~3,500. (b)~~ 3,000 for each assignment completed after the notice referred to in the first proviso of this Section 9.07 has been received. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in such Assignment and Acceptance, (ix) the assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, have the rights and obligations of a Lender hereunder and (iiy) the Lender assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights ~~(other than its rights under Sections 2.09, 2.11 and 8.04 to the extent any claim thereunder relates to an event arising prior to such assignment)~~ and be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all of or the remaining portion of an assigning Lender’s 's rights and obligations under this Agreement, such Lender shall cease to be a party hereto). (cb) By executing and delivering an Assignment and Acceptance, ~~each~~ the Lender assignor thereunder and ~~each~~ the assignee thereunder confirm to and agree with each other and the other parties ~~thereto and~~ hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with ~~any Loan Document~~ this Agreement or the execution, legality, 102 98 validity, enforceability, genuineness, sufficiency or value of, or the perfection or priority of any ~~lien or security interest~~ Lien created or purported to be created under or in connection with, ~~any Loan Document~~ this Agreement or any other instrument or document furnished pursuant ~~thereto~~hereto; (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of the Borrower or any ~~Loan~~ other Obligated Party or the performance or observance by the Borrower or any ~~Loan~~ other Obligated Party of any of its obligations under ~~any Loan Document~~ this Agreement or any other instrument or document furnished pursuant ~~thereto~~hereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 4.01 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) such assignee will, independently and without reliance upon ~~any~~ the Administrative Agent, such assigning Lender or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) such assignee confirms that it is a Lender, an Eligible ~~Assignee~~Assignee or an Affiliate of the assignor; (vi) such assignee appoints and authorizes ~~each~~ the Administrative Agent to take such action as agent on its behalf and to exercise such powers and discretion under ~~the Loan Documents~~ this Agreement as are delegated to ~~such~~ the Administrative Agent by the terms ~~hereof and thereof~~hereof, together with such powers and discretion as are reasonably incidental thereto; and (vii) such assignee agrees that it will perform in accordance with their terms all of the obligations that by the terms of this Agreement are required to be performed by it as a Lender. (dc) The Administrative Agent ~~acting for this purpose (but only for this purpose) as the agent of the Borrowers,~~ shall maintain at its address referred to in Section ~~8.02~~ 9.02 a copy of each Assumption Agreement and each Assignment and Acceptance delivered to and accepted by it and a register for the recordation of the names and addresses of the Lenders and the ~~Term Loan~~ Commitment of, and principal amount of the ~~Term Loan~~ 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 ~~Borrowers~~Borrower, the ~~Agents~~ Administrative Agent and the Lenders ~~shall~~ 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 Agent~~ Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice. (e) Notwithstanding anything to the contrary contained in clause (b) above, the Term Loan Advances (including the Notes evidencing such Term Loan Advances) are registered obligations and the right, title, and interest of the Lenders and their assignees in and to such Term Loan Advances shall be transferable only upon notation of such transfer in the Register. A Note shall only evidence the Lender’s or an assignee’s right title and interest in and to the related Term Loan Advance, and in no event is any such Note to be considered a bearer instrument or obligation. This Section 8.07 shall be construed so that the Term Loan Advances are at all times maintained in “registered form” within the meaning of sections 163(f), 871(h)(2) and 881(c)(2) of the Internal Revenue Code and any related regulations (or any successor provisions of the Internal Revenue Code or such regulations). Solely for purposes of this and for tax purposes only, the Administrative Agent shall act as each Borrower’s agent for purposes of maintaining such notations of transfer in the Register. (fd) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee, together with 103 99 any Note or Notes subject to such assignment, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit C hereto, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to ~~BMCA and each other Agent~~the Borrower. ~~In the case of any assignment by a Lender, within~~ Within five Business Days after its receipt of such notice, the ~~Borrowers~~Borrower, at ~~their~~ its own expense, ~~shall, if requested by the assignee,~~ shall execute and deliver to the Administrative Agent in exchange for the surrendered Note or Notes ~~an amended and restated~~ a new Note ~~(which shall be marked “Amended and Restated”)~~ or Notes to the order of such ~~Eligible Assignee~~ assignee in an amount equal to the ~~Term Loan~~ Commitment assumed by it ~~under each Facility~~ pursuant to such Assignment and Acceptance and, if ~~any~~ the assigning Lender has retained a ~~Term Loan~~ Commitment ~~hereunder under such Facility and has requested a replacement Note~~hereunder, ~~an amended and restated Note~~ new Notes to the order of ~~such~~ the assigning Lender in an aggregate amount equal to the ~~Term Loan Commitment~~ aggregate Commitments retained by it hereunder. Such ~~amended and restated~~ 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 Assignment and Acceptance and shall otherwise be in substantially the form of Exhibit A A-1 hereto. (ge) Each Lender may sell participations ~~to one or more Persons (other than any Loan Party or any of its Affiliates)~~ in or to all or a portion of its rights and obligations under this Agreement (~~including~~ including, without limitation, all or a portion of its ~~Term Loan~~ Commitments, the ~~Term Loan~~ Advances owing to it and the Note or Notes ~~(if any)~~ held by it); provided, however, that (i) such Lender’s 's obligations under this Agreement (~~including~~ including, without limitation, its ~~Term Loan~~ Commitments) shall remain unchanged, (ii) 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 or Notes for all purposes of this Agreement, (iv) the ~~Borrowers~~Borrower, the Agents and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s 's rights and obligations under this Agreement and (v) no participant under any such participation and no sub-participant of such participation shall have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by ~~any Loan Party~~ the Borrower therefrom, except to the extent that such amendment, waiver or consent ~~requires~~ would directly: reduce the ~~consent~~ stated rate of interest borne by the Advances owing to such participant (other than as a result of waiving the applicability of any post-default increase in interest rates), forgive all ~~Lenders.~~or any part of the principal amount thereof, reduce the stated rate for calculating any commitment fee owing to the Lenders or extend the final scheduled maturity of any Advance owing to such participant, in each case to the extent subject to such participation. 104 100 (hf) Any Lender may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section ~~8.07~~9.07, disclose to the assignee or participant or proposed assignee or ~~participant~~ participant, any information relating to the ~~Borrowers~~ Borrower furnished to such Lender by or on behalf of the ~~Borrowers~~Borrower; provided, however, that, prior to any such disclosure, the assignee or participant or proposed assignee or participant shall ~~agree~~ have executed a confidentiality agreement substantially in the form of Exhibit F hereto and returned to ~~preserve the confidentiality of any Confidential Information received by it from~~ same to such Lender ~~in accordance with~~ and the ~~terms of Section 8.09~~Borrower. (ig) Notwithstanding any other provision set forth in this Agreement, any Lender may at any time create a security interest in all or any portion of its rights under this Agreement (~~including~~ including, without limitation, the ~~Term Loan~~ 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 System. (j) Notwithstanding anything to the contrary contained herein, any Lender that is a fund that invests in bank loans may create a security interest in all or any portion of the Term Loan Advances owing to it and the Note or Notes held by it to the trustee for holders of obligations owed, or securities issued, by such fund as security for such obligations or securities, provided, that unless and until such trustee actually becomes a Lender in compliance with the other provisions of this Section 8.07, (i) no such pledge shall release the pledging Lender from any of its obligations under the Loan Documents and (ii) such trustee shall not be entitled to exercise any of the rights of a Lender under the Loan Documents even though such trustee may have acquired ownership rights with respect to the pledged interest through foreclosure or otherwise. (k) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Lender”) may grant to a special purpose funding vehicle identified as such in writing from time to time by the Granting Lender to the Administrative Agent and BMCA (an “SPC”) the option to provide all or any part of any Term Loan Advance that such Granting Lender would otherwise be obligated to make pursuant to this Agreement, provided that (i) nothing herein shall constitute a commitment by any SPC to fund any Term Loan Advance, and (ii) if an SPC elects not to exercise such option or otherwise fails to make all or any part of such Term Loan Advance, the Granting Lender shall be obligated to make such Term Loan Advance pursuant to the terms hereof. The making of an Advance by an SPC hereunder shall utilize the Term Loan Commitment of the Granting Lender to the same extent, and as if, such Term Loan Advance were made by such Granting Lender. Each party hereto hereby agrees that (i) no SPC shall be liable for any indemnity or similar payment obligation under this Agreement for which a Lender would be liable, (ii) no SPC shall be entitled to the benefits of Sections 2.09 and 2.11 (or any other increased costs protection provision) and (iii) the Granting Bank shall for all purposes, including the approval of any amendment or waiver of any provision of any Loan Document, remain the Lender of record hereunder. In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior Debt of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency, or liquidation proceeding under the laws of the United States or any State thereof. Notwithstanding anything to the contrary contained in this Agreement, any SPC may (i) with notice to, but without prior consent of, BMCA and the Administrative Agent and with the payment of a processing fee of $500 and without paying any processing fee therefor, assign all or any portion of its interest in any Term Loan Advance to the Granting Lender and (ii) disclose on a confidential basis any non-public information relating to its funding of Term Loan Advance to any rating agency, commercial paper dealer or provider of any surety or guarantee or credit or liquidity enhancement to such SPC. This subsection (k) may not be amended without the prior written consent of each Granting Lender, all or any part of whose Term Loan Advances are being funded by the SPC at the time of such amendment.

Appears in 1 contract

Samples: 364 Day Credit Agreement (Borden Inc)

Assignments and Participations. (a) Each Lender ~~may~~may and, so long as no Default shall have occurred and be continuing, if demanded by the Borrowers (following a demand by such Lender pursuant to Section 2.10 or 2.12) upon at least five Business Days’ ' notice to such Lender and the Administrative Agent, will assign to one or more Eligible Assignees all or a portion of its rights and obligations under this Agreement (~~including~~ including, without limitation, all or a portion of its ~~Term Loan Commitment~~Commitment or Commitments, the ~~Term Loan~~ Advances owing to it and the Note or Notes held by it); provided, however, that (i) each such assignment shall be of a uniform, and not a varying, percentage of all rights and obligations under ~~this Agreement~~and in respect of one or more Facilities, (ii) except in the case of an assignment to a Person that, immediately prior to such assignment, was a Lender, an Affiliate of any Lender or an Approved Fund of any Lender or an assignment of all of a Lender’s 's rights and obligations under this Agreement, the aggregate amount of the ~~Term Loan~~ Commitments ~~or Term Loan Advances~~ being assigned to such Eligible Assignee pursuant to such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $5,000,000 or an integral multiple of $1,000,000 in excess thereof (or such lesser amount as shall be approved by the Administrative Agent and, so long as no Default shall have occurred and be continuing at the time of effectiveness of such assignment, ~~BMCA)~~the Borrowers) under each Facility for which a Commitment is being assigned, (iii) each such assignment shall be to an Eligible Assignee, (iv) ~~except in~~ each such assignment made as a result of a demand by the ~~case of~~ Borrowers pursuant to this Section 9.07(a) shall be arranged by the Borrowers after consultation with the Administrative Agent and shall be either an assignment of all of the rights and obligations of the assigning Lender under this Agreement or an assignment of a portion of such rights and obligations made concurrently with another such assignment or other such assignments that together cover all of the rights and obligations of the assigning Lender under this Agreement, (v) no Lender shall be obligated to make any such assignment as a result of a demand by ~~a Person that, immediately prior~~ the Borrowers pursuant to this Section 9.07(a) unless and until such Lender shall have received one or more payments from either the Borrowers or one or more Eligible Assignees in an aggregate amount at least equal to the aggregate outstanding principal amount of the Advances owing to such ~~assignment, was a~~ Lender, together with accrued interest thereon to ~~one~~ the date of ~~its Affiliates~~payment of such principal amount and all other amounts payable to such Lender under this Agreement, (vi) no such assignments shall be permitted without the consent of the Administrative Agent ~~and, so long as no Default~~ until the Administrative Agent shall have ~~occurred and be continuing at~~ notified the ~~time~~ Lender Parties that syndication of ~~effectiveness of such assignment, BMCA (in each case, which consents shall not be unreasonably withheld)~~ the Commitments hereunder has been completed and (vvii) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together with any Note or Notes subject to such assignment and a processing and recordation fee of $3,500; provided, however, that for each such assignment made as a result of a demand by any Borrower pursuant to this Section 9.07(a), such Borrower shall pay to the Administrative Agent the applicable processing and recordation fee. (b) Upon such execution, delivery, acceptance and recording, from and after the effective date specified in such 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, have the rights and obligations of a Lender or Issuing Bank, as the case may be, hereunder and (ii) the Lender or Issuing Bank assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (other than its rights under Sections ~~2.09~~2.10, ~~2.11~~ 2.12 and ~~8.04~~ 9.04 to the extent any claim thereunder relates to an event arising prior to such assignment) and be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all of the remaining portion of an assigning Lender’s 's or Issuing Bank's rights and obligations under this Agreement, such Lender or Issuing Bank shall cease to be a party hereto). (c) By executing and delivering an Assignment and Acceptance, each Lender Party assignor thereunder and each assignee thereunder confirm to and agree with each other and the other parties thereto and hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender Party makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with any Loan Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value of, or the perfection or priority of any lien or security interest created or purported to be created under or in connection with, any Loan Document or any other instrument or document furnished pursuant thereto; (ii) such assigning Lender Party makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party or the performance or observance by any Loan Party of any of its obligations under any Loan Document or any other instrument or document furnished pursuant thereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 4.01 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) such assignee will, independently and without reliance upon any Agent, such assigning Lender Party or any other Lender Party and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) such assignee confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes each Agent to take such action as agent on its behalf and to exercise such powers and discretion under the Loan Documents as are delegated to such Agent by the terms hereof and thereof, together with such powers and discretion as are reasonably incidental thereto; and (vii) such assignee agrees that it will perform in accordance with their terms all of the obligations that by the terms of this Agreement are required to be performed by it as a ~~Lender~~Lender or Issuing Bank, as the case may be. (d) The Administrative Agent ~~acting for this purpose (but only for this purpose) as the agent of the Borrowers,~~ shall maintain at its address referred to in Section ~~8.02~~ 9.02 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 ~~Lenders~~ Lender Parties and the ~~Term Loan~~ Commitment under each Facility of, and principal amount of the ~~Term Loan~~ Advances owing under each Facility to, each Lender Party from time to time (the “"Register”"). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and ~~the Borrowers~~each Borrower, the Agents and the ~~Lenders shall~~ Lender Parties may treat each Person whose name is recorded in the Register as a Lender Party hereunder for all purposes of this Agreement. The Register shall be available for inspection by ~~the Borrowers~~ any Borrower or any Agent or any Lender Party at any reasonable time and from time to time upon reasonable prior notice. (e) Notwithstanding anything to the contrary contained in clause (b) above, the Term Loan Advances (including the Notes evidencing such Term Loan Advances) are registered obligations and the right, title, and interest of the Lenders and their assignees in and to such Term Loan Advances shall be transferable only upon notation of such transfer in the Register. A Note shall only evidence the Lender’s or an assignee’s right title and interest in and to the related Term Loan Advance, and in no event is any such Note to be considered a bearer instrument or obligation. This Section 8.07 shall be construed so that the Term Loan Advances are at all times maintained in “registered form” within the meaning of sections 163(f), 871(h)(2) and 881(c)(2) of the Internal Revenue Code and any related regulations (or any successor provisions of the Internal Revenue Code or such regulations). Solely for purposes of this and for tax purposes only, the Administrative Agent shall act as each Borrower’s agent for purposes of maintaining such notations of transfer in the Register. (f) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender Party and an assignee, together with any Note or Notes subject to such assignment, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit C hereto, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to ~~BMCA~~ the Borrowers and each other Agent. In the case of any assignment by a Lender, within five Business Days after its receipt of such notice, ~~the Borrowers~~each Borrower, at ~~their~~ its own expense, ~~shall, if requested by the assignee,~~ shall execute and deliver to the Administrative Agent in exchange for the surrendered Note or Notes ~~an amended and restated~~ a new Note ~~(which shall be marked “Amended and Restated”)~~ to the order of such Eligible Assignee in an amount equal to the ~~Term Loan~~ Commitment assumed by it under each Facility pursuant to such Assignment and Acceptance and, if any assigning Lender has retained a ~~Term Loan~~ Commitment hereunder under such ~~Facility and has requested~~ Facility, a ~~replacement Note, an amended and restated~~ new Note to the order of such assigning Lender in an amount equal to the ~~Term Loan~~ Commitment retained by it hereunder. Such ~~amended and restated~~ 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 Assignment and Acceptance and shall otherwise be in substantially the form of Exhibit A A-1 or A-2 hereto, as the case may be. (f) Each Issuing Bank may assign to one or more Eligible Assignees all or a portion of its rights and obligations under the undrawn portion of its Letter of Credit Commitment at any time; provided, however, that (i) except in the case of an assignment to a Person that immediately prior to such assignment was an Issuing Bank or an assignment of all of an Issuing Bank's rights and obligations under this Agreement, the amount of the Letter of Credit Commitment of the assigning Issuing Bank being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $5,000,000 and shall be in an integral multiple of $1,000,000 in excess thereof, (ii) each such assignment shall be to an Eligible Assignee and (iii) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together with a processing and recordation fee of $3,500. (g) Each Lender Party may sell participations to one or more Persons (other than any Loan Party or any of its Affiliates) in or to all or a portion of its rights and obligations under this Agreement (~~including~~ including, without limitation, all or a portion of its ~~Term Loan~~ Commitments, the ~~Term Loan~~ Advances owing to it and the Note or Notes (if any) held by it); provided, however, that (i) such ~~Lender’s~~ Lender Party's obligations under this Agreement (~~including~~ including, without limitation, its ~~Term Loan~~ Commitments) shall remain unchanged, (ii) such Lender Party shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) such Lender Party shall remain the holder of any such Note for all purposes of this Agreement, (iv) the Borrowers, the Agents and the other ~~Lenders~~ Lender Parties shall continue to deal solely and directly with such Lender Party in connection with such ~~Lender’s~~ Lender Party's rights and obligations under this Agreement and (v) no participant under any such participation shall have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent ~~requires~~ would reduce the ~~consent~~ principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, postpone any date fixed for any payment of principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, or release all ~~Lenders~~or substantially all of the Collateral. (h) Any Lender Party may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section ~~8.07~~9.07, disclose to the assignee or participant or proposed assignee or participant any information relating to the Borrowers furnished to such Lender Party by or on behalf of the Borrowers; provided, however, 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 received by it from such Lender ~~in accordance with the terms of Section 8.09~~Party. (i) Notwithstanding any other provision set forth in this Agreement, any Lender Party may at any time create a security interest in all or any portion of its rights under this Agreement (~~including~~ including, without limitation, the ~~Term Loan~~ 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 System. (j) Notwithstanding anything to the contrary contained herein, any Lender that is a fund that invests in bank loans may create a security interest in all or any portion of the Term Loan Advances owing to it and the Note or Notes held by it to the trustee for holders of obligations owed, or securities issued, by such fund as security for such obligations or securities, provided, that unless and until such trustee actually becomes a Lender in compliance with the other provisions of this Section 8.07Party, (~~i) no such pledge shall release the pledging Lender from any of its obligations under the Loan Documents and (ii) such trustee shall not be entitled to exercise any of the rights of~~ a Lender under the Loan Documents even though such trustee may have acquired ownership rights with respect to the pledged interest through foreclosure or otherwise. (k) Notwithstanding anything to the contrary contained herein, any Lender (a “"Granting Lender”") may grant to a special purpose funding vehicle identified as such in writing from time to time by the Granting Lender to the Administrative Agent and ~~BMCA~~ the Borrowers (an “"SPC”") the option to provide all or any part of any ~~Term Loan~~ Advance that such Granting Lender would otherwise be obligated to make pursuant to this Agreement, ; provided that (i) nothing herein shall constitute a commitment by any SPC to fund any ~~Term Loan~~ Advance, and (ii) if an SPC elects not to exercise such option or otherwise fails to make all or any part of such ~~Term Loan~~ Advance, the Granting Lender shall be obligated to make such ~~Term Loan~~ Advance pursuant to the terms hereof. The making of an Advance by an SPC hereunder shall utilize the ~~Term Loan~~ Commitment of the Granting Lender to the same extent, and as if, such ~~Term Loan~~ Advance were made by such Granting Lender. Each party hereto hereby agrees that (i) no SPC shall be liable for any indemnity or similar payment obligation under this Agreement for which a Lender Party would otherwise be ~~liable~~liable for so long as, and to the extent, the Granting Lender provides such indemnity or makes such payment and (ii) no SPC shall be entitled to the benefits of Sections ~~2.09~~ 2.10 and ~~2.11~~ 2.12 (or any other increased costs protection provision~~) and (iii) the Granting Bank shall for all purposes, including the approval of any amendment or waiver of any provision of any Loan Document, remain the Lender of record hereunder~~). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior Debt of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency, or liquidation proceeding under the laws of the United States or any State thereof. Notwithstanding anything to the contrary contained in this Agreement, any SPC may (i) with notice to, but without prior consent of, ~~BMCA~~ the Borrower, the Syndication Agent and the Administrative Agent ~~and with the payment of a processing fee of $500~~ and without paying any processing fee therefor, assign all or any portion of its interest in any ~~Term Loan~~ Advance to the Granting Lender and (ii) disclose on a confidential basis any non-public information relating to its funding of ~~Term Loan Advance~~ Advances to any rating agency, commercial paper dealer or provider of any surety or guarantee or credit or liquidity enhancement to such SPC. This subsection (k9.07(j) may not be amended without the prior written consent of each Granting Lender, all or any part of whose ~~Term Loan~~ Advances are being funded by the SPC at the time of such amendment. For the avoidance of doubt, with respect to the Agents, the other Lender Parties and the Borrowers, the Granting Bank shall for all purposes, including, without limitation, the approval of any amendment or waiver of any provision of any Loan Document, be the Lender Party of record hereunder.

Appears in 1 contract

Samples: Credit Agreement (Cincinnati Bell Inc /Oh/)

Assignments and Participations. (a) Each Lender may, and, if demanded by the Company (following (i) a demand by such Lender for the payment of, or the incurrence by a Borrower of any obligation to pay, additional compensation pursuant to Section 2.07(c), 2.11 or 2.14 or (ii) an assertion by such Lender pursuant to Section 2.12 that it is impracticable or unlawful for such Lender to make Eurodollar Rate Advances), upon at least ~~five~~ 30 Business Days’ ' notice to such Lender and the Administrative Agent, each Lender will, assign to one or more ~~Eligible Assignees~~ Persons all or a portion of its rights and obligations under this Agreement (~~including~~ including, without limitation, all or a portion of its ~~Term Loan~~ Revolving Credit Commitment, its unused Letter of Credit Commitment, the ~~Term Loan~~ Advances owing to it it, its participations in Letters of Credit and ~~the~~ any Note or Notes held by it); provided, however, ~~that~~ that: (iA) each such assignment shall be of a ~~uniform~~constant, and not a varying, percentage of all rights and obligations under this Agreement, ; (iiB) except in the case of an assignment to a Person that, immediately prior to such assignment, was a ~~Lender, an Affiliate of any Lender or an Approved Fund of any~~ Lender or an assignment of all of a Lender’s 's rights and obligations under this Agreement, (x) the ~~aggregate~~ amount of the ~~Term Loan Commitments or Term Loan Advances~~ Revolving Credit Commitment of the assigning Lender being assigned ~~to such Eligible Assignee~~ pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall be $10,000,000 or an integral multiple of $1,000,000 in excess thereof and (y) the undrawn Letter of Credit Commitment of the assigning Lender being assigned pursuant to each such assignment (determined as of the date of the applicable Assignment and Acceptance with respect to such assignment) shall in no event be less than $~~5,000,000 (or such lesser amount as shall be approved by~~ 1,000,000, unless, in each case, the Company and the Administrative Agent ~~and, so long as no Default shall have occurred and be continuing at the time of effectiveness of such assignment, BMCA),~~ otherwise agree; (~~iii~~C) each such assignment shall be to an Eligible Assignee, ; (ivD) ~~except in~~ each such assignment made as a result of a demand by the ~~case of an assignment by a Person that, immediately prior~~ Company pursuant to ~~such assignment, was a Lender, to one of its Affiliates, no such assignments~~ this Section 9.07(a) shall be ~~permitted without~~ arranged by the ~~consent~~ Company with the approval of the Administrative ~~Agent and, so long as no Default shall have occurred and be continuing at the time of effectiveness of such assignment, BMCA (in each case~~Agent, which ~~consents~~ approval shall not be unreasonably ~~withheld~~withheld or delayed, and shall be either an assignment of all of the rights and obligations of the assigning Lender under this Agreement or an assignment of a portion of such rights and obligations made concurrently with another such assignment or other such assignments that, in the aggregate, cover all of the rights and obligations of the assigning Lender under this Agreement; (E) no Lender shall be obligated to make any assignment as a result of a demand by the Company pursuant to this Section 9.07(a) unless and until such Lender shall have received one or more payments from (1) one or more Eligible Assignees in an aggregate amount at least equal to the aggregate outstanding principal amount of all Advances owing to such Lender, together with accrued interest on such Advances to the date of payment of such principal amount, and (v2) the Company and/or one or more Eligible Assignees in an aggregate amount equal to all other amounts payable to such Lender under this Agreement and the Notes (including, without limitation, any amounts owing under Sections 2.07(c), 2.11 and 2.14); and (F) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together with any Note ~~or Notes~~ subject to such assignment, and each Eligible Assignee party to such assignment ~~and~~ shall pay a processing and recordation fee of $3,500~~. (b~~; provided further, however, that no Person to which an assignment is being made in accordance with this Section 9.07(a) shall be entitled to any additional compensation under Sections 2.11, 2.12 and 2.14 in excess of the aggregate amounts payable under such Sections to the Lender making such assignment prior to the effective date of such Assignment and Acceptance, unless such additional compensation is payable to such Person as a result of the adoption or enactment of, or changes in or in the applicability, the interpretation or the implementation of, any law, rule, regulation, directive, guideline or request after such effective date. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in ~~such~~ each Assignment and Acceptance, (i1) the assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, have the rights and obligations of a Lender hereunder and (ii2) the Lender assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights ~~(other than its rights under Sections 2.09, 2.11 and 8.04 to the extent any claim thereunder relates to an event arising prior to such assignment)~~ and be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all of or the remaining portion of an assigning Lender’s 's rights and obligations under this Agreement, such Lender shall cease to be a party hereto)) provided that such assigning Lender's rights under Sections 2.11, 2.14 and 9.04, and its obligations under Section 8.05, shall survive the effective date of such Assignment and Acceptance for such Lender as to matters occurring prior to such effective date. (cb) By executing and delivering an Assignment and Acceptance, ~~each~~ the Lender assignor thereunder and ~~each~~ the assignee thereunder confirm to and agree with each other and the other parties ~~thereto and~~ hereto as follows: : (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with ~~any Loan Document~~ this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value ofof this Agreement or any Note, ~~or the perfection or priority of any lien or security interest created or purported to be created under or in connection with, any Loan Document~~ or any other instrument or document furnished pursuant ~~thereto;~~ hereto; (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any ~~Loan Party~~ Borrower or the performance or observance by any ~~Loan Party~~ Borrower of any of its obligations under this Agreement or any ~~Loan Document~~ Note, or any other instrument or document furnished pursuant ~~thereto;~~ hereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section ~~4.01~~ 4.01(e) and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; ; (iv) such assignee will, independently and without reliance upon ~~any~~ the Administrative Agent, such assigning Lender or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; ; (v) such assignee confirms that it is an Eligible Assignee; ; (vi) such assignee appoints and authorizes ~~each~~ the Administrative Agent to take such action as agent on its behalf and to exercise such powers and discretion under ~~the Loan Documents~~ this Agreement as are delegated to ~~such~~ the Administrative Agent by the terms ~~hereof and thereof~~hereof, together with such powers and discretion as are reasonably incidental thereto; ~~and~~ and (vii) such assignee agrees that it will perform in accordance with their terms all of the obligations that by the terms of this Agreement are required to be performed by it as a Lender. (d) The Administrative Agent acting for this purpose (but only for this purpose) as the agent of the Borrowers, shall maintain at its address referred to in Section 8.02 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 Lenders and the Term Loan Commitment of, and principal amount of the Term Loan Advances 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 Borrowers, the Agents and the Lenders shall treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrowers or any Agent or any Lender at any reasonable time and from time to time upon reasonable prior notice. (e) Notwithstanding anything to the contrary contained in clause (b) above, the Term Loan Advances (including the Notes evidencing such Term Loan Advances) are registered obligations and the right, title, and interest of the Lenders and their assignees in and to such Term Loan Advances shall be transferable only upon notation of such transfer in the Register. A Note shall only evidence the Lender’s or an assignee’s right title and interest in and to the related Term Loan Advance, and in no event is any such Note to be considered a bearer instrument or obligation. This Section 8.07 shall be construed so that the Term Loan Advances are at all times maintained in “registered form” within the meaning of sections 163(f), 871(h)(2) and 881(c)(2) of the Internal Revenue Code and any related regulations (or any successor provisions of the Internal Revenue Code or such regulations). Solely for purposes of this and for tax purposes only, the Administrative Agent shall act as each Borrower’s agent for purposes of maintaining such notations of transfer in the Register. (fc) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an ~~assignee~~assignee representing that it is an Eligible Assignee, together with any Note or Notes subject to such assignment, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit C hereto, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to ~~BMCA and each other Agent~~the Company. ~~In the case of any assignment by a Lender, within five~~ Within ten Business Days after ~~its~~ receipt of such ~~notice~~notice by the Company, ~~the Borrowers~~each Borrower shall, at ~~their~~ its own expense~~, shall, if requested by the assignee~~, execute and deliver to the Administrative Agent in exchange for the surrendered Note ~~or Notes an amended and restated~~ a new Note ~~(which shall be marked “Amended and Restated”)~~ from such Borrower to the order of such Eligible Assignee in an amount equal to the ~~Term Loan~~ Revolving Credit Commitment assumed by it ~~under each Facility~~ pursuant to such Assignment and Acceptance and, if ~~any~~ the assigning Lender has retained a ~~Term Loan~~ Revolving Credit Commitment ~~hereunder under such Facility and has requested~~ hereunder, a ~~replacement Note, an amended and restated~~ new Note to the order of ~~such~~ the assigning Lender in an amount equal to the ~~Term Loan~~ Revolving Credit Commitment retained by it hereunder. Such ~~amended and restated~~ 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 Assignment and Acceptance and shall otherwise be in substantially the form of Exhibit A A-1 hereto. Upon the Administrative Agent's receipt of notice from the assigning Lender that such assigning Lender is satisfied with the form and substance of such new Notes, the Administrative Agent shall, at the expense of the Borrowers, cancel the surrendered Notes of such assigning Lender and deliver to the Company such cancelled Notes. (gd) ~~Each Lender may sell participations~~ The Administrative Agent shall maintain at its address referred to ~~one or more Persons (other than any Loan Party or any~~ in Section 9.02(a) a copy of ~~its Affiliates~~each Assignment and Acceptance delivered to and accepted by it and a register for the recordation of the names and addresses of the Lenders and the Commitment(s) ~~in or to all or a portion~~ of, and the principal amount of ~~its rights and obligations under this Agreement (including all or a portion of its Term Loan Commitments,~~ the ~~Term Loan~~ Advances owing to it 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 ~~Note or Notes (if any) held by it); provided~~Borrowers, ~~however, that (i) such Lender’s obligations under this Agreement (including its Term Loan Commitments) shall remain unchanged, (ii) such~~ the Administrative Agent and the Lenders may treat each Person whose name is recorded in the Register as a 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~~ hereunder for all purposes of this Agreement, (iv) the Borrowers, the Agents and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and (v) no participant under any such participation shall have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent requires the consent of all Lenders. (h) Any Lender may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section 8.07, disclose to the assignee or participant or proposed assignee or participant any information relating to the Borrowers furnished to such Lender by or on behalf of the Borrowers; provided, however, 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 received by it from such Lender in accordance with the terms of Section 8.09. (i) Notwithstanding any other provision set forth in this Agreement, any Lender may at any time create a security interest in all or any portion of its rights under this Agreement (including the Term Loan 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 System. (j) Notwithstanding anything to the contrary contained herein, any Lender that is a fund that invests in bank loans may create a security interest in all or any portion of the Term Loan Advances owing to it and the Note or Notes held by it to the trustee for holders of obligations owed, or securities issued, by such fund as security for such obligations or securities, provided, that unless and until such trustee actually becomes a Lender in compliance with the other provisions of this Section 8.07, (i) no such pledge shall release the pledging Lender from any of its obligations under the Loan Documents and (ii) such trustee shall not be entitled to exercise any of the rights of a Lender under the Loan Documents even though such trustee may have acquired ownership rights with respect to the pledged interest through foreclosure or otherwise. (k) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Lender”) may grant to a special purpose funding vehicle identified as such in writing from time to time by the Granting Lender to the Administrative Agent and BMCA (an “SPC”) the option to provide all or any part of any Term Loan Advance that such Granting Lender would otherwise be obligated to make pursuant to this Agreement, provided that (i) nothing herein shall constitute a commitment by any SPC to fund any Term Loan Advance, and (ii) if an SPC elects not to exercise such option or otherwise fails to make all or any part of such Term Loan Advance, the Granting Lender shall be obligated to make such Term Loan Advance pursuant to the terms hereof. The making of an Advance by an SPC hereunder shall utilize the Term Loan Commitment of the Granting Lender to the same extent, and as if, such Term Loan Advance were made by such Granting Lender. Each party hereto hereby agrees that (i) no SPC shall be liable for any indemnity or similar payment obligation under this Agreement for which a Lender would be liable, (ii) no SPC shall be entitled to the benefits of Sections 2.09 and 2.11 (or any other increased costs protection provision) and (iii) the Granting Bank shall for all purposes, including the approval of any amendment or waiver of any provision of any Loan Document, remain the Lender of record hereunder. In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior Debt of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency, or liquidation proceeding under the laws of the United States or any State thereof. Notwithstanding anything to the contrary contained in this Agreement, any SPC may (i) with notice to, but without prior consent of, BMCA and the Administrative Agent and with the payment of a processing fee of $500 and without paying any processing fee therefor, assign all or any portion of its interest in any Term Loan Advance to the Granting Lender and (ii) disclose on a confidential basis any non-public information relating to its funding of Term Loan Advance to any rating agency, commercial paper dealer or provider of any surety or guarantee or credit or liquidity enhancement to such SPC. This subsection (k) may not be amended without the prior written consent of each Granting Lender, all or any part of whose Term Loan Advances are being funded by the SPC at the time of such amendment.this

Appears in 1 contract

Samples: Credit Agreement (Black & Decker Corp)

Assignments and Participations. (a) Each Lender ~~may, upon at least five Business Days’ notice to such Lender and the Administrative Agent,~~ may assign to one or more ~~Eligible Assignees~~ banks or other entities all or a portion of its rights and obligations under this Agreement (~~including~~ including, without limitation, all or a portion of its ~~Term Loan Commitment~~Commitment or Commitments, the ~~Term Loan Advances~~ Loans owing to it and ~~the~~ any Note or Notes held by it); provided, however, -------- ------- that (i) each such assignment shall be of a uniform, and not a varying, percentage of all rights and obligations under ~~this Agreement~~and in respect of (A) all of the Facilities, (B) the Revolving Facility and the Term A Facility, or (C) the Term B Facility, (ii) except in the case of an assignment to a Person that, immediately prior to such assignment, was a ~~Lender, an Affiliate of any~~ Lender or an Affiliate or Approved Fund of ~~any~~ a Lender or an assignment of all of a Lender’s 's rights and obligations under this ~~Agreement~~Agreement or in respect of any Facility, the ~~aggregate~~ amount of the ~~Term Loan~~ Commitments ~~or Term Loan Advances~~ and/or Loans of the assigning Lender 119 being assigned ~~to such Eligible Assignee~~ pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $~~5,000,000 (or such lesser amount as~~ 1,000,000, and shall be ~~approved by the Administrative Agent and, so long as no Default shall have occurred and be continuing at the time~~ in integral multiples of ~~effectiveness of such assignment, BMCA)~~$100,000 in excess thereof, (iii) each such assignment shall be to an Eligible ~~Assignee~~Assignee or to an Affiliate or Approved Fund of the assignor, (iv) except ~~in the case of an assignment~~ for any assignments by ~~a Person that, immediately prior to such assignment, was a Lender, to one of its Affiliates, no such assignments shall be permitted without the consent of~~ the Administrative Agent ~~and~~and any assignments to another Lender or an Affiliate, ~~so long as no~~ SPV or Approved Fund of the assigning Lender or of any other Lender, each assignment shall require the written consent of (A) the Administrative Agent and (B) unless a Default ~~shall have~~ or Event of Default has occurred and ~~be continuing at~~ is continuing, the ~~time of effectiveness of~~ Borrower, such ~~assignment, BMCA (~~consent in each ~~case, which consents shall~~ case not to be unreasonably ~~withheld)~~ withheld or delayed, and (v) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together with any Note or Notes subject to such assignment and a processing and recordation fee of $3,500. ; provided, however, that no such -------- ------- fee shall be payable in the case of an assignment to an Affiliate, SPV or Approved Fund of the assigning Lender; and provided further that, in the -------- ------- case of contemporaneous assignments by a Lender to more than one fund managed by the same investment advisor (b) which funds are not then Lenders hereunder), only a single such $3,500 fee shall be payable for all such contemporaneous assignments. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in such Assignment and Acceptance, (ix) the assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, have (in addition to any such rights and obligations theretofore held by it) the rights and obligations of a Lender hereunder and (iiy) the Lender assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights ~~(other than its rights under Sections 2.09, 2.11 and 8.04 to the extent any claim thereunder relates to an event arising prior to such assignment)~~ and be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all of or the remaining portion of an assigning Lender’s 's rights and obligations under this Agreement, such Lender shall cease to be a party hereto). (cb) By executing and delivering an Assignment and Acceptance, ~~each~~ the Lender assignor thereunder and ~~each~~ the assignee thereunder confirm to and agree with each other and the other parties ~~thereto and~~ hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or any other Loan Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value of, or the perfection or priority of any ~~lien~~ Lien or security interest created or purported to be created under or in connection with, this Agreement or any other Loan Document or any other instrument or document furnished pursuant hereto or thereto; (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of the Borrower or any other Loan Party or the performance or observance by any Loan Party of any of its obligations under any Loan Document or any other instrument or document furnished pursuant thereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 4.01 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) such assignee will, independently and without reliance upon any Agent, such assigning Lender or any other Lender Party and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) such assignee confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes ~~each~~ the Administrative Agent to take such action as agent on its behalf and to exercise such powers and discretion under the Loan Documents as are delegated to ~~such~~ the Administrative Agent by the terms ~~hereof and thereof~~hereof, together with such powers and discretion as are reasonably incidental thereto; and (vii) such assignee agrees that it will perform in accordance with their terms all of the obligations ~~that~~ which by the terms of this Agreement are required to be performed by it as a ~~Lender~~Lender or Issuing Bank, as the case may be, and shall be bound by the terms of the Intercreditor Agreement. (dc) The Administrative Agent ~~acting for this purpose (but only for this purpose) as the agent of the Borrowers,~~ shall maintain at its address referred to in Section ~~8.02~~ 9.02 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 Lenders and the ~~Term Loan~~ Commitment under each Facility of, and principal amount of the ~~Term Loan Advances~~ Loans owing under each Facility to, each Lender from time to time (the ~~“Register”~~"REGISTER"). The entries in the Register shall be -------- conclusive and binding for all purposes, absent manifest error, and the ~~Borrowers~~Borrower, the ~~Agents~~ Administrative Agent and the ~~Lenders shall~~ Lender Parties 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 Agent~~ Borrower or any Lender Party at any reasonable time and from time to time upon reasonable prior notice. (e) Notwithstanding anything to the contrary contained in clause (b) above, the Term Loan Advances (including the Notes evidencing such Term Loan Advances) are registered obligations and the right, title, and interest of the Lenders and their assignees in and to such Term Loan Advances shall be transferable only upon notation of such transfer in the Register. A Note shall only evidence the Lender’s or an assignee’s right title and interest in and to the related Term Loan Advance, and in no event is any such Note to be considered a bearer instrument or obligation. This Section 8.07 shall be construed so that the Term Loan Advances are at all times maintained in “registered form” within the meaning of sections 163(f), 871(h)(2) and 881(c)(2) of the Internal Revenue Code and any related regulations (or any successor provisions of the Internal Revenue Code or such regulations). Solely for purposes of this and for tax purposes only, the Administrative Agent shall act as each Borrower’s agent for purposes of maintaining such notations of transfer in the Register. (fd) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee, together with any Note or Notes subject to such assignment, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit C I --------- hereto, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to ~~BMCA and each other Agent~~the Borrower. ~~In the case of any assignment by a Lender, within~~ Within five (5) Business Days after its receipt of notice of such ~~notice~~assignment and a request for new Notes in favor of such assignee, the ~~Borrowers~~Borrower, at ~~their~~ its own expense, ~~shall, if requested by the assignee,~~ shall execute and deliver to the Administrative Agent in exchange for the surrendered Note or Notes ~~an amended and restated~~ a new Note ~~(which shall be marked “Amended and Restated”)~~ to the order of such Eligible Assignee in an amount equal to the ~~Term Loan Commitment~~ Loans and/or Commitments, as applicable, assumed by it under ~~each~~ a Facility pursuant to such Assignment and Acceptance and, if ~~any~~ the assigning Lender has retained ~~a Term Loan Commitment~~ any Loans and/or Commitments hereunder under such ~~Facility and has requested~~ Facility, a ~~replacement Note, an amended and restated~~ new Note to the order of ~~such~~ the assigning Lender in an amount equal to ~~the Term Loan Commitment~~ such Loans and/or Commitments, as applicable, retained by it hereunder. Such ~~amended and restated~~ 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 Assignment and Acceptance and shall otherwise be in substantially the form of ~~Exhibit A hereto.~~Exhibits VII-A, VII-B, VII-C and VII-D, as ---------------------------- ------ applicable. 121 (ge) Each Lender may sell participations ~~to one or more Persons (other than any Loan Party or any of its Affiliates)~~ in or to all or a portion of its rights and obligations under this Agreement (~~including~~ including, without limitation, all or a portion of its ~~Term Loan~~ Commitments, the ~~Term Loan Advances~~ Loans owing to it and ~~the~~ any Note or Notes ~~(if any)~~ held by it); provided, however, that (i) such Lender’s 's -------- ------- obligations under this Agreement (~~including~~ including, without limitation, its ~~Term Loan~~ Commitments) shall remain unchanged, (ii) 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, (iv) the ~~Borrowers~~Borrower, the ~~Agents~~ Administrative Agent and the other ~~Lenders~~ Lender Parties shall continue to deal solely and directly with such Lender in connection with such Lender’s 's rights and obligations under this Agreement and (v) no participant under any such participation shall have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent ~~requires~~ would reduce the ~~consent~~ principal of, or interest on, any Loans or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, postpone any date fixed for any payment of principal of, or interest on, any Loans or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, or release all ~~Lenders~~or substantially all of the Collateral; provided further that participants -------- ------- shall have the same rights and benefits as Lenders under Section 2.07 but only to the extent that the Lender from which such participation is acquired would have had such rights and benefits. (hf) Any Lender may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section ~~8.07~~9.07, disclose to the assignee or participant or proposed assignee or ~~participant~~ participant, any information relating to ~~the Borrowers~~ any Loan Party furnished to such Lender by or on behalf of ~~the Borrowers~~any Loan Party; provided, however, 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 received by it from such ~~Lender in accordance with the terms of Section 8.09~~Lender. (ig) Notwithstanding any other provision set forth in this Agreement, any Lender may at any time create a security interest in all or any portion of its rights under this Agreement (~~including~~ including, without limitation, the ~~Term Loan Advances~~ Loans owing to it and ~~the~~ any 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 System. (j) Notwithstanding anything to the contrary contained herein, any Lender that is a fund that invests in bank loans may create a security interest in all or any portion of the Term Loan Advances owing to it and the Note or Notes held by it to the trustee for holders of obligations owed, or securities issued, by such fund as security for such obligations or securities, provided, that unless and until such trustee actually becomes a Lender in compliance with the other provisions of this Section 8.07, (i) no such pledge shall release the pledging Lender from any of its obligations under the Loan Documents and (ii) such trustee shall not be entitled to exercise any of the rights of a Lender under the Loan Documents even though such trustee may have acquired ownership rights with respect to the pledged interest through foreclosure or otherwise. (kh) Notwithstanding anything to the contrary contained herein, any Lender (a ~~“Granting Lender”~~"GRANTING LENDER") may grant to a special purpose funding vehicle --------------- (an "SPV"), identified as such in writing from time to time by the Granting --- Lender to the Administrative Agent and ~~BMCA (an “SPC”)~~ the Borrower, the option to provide to the Borrower all or any part of any ~~Term~~ Loan ~~Advance~~ that such Granting Lender would otherwise be obligated to make to the Borrower pursuant to this Agreement, ; provided that (i) nothing herein shall constitute a commitment by any ~~SPC~~ SPV -------- ---- to ~~fund~~ make any ~~Term Loan Advance~~Loan, and (ii) if an ~~SPC~~ SPV elects not to exercise such option or otherwise fails to ~~make~~ provide all or any part of such ~~Term Loan Advance~~Loan, the Granting Lender shall be obligated to make such ~~Term~~ Loan ~~Advance~~ pursuant to the terms hereof. The making of ~~an Advance~~ a Loan by an ~~SPC~~ SPV hereunder shall utilize the ~~Term Loan~~ Commitment availability of the Granting Lender to the same extent, and as if, such ~~Term~~ Loan ~~Advance~~ were made by such Granting Lender. Each party hereto hereby agrees that ~~(i)~~ no ~~SPC~~ SPV shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which ~~a Lender would be liable, (ii) no SPC~~ shall ~~be entitled to the benefits of Sections 2.09 and 2.11 (or any other increased costs protection provision) and (iii)~~ remain with the Granting ~~Bank shall for all purposes, including the approval of any amendment or waiver of any provision of any Loan Document, remain the Lender of record hereunder~~Lender). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior ~~Debt~~ indebtedness of any ~~SPC~~SPV, it will not institute against, or join any other person in instituting against, such ~~SPC~~ SPV any bankruptcy, reorganization, arrangement, ~~insolvency,~~ insolvency or liquidation ~~proceeding~~ proceedings under the laws of the United States or any State thereof. ~~Notwithstanding~~ In addition, notwithstanding anything to the contrary contained in this ~~Agreement~~Section 9.07(h), any ~~SPC~~ SPV may (i) with notice to, but without the prior written consent of, ~~BMCA~~ the Borrower and the Administrative Agent ~~and with the payment of a processing fee of $500~~ and without paying any processing fee therefor, assign all or ~~any~~ a portion of its ~~interest~~ interests in any ~~Term Loan Advance~~ Loans to the Granting Lender or to any financial institutions (consented to by the Borrower and the Administrative Agent) providing liquidity and/or credit support to or for the account of such SPV to support the funding or maintenance of Loans and (ii) disclose on a confidential basis any ~~non-~~non- public information relating to its ~~funding of Term Loan Advance~~ Loans to any rating agency, commercial paper dealer or provider of any ~~surety or~~ surety, guarantee or credit or liquidity enhancement to such ~~SPC~~SPV. To the extent that an SPV assumes a Commitment and/or makes a Loan on behalf of a Granting Lender, such SPV shall be deemed a "Lender" for all purposes hereunder and under the other Loan Documents and shall be entitled to the same rights and benefits as such Granting Lender hereunder. This ~~subsection (k~~Section 9.07(h) may not be amended without the ~~prior~~ written consent of ~~each Granting Lender, all or any part of whose Term Loan Advances are being funded by~~ the ~~SPC at the time of such amendment~~SPV.

Appears in 1 contract

Samples: Credit Agreement (Panolam Industries Inc)

Assignments and Participations. (a) Each Lender ~~may, upon at least five Business Days’ notice to such Lender and the Administrative Agent,~~ may assign to one or more Eligible Assignees all or a portion of its rights and obligations under this Agreement (~~including~~ including, without limitation, all or a portion of its ~~Term Loan Commitment~~Commitment or Commitments, the ~~Term Loan~~ Advances owing to it and the Note or Notes held by it); provided, however, that (i) without the prior written consent of the Administrative Agent (which may be withheld for any reason) each such assignment shall be of a uniform, and not a varying, percentage of all rights and obligations under ~~this Agreement~~and in respect of each of the Facilities on a pro rata basis with respect to each Facility, and no Facility may be assigned in full or in part without a contemporaneous assignment to the same assignee of each of the other Facilities, (ii) except in the case of an assignment to a Person that, immediately prior to such assignment, was a ~~Lender, an Affiliate of any Lender or an Approved Fund of any~~ Lender or an assignment of all of a Lender’s 's rights and obligations under this Agreement, the ~~aggregate~~ amount of the ~~Term Loan Commitments or Term Loan Advances~~ Commitment of the assigning Lender being assigned ~~to such Eligible Assignee~~ pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $5,000,000 (or such lesser amount as shall be approved by the Administrative Agent and, so long as no Default shall have occurred and be continuing at the time of effectiveness of such assignment, BMCA)5,000,000, (iii) ~~each such assignment shall be to an Eligible Assignee, (iv) except in the case of an assignment by a Person that, immediately prior to such assignment, was a Lender, to one of its Affiliates,~~ no such assignments shall be permitted without the prior consent of the Administrative Agent ~~and, so long as no Default~~ (which may be withheld for any reason) until the Administrative Agent shall have ~~occurred~~ notified the Lender Parties that syndication of the Commitments hereunder has been completed, but in any event not later than 90 days following the Closing Date, (iv) no such assignment shall be permitted if, immediately after giving effect thereto, the Borrower would be required to make payments to or on behalf of the assignee Lender Party pursuant to Section 2.10(a) or (b) and ~~be continuing~~ the assignor Lender Party was not, at the time of ~~effectiveness of~~ such assignment, ~~BMCA~~ entitled to receive any payment pursuant to Section 2.10(a) or (~~in each case~~b), ~~which consents shall not be unreasonably withheld)~~ and (v) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together with any Note or Notes subject to such assignment and a processing and recordation fee of $3,500. (b) Upon such execution, delivery, acceptance and recording, from and after the effective date specified in such Assignment and Acceptance, (ix) the assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, have the rights and obligations of a Lender or Issuing Bank, as the case may be, hereunder and (iiy) the Lender or Issuing Bank assignor ~~thereunder~~ thereun der shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights ~~(other than its rights under Sections 2.09, 2.11 and 8.04 to the extent any claim thereunder relates to an event arising prior to such assignment)~~ and be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all of or the remaining portion of an assigning Lender’s 's or Issuing Bank's rights and obligations under this Agreement, such Lender or Issuing Bank shall cease to be a party hereto). (c) By executing and delivering an Assignment and Acceptance, ~~each~~ the Lender Party assignor thereunder and ~~each~~ the assignee thereunder confirm to and agree with each other and the other parties ~~thereto and~~ hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender Party makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or any other Loan Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value of, or the perfection or priority of any lien or security interest 119 created or purported to be created under or in connection with, this Agreement or any other Loan Document or any other instrument or document furnished pursuant hereto or thereto; (ii) such assigning Lender Party makes no representation or warranty and assumes no responsibility with respect to the financial condition of the Borrower or any other Loan Party or the performance or observance by any Loan Party of any of its obligations under any Loan Document or any other instrument or document furnished pursuant thereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section ~~4.01~~ 4.6 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) such assignee will, independently and without reliance upon ~~any~~ the Administrative Agent, such assigning Lender Party or any other Lender Party and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) such assignee confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes ~~each~~ the Administrative Agent to take such action as agent on its behalf and to exercise such powers and discretion under this Agreement and the other Loan Documents as are delegated to ~~such~~ the Administrative Agent by the terms hereof and thereof, together with such powers and discretion as are reasonably incidental thereto; and (vii) such assignee agrees that it will perform in accordance with their terms all of the obligations ~~that~~ which by the terms of this Agreement are required to be performed by it as a ~~Lender~~Lender or Issuing Bank, as the case may be. (d) The Administrative Agent ~~acting for this purpose (but only for this purpose) as the agent of the Borrowers,~~ shall maintain at its address referred to in Section ~~8.02~~ 11.2 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~~ Lender Parties and the ~~Term Loan~~ Commitment under each Facility of, and principal amount of the ~~Term Loan~~ Advances owing under each Facility to, each Lender Party from time to time (the “"Register”"). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the ~~Borrowers~~Borrower, the ~~Agents~~ Administrative Agent and the ~~Lenders shall~~ Lender Parties may treat each Person whose name is recorded in the Register as a Lender Party hereunder for all purposes of this Agreement. The Register shall be available for inspection by the ~~Borrowers or any Agent~~ Borrower or any Lender Party at any reasonable time and from time to time upon reasonable prior notice. (e) Notwithstanding anything to the contrary contained in clause (b) above, the Term Loan Advances (including the Notes evidencing such Term Loan Advances) are registered obligations and the right, title, and interest of the Lenders and their assignees in and to such Term Loan Advances shall be transferable only upon notation of such transfer in the Register. A Note shall only evidence the Lender’s or an assignee’s right title and interest in and to the related Term Loan Advance, and in no event is any such Note to be considered a bearer instrument or obligation. This Section 8.07 shall be construed so that the Term Loan Advances are at all times maintained in “registered form” within the meaning of sections 163(f), 871(h)(2) and 881(c)(2) of the Internal Revenue Code and any related regulations (or any successor provisions of the Internal Revenue Code or such regulations). Solely for purposes of this and for tax purposes only, the Administrative Agent shall act as each Borrower’s agent for purposes of maintaining such notations of transfer in the Register. (f) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender Party and an assignee, together with any Note or Notes subject to such ~~assignment~~assignment and the appropriate processing and reconciliation fee, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit C A hereto, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to ~~BMCA and each other Agent~~the Borrower. In the case of any assignment by a Lender, within five (5) Business Days after its receipt of such notice, the ~~Borrowers~~Borrower, at ~~their~~ its own expense, ~~shall, if requested by the assignee,~~ shall execute and deliver to the Administrative Agent in exchange for the surrendered Note or Notes ~~an amended and restated~~ a new Note ~~(which shall be marked “Amended and Restated”)~~ to the order of such Eligible Assignee in an amount equal to the ~~Term Loan~~ Commitment assumed by it under ~~each~~ a Facility pursuant to such Assignment and Acceptance and, if ~~any~~ the assigning Lender has retained a ~~Term Loan~~ Commitment hereunder under such ~~Facility and has requested~~ Facility, a ~~replacement Note, an amended and restated~~ new Note to the order of ~~such~~ the assigning Lender in an amount equal to the ~~Term Loan~~ Commitment retained by it hereunder. Such ~~amended and restated~~ 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 Assignment and Acceptance and shall otherwise be in substantially the form of Exhibit A B, C or I hereto, as the case may be . (f) The Issuing Bank may assign to an Eligible Assignee all of its rights and obligations under the undrawn portion of its Letter of Credit Commitment at any time; provided, however, that (i) each such assignment shall be to an Eligible Assignee and (ii) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together with a processing and recordation fee of $3,500. (g) Each Lender Party may sell participations to one or more Persons (other than any Loan Party or any of its Affiliates) in or to all or a portion of its rights and obligations under this Agreement (~~including~~ including, without limitation, all or a portion of its ~~Term Loan~~ Commitments, the ~~Term Loan~~ Advances owing to it and the Note or ~~Notes (~~Notes, if any) , held by it)) at any time and from time to time and without the consent of or notice to the Borrower or any Guarantor; provided, however, that (i) such ~~Lender’s~~ Lender Party's obligations under this Agreement (~~including~~ including, without limitation, its ~~Term Loan~~ Commitments) shall remain unchanged, (ii) such Lender Party shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) such Lender Party shall remain the holder of any such Note for all purposes of this Agreement, (iv) the ~~Borrowers~~Borrower, the ~~Agents~~ Administrative Agent and the other ~~Lenders~~ Lender Parties shall continue to deal solely and directly with such Lender Party in connection with such ~~Lender’s~~ Lender Party's rights and obligations under this Agreement and (v) no participant under any such participation shall have any right to approve any ~~amendment~~ amendment, waiver or ~~waiver~~ other modification of any provision of this Agreement or any other Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, ~~waiver~~ waiver, modification or consent ~~requires~~ would reduce the ~~consent~~ principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, postpone any date fixed for any payment of principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, or release all ~~Lenders~~or substantially all of the Collateral. (h) Any Lender Party may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section ~~8.07~~11.7, disclose to the assignee or participant or proposed assignee or ~~participant~~ participant, any information relating to the ~~Borrowers~~ Borrower furnished to such Lender Party by or on behalf of the ~~Borrowers~~Borrower; provided, however, 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 received by it from such Lender ~~in accordance with the terms of Section 8.09~~Party. (i) Notwithstanding any other provision set forth in this Agreement, any Lender Party may at any time create a security interest in all or any portion of its rights under this Agreement (~~including~~ including, without limitation, the ~~Term Loan~~ 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 System.. 121 (j) ~~Notwithstanding anything~~ Fleet may syndicate the Facilities to other lenders. Any such syndication will be managed by Fleet. The Borrower shall assist Fleet in forming such syndication and shall provide Fleet and any potential lender, assignee or participant, promptly upon request, with all information deemed reasonably necessary by them to complete successfully such syndication, including, without limitation, all information and projections prepared by the Borrower or their officers or advisers relating to the ~~contrary contained~~ transactions contemplated herein~~, any Lender that is a fund that invests in bank loans may create a security interest in all or any portion~~ . The Borrower shall make appropriate officers and representatives of the ~~Term Loan Advances owing~~ Borrower and their Subsidiaries available to it participate in information meetings for potential syndicate members and ~~the Note or Notes held by it~~ participants at such times and places as Fleet may reasonably request. In connection with such syndication, Fleet may, in its sole discretion, allocate to ~~the trustee for holders~~ other Lenders portions of ~~obligations owed, or securities issued, by such fund as security for such obligations or securities, provided, that unless and until such trustee actually becomes a Lender~~ any fees payable to Fleet in ~~compliance~~ connection with the other provisions of this Section 8.07, (i) no such pledge shall release the pledging Lender from any of its obligations under the Loan Documents and (ii) such trustee shall not be entitled to exercise any of the rights of a Lender under the Loan Documents even though such trustee may have acquired ownership rights with respect to the pledged interest through foreclosure or otherwiseFacilities. (k) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Lender”) may grant to a special purpose funding vehicle identified as such in writing from time to time by the Granting Lender to the Administrative Agent and BMCA (an “SPC”) the option to provide all or any part of any Term Loan Advance that such Granting Lender would otherwise be obligated to make pursuant to this Agreement, provided that (i) nothing herein shall constitute a commitment by any SPC to fund any Term Loan Advance, and (ii) if an SPC elects not to exercise such option or otherwise fails to make all or any part of such Term Loan Advance, the Granting Lender shall be obligated to make such Term Loan Advance pursuant to the terms hereof. The making of an Advance by an SPC hereunder shall utilize the Term Loan Commitment of the Granting Lender to the same extent, and as if, such Term Loan Advance were made by such Granting Lender. Each party hereto hereby agrees that (i) no SPC shall be liable for any indemnity or similar payment obligation under this Agreement for which a Lender would be liable, (ii) no SPC shall be entitled to the benefits of Sections 2.09 and 2.11 (or any other increased costs protection provision) and (iii) the Granting Bank shall for all purposes, including the approval of any amendment or waiver of any provision of any Loan Document, remain the Lender of record hereunder. In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior Debt of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency, or liquidation proceeding under the laws of the United States or any State thereof. Notwithstanding anything to the contrary contained in this Agreement, any SPC may (i) with notice to, but without prior consent of, BMCA and the Administrative Agent and with the payment of a processing fee of $500 and without paying any processing fee therefor, assign all or any portion of its interest in any Term Loan Advance to the Granting Lender and (ii) disclose on a confidential basis any non-public information relating to its funding of Term Loan Advance to any rating agency, commercial paper dealer or provider of any surety or guarantee or credit or liquidity enhancement to such SPC. This subsection (k) may not be amended without the prior written consent of each Granting Lender, all or any part of whose Term Loan Advances are being funded by the SPC at the time of such amendment.

Appears in 1 contract

Samples: Credit Agreement (Audio Book Club Inc)

Assignments and Participations. (a) Each Lender ~~may, upon at least five Business Days’ notice to such Lender and the Administrative Agent,~~ may assign to one or more Eligible Assignees all or a portion of its rights and obligations under this Agreement (~~including~~ including, without limitation, all or a portion of its ~~Term Loan Commitment~~Commitment or Commitments, the ~~Term Loan~~ Advances owing to it and the Note or Notes held by it); provided, however, that (i) each such assignment shall be of a uniform, and not a varying, percentage of all rights and obligations under ~~this Agreement~~and in respect of one or more of the Facilities, (ii) except in the case of an assignment to a Person that, immediately prior to such assignment, was a Lender, an Affiliate of any Lender or ~~an Approved~~ a Fund Affiliate of any Lender or an assignment of all of a Lender’s 's rights and obligations under this Agreement, the aggregate amount of the ~~Term Loan~~ Commitments ~~or Term Loan Advances~~ being assigned to such Eligible Assignee pursuant to such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $5,000,000 under each Facility or an integral multiple of $1,000,000 in excess thereof (or such lesser amount as shall be approved by the Administrative Agent and, so long as no Default shall have occurred and be continuing at the time of effectiveness of such assignment, ~~BMCA~~the Borrower), (iii) each such assignment shall be to an Eligible Assignee, (iv) ~~except in the case of an assignment by a Person that, immediately prior to such assignment, was a Lender, to one of its Affiliates,~~ no such assignments shall be permitted without the consent of the Administrative Agent ~~and, so long as no Default~~ (such consent not to be unreasonably withheld or delayed) until the Administrative Agent shall have ~~occurred and be continuing at~~ notified the ~~time~~ Lender Parties that syndication of ~~effectiveness of such assignment, BMCA (in each case, which consents shall not be unreasonably withheld)~~ the Commitments hereunder has been completed and (v) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together with any Note or Notes subject to such assignment ~~and~~ and, except if such assignment is being made by a Lender to an Affiliate or Fund Affiliate of such Lender, a processing and recordation fee of $3,500. (b) Upon such execution, delivery, acceptance and recording, from and after the effective date specified in such 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, have the rights and obligations of a Lender or Issuing Bank, as the case may be, hereunder and (ii) the Lender or Issuing Bank assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (other than its rights under Sections ~~2.09~~2.10, ~~2.11~~ 2.12, 7.06, 8.05 and ~~8.04~~ 9.04 to the extent any claim thereunder relates to an event arising prior to such assignment) and be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all of the remaining portion of an assigning Lender’s 's or Issuing Bank's rights and obligations under this Agreement, such Lender or Issuing Bank shall cease to be a party hereto). (c) By executing and delivering an Assignment and Acceptance, each Lender Party assignor thereunder and each assignee thereunder confirm to and agree with each other and the other parties thereto and hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender Party makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with any Loan Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value of, or the perfection or priority of any lien or security interest created or purported to be created under or in connection with, any Loan Document or any other instrument or document furnished pursuant thereto; (ii) such assigning Lender Party makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party or the performance or observance by any Loan Party of any of its obligations under any Loan Document or any other instrument or document furnished pursuant thereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 4.01 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) such assignee will, independently and without reliance upon ~~any~~ the Administrative Agent, such assigning Lender Party or any other Lender Party and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) such assignee confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes ~~each~~ the Administrative Agent to take such action as agent on its behalf and to exercise such powers and discretion under the Loan Documents as are delegated to ~~such~~ the Administrative Agent by the terms hereof and thereof, together with such powers and discretion as are reasonably incidental thereto; and (vii) such assignee agrees that it will perform in accordance with their terms all of the obligations that by the terms of this Agreement are required to be performed by it as a ~~Lender~~Lender or Issuing Bank, as the case may be. (d) The Administrative Agent ~~acting for this purpose (but only for this purpose) as the agent of the Borrowers,~~ shall maintain at its address referred to in Section ~~8.02~~ 9.02 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 ~~Lenders~~ Lender Parties and the ~~Term Loan~~ Commitment under each Facility of, and principal amount of the ~~Term Loan~~ Advances owing under each Facility to, each Lender Party from time to time (the ~~“Register”~~"REGISTER"). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the ~~Borrowers~~Borrower, the ~~Agents~~ Administrative Agent and the ~~Lenders shall~~ Lender Parties may treat each Person whose name is recorded in the Register as a Lender Party hereunder for all purposes of this Agreement. The Register shall be available for inspection by the ~~Borrowers~~ Borrower or ~~any~~ the Administrative Agent or any Lender Party at any reasonable time and from time to time upon reasonable prior notice. (e) Notwithstanding anything to the contrary contained in clause (b) above, the Term Loan Advances (including the Notes evidencing such Term Loan Advances) are registered obligations and the right, title, and interest of the Lenders and their assignees in and to such Term Loan Advances shall be transferable only upon notation of such transfer in the Register. A Note shall only evidence the Lender’s or an assignee’s right title and interest in and to the related Term Loan Advance, and in no event is any such Note to be considered a bearer instrument or obligation. This Section 8.07 shall be construed so that the Term Loan Advances are at all times maintained in “registered form” within the meaning of sections 163(f), 871(h)(2) and 881(c)(2) of the Internal Revenue Code and any related regulations (or any successor provisions of the Internal Revenue Code or such regulations). Solely for purposes of this and for tax purposes only, the Administrative Agent shall act as each Borrower’s agent for purposes of maintaining such notations of transfer in the Register. (f) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender Party and an assignee, together with any Note or Notes subject to such assignment, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit C D hereto, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to ~~BMCA~~ the Borrower and each other Agent. In the case of any assignment by a Lender, within five Business Days after its receipt of such notice, the ~~Borrowers~~Borrower, at ~~their~~ its own expense, shall, if requested by the ~~assignee~~applicable Lender, execute and deliver to the Administrative Agent in exchange for the surrendered Note or Notes ~~an amended and restated~~ a new Note ~~(which shall be marked “Amended and Restated”)~~ to the order of such Eligible Assignee in an amount equal to the ~~Term Loan~~ Commitment assumed by it under each Facility pursuant to such Assignment and Acceptance and, if any assigning Lender has retained a ~~Term Loan~~ Commitment hereunder under such ~~Facility and has requested~~ Facility, a ~~replacement Note, an amended and restated~~ new Note to the order of such assigning Lender in an amount equal to the ~~Term Loan~~ Commitment retained by it hereunder. Such ~~amended and restated~~ new Note or ~~Notes~~ Notes, if any, shall be in an aggregate principal amount equal to the aggregate principal amount of such surrendered Note or Notes, shall be dated the effective date of such Assignment and Acceptance and shall otherwise be in substantially the form of Exhibit A hereto. (f) Each Issuing Bank may assign to one or more Eligible Assignees all or a portion of its rights and obligations under the undrawn portion of its Letter of Credit Commitment at any time; provided, however, that (i) except in the case of an assignment to a Person that immediately prior to such assignment was an Issuing Bank or an assignment of all of an Issuing Bank's rights and obligations under this Agreement, the amount of the Letter of Credit Commitment of the assigning Issuing Bank being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $10,000,000 and shall be in an integral multiple of $1,000,000 in excess thereof, (ii) each such assignment shall be to an Eligible Assignee and (iii) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together with a processing and recordation fee of $3,500, provided, that such fee shall not be payable if the assigning Issuing Bank is making such assignment simultaneously with the assignment in its capacity as a Lender of all or a portion of its Revolving Credit Commitment to the same Eligible Assignee. (g) Each Lender Party may sell participations to one or more Persons (other than any Loan Party or any of its Affiliates) in or to all or a portion of its rights and obligations under this Agreement (~~including~~ including, without limitation, all or a portion of its ~~Term Loan~~ Commitments, the ~~Term Loan~~ Advances owing to it and the Note or Notes (if any) held by it); provided, however, that (i) such ~~Lender’s~~ Lender Party's obligations under this Agreement (~~including~~ including, without limitation, its ~~Term Loan~~ Commitments) shall remain unchanged, (ii) such Lender Party shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) such Lender Party shall remain the holder of any such Note for all purposes of this Agreement, (iv) the ~~Borrowers~~Borrower, the ~~Agents~~ Administrative Agent and the other ~~Lenders~~ Lender Parties shall continue to deal solely and directly with such Lender Party in connection with such ~~Lender’s~~ Lender Party's rights and obligations under this ~~Agreement and~~ Agreement, (v) no participant under any such participation shall have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent ~~requires~~ would reduce the ~~consent~~ principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation or postpone any date fixed for any payment of principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, or release all ~~Lenders~~or substantially all of the Collateral and (vi) if, at the time of such sale, such Lender Party was entitled to payments under Section 2.12(a) in respect of United States withholding tax with respect to interest paid at such date, then, to such extent, the term Taxes shall include (in addition to withholding taxes that may be imposed in the future or other amounts otherwise includable in Taxes) United States withholding tax, if any, applicable with respect to such participant on such date, provided, that such participant complies with the requirements of Section 2.12(e). (h) Any Lender Party may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section ~~8.07~~9.07, disclose to the assignee or participant or proposed assignee or participant any information relating to the ~~Borrowers~~ Borrower furnished to such Lender Party by or on behalf of the ~~Borrowers~~Borrower; provided, however, 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 received by it from such Lender ~~in accordance with the terms of Section 8.09~~Party. (i) Notwithstanding any other provision set forth in this Agreement, any Lender Party may at any time create a security interest in all or any portion of its rights under this Agreement (~~including~~ including, without limitation, the ~~Term Loan~~ 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 System. (j) Notwithstanding anything to the contrary contained herein, any Lender that is a fund that invests in bank loans may create a security interest in all or any portion of the Term Loan Advances owing to it and the Note or Notes held by it to the trustee for holders of obligations owed, or securities issued, by such fund as security for such obligations or securities, provided, that unless and until such trustee actually becomes a Lender in compliance with the other provisions of this Section 8.07, (i) no such pledge shall release the pledging Lender from any of its obligations under the Loan Documents and (ii) such trustee shall not be entitled to exercise any of the rights of a Lender under the Loan Documents even though such trustee may have acquired ownership rights with respect to the pledged interest through foreclosure or otherwise. (k) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Lender”) may grant to a special purpose funding vehicle identified as such in writing from time to time by the Granting Lender to the Administrative Agent and BMCA (an “SPC”) the option to provide all or any part of any Term Loan Advance that such Granting Lender would otherwise be obligated to make pursuant to this Agreement, provided that (i) nothing herein shall constitute a commitment by any SPC to fund any Term Loan Advance, and (ii) if an SPC elects not to exercise such option or otherwise fails to make all or any part of such Term Loan Advance, the Granting Lender shall be obligated to make such Term Loan Advance pursuant to the terms hereof. The making of an Advance by an SPC hereunder shall utilize the Term Loan Commitment of the Granting Lender to the same extent, and as if, such Term Loan Advance were made by such Granting Lender. Each party hereto hereby agrees that (i) no SPC shall be liable for any indemnity or similar payment obligation under this Agreement for which a Lender would be liable, (ii) no SPC shall be entitled to the benefits of Sections 2.09 and 2.11 (or any other increased costs protection provision) and (iii) the Granting Bank shall for all purposes, including the approval of any amendment or waiver of any provision of any Loan Document, remain the Lender of record hereunder. In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior Debt of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency, or liquidation proceeding under the laws of the United States or any State thereof. Notwithstanding anything to the contrary contained in this Agreement, any SPC may (i) with notice to, but without prior consent of, BMCA and the Administrative Agent and with the payment of a processing fee of $500 and without paying any processing fee therefor, assign all or any portion of its interest in any Term Loan Advance to the Granting Lender and (ii) disclose on a confidential basis any non-public information relating to its funding of Term Loan Advance to any rating agency, commercial paper dealer or provider of any surety or guarantee or credit or liquidity enhancement to such SPC. This subsection (k) may not be amended without the prior written consent of each Granting Lender, all or any part of whose Term Loan Advances are being funded by the SPC at the time of such amendment.

Appears in 1 contract

Samples: Credit Agreement (Maguire Properties Inc)

Assignments and Participations. (a) Each Lender ~~may~~may (and, so long as no Default shall have occurred and be continuing, if demanded by the Borrower (following a demand by such Lender pursuant to Section 2.10 or 2.12 or if such Lender shall be a Defaulting Lender) upon at least ~~five~~ 5 Business Days’ ' notice to such Lender and the Administrative Agent, will) assign to one or more Eligible Assignees all or a portion of its rights and obligations under this Agreement and the other Loan Documents (~~including~~ including, without limitation, all or a portion of its ~~Term Loan Commitment~~Commitment or Commitments, the ~~Term Loan~~ Advances owing to it and the Note or Notes held by it); provided, however, that (i) each such assignment shall be of a uniform, and not a varying, percentage of all rights and obligations under ~~this Agreement~~and in respect of one or more Facilities, (ii) except in the case of an assignment to a Person that, immediately prior to such assignment, was a ~~Lender, an Affiliate of any Lender or an Approved Fund of any~~ Lender or an assignment of all of a Lender’s 's rights and obligations under this Agreement, the ~~aggregate~~ amount of the ~~Term Loan~~ Commitment or Commitments ~~or Term Loan Advances~~ of the assigning Lender being assigned ~~to such Eligible Assignee~~ pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $5,000,000 (or such lesser amount as shall be approved by the Administrative Agent and, so long as no Default shall have occurred and be continuing at the time of effectiveness of such assignment, BMCA)5,000,000, (iii) each such assignment shall be to an Eligible Assignee, (iv) ~~except in~~ each such assignment made as a result of a demand by the ~~case of an assignment by a Person that, immediately prior~~ Borrower pursuant to ~~such assignment, was a Lender, to one of its Affiliates, no such assignments~~ this Section 8.07(a) shall be ~~permitted without~~ arranged by the ~~consent of~~ Borrower after consultation with the Administrative Agent ~~and~~and shall be either an assignment of all of the rights and obligations of the assigning Lender under this Agreement and the other Loan Documents or an assignment of a portion of such rights and obligations made concurrently with another such assignment or other such assignments that together cover all of the rights and obligations of the assigning Lender under this Agreement and the other Loan Documents, ~~so long~~ (v) no Lender shall be obligated to make any such assignment as ~~no Default~~ a result of a demand by the Borrower pursuant to this Section 8.07(a) unless and until such Lender shall have ~~occurred and be continuing~~ received one or more payments from either the Borrower or one or more Eligible Assignees in an aggregate amount at least equal to the ~~time~~ aggregate outstanding principal amount of ~~effectiveness~~ the Advances owing to such Lender, together with accrued interest thereon to the date of payment of such ~~assignment~~principal amount and all other amounts payable to such Lender under this Agreement, ~~BMCA (in each case, which consents shall not be unreasonably withheld)~~ and (vvi) the parties to each such 140 134 assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together with any Note or Notes subject to such assignment and a processing and recordation fee of $~~3,500~~1,500 for each Assignment and Acceptance between a Lender and one of its Affiliates or another Lender or $3,000 for each other Assignment and Acceptance, provided, however, that for each such assignment made as a result of a demand by the Borrower pursuant to this Section 8.07(a), the Borrower shall pay to the Administrative Agent the applicable processing and recordation fee. (b) Upon such execution, delivery, acceptance and recording, from and after the effective date specified in such Assignment and Acceptance, (ix) the assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, have the rights and obligations of a Lender or Issuing Bank, as the case may be, hereunder and (iiy) the Lender or Issuing Bank assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (other than its rights under Sections ~~2.09~~2.10, ~~2.11~~ 2.12 and 8.04 to the extent any claim thereunder relates to an event arising prior to such assignment) and be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all of or the remaining portion of an assigning Lender’s 's or Issuing Bank's rights and obligations under this Agreement, such Lender or Issuing Bank shall cease to be a party hereto). (c) By executing and delivering an Assignment and Acceptance, ~~each~~ the Lender Party assignor thereunder and ~~each~~ the assignee thereunder confirm to and agree with each other and the other parties ~~thereto and~~ hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender Party makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or any other Loan Document or any other instrument or document furnished pursuant hereto or thereto or the execution, legality, validity, enforceability, genuineness, sufficiency or value of, or the perfection or priority of any lien or security interest created or purported to be created under or in connection with, this Agreement or any other Loan Document or any other instrument or document furnished pursuant hereto or thereto; (ii) such assigning Lender Party makes no representation or warranty and assumes no responsibility with respect to the financial condition of the Borrower or any other Loan Party or the performance or observance by any Loan Party of any of its obligations under any Loan Document or any other instrument or document furnished pursuant thereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 4.01 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) such assignee will, 141 135 independently and without reliance upon any Agent, such assigning Lender Party or any other Lender Party and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) such assignee confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes each Agent to take such action as agent on its behalf and to exercise such powers and discretion under the Loan Documents as are delegated to such Agent by the terms ~~hereof and thereof~~hereof, together with such powers and discretion as are reasonably incidental thereto; and (vii) such assignee agrees that it will perform in accordance with their terms all of the obligations ~~that~~ which by the terms of this Agreement are required to be performed by it as a ~~Lender~~Lender or Issuing Bank, as the case may be. (d) The Administrative ~~Agent~~ Agent, acting for this purpose (but only for this purpose) as the agent of the ~~Borrowers~~Borrower, shall maintain at its address referred to in Section 8.02 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 ~~Lenders~~ Lender Parties and the ~~Term Loan~~ Commitment under each Facility of, and principal amount of the ~~Term Loan~~ Advances owing under each Facility to, each Lender Party from time to time (the “"Register”"). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the ~~Borrowers~~Borrower, the Agents and the ~~Lenders~~ Lender Parties shall treat each Person whose name is recorded in the Register as a Lender Party hereunder for all purposes of this Agreement. The Register shall be available for inspection by the ~~Borrowers or any Agent~~ Borrower or any Lender Party at any reasonable time and from time to time upon reasonable prior notice. (e) Notwithstanding anything to the contrary contained in clause (b) above, the Term Loan Advances (including the Notes evidencing such Term Loan Advances) are registered obligations and the right, title, and interest of the Lenders and their assignees in and to such Term Loan Advances shall be transferable only upon notation of such transfer in the Register. A Note shall only evidence the Lender’s or an assignee’s right title and interest in and to the related Term Loan Advance, and in no event is any such Note to be considered a bearer instrument or obligation. This Section 8.07 shall be construed so that the Term Loan Advances are at all times maintained in “registered form” within the meaning of sections 163(f), 871(h)(2) and 881(c)(2) of the Internal Revenue Code and any related regulations (or any successor provisions of the Internal Revenue Code or such regulations). Solely for purposes of this and for tax purposes only, the Administrative Agent shall act as each Borrower’s agent for purposes of maintaining such notations of transfer in the Register. (f) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender Party and an assignee, together with any Note or Notes subject to such assignment, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit C hereto, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to ~~BMCA~~ the Borrower and ~~each~~ the other ~~Agent~~Agents. In the case of any assignment by a Lender, within five Business Days after its receipt of such notice, the ~~Borrowers~~Borrower, at ~~their~~ its own expense, ~~shall, if requested by the assignee,~~ shall execute and deliver to the Administrative Agent in exchange for the surrendered Note or Notes ~~an amended and restated~~ a new Note ~~(which shall be marked “Amended and Restated”)~~ to the order of such Eligible Assignee in an amount equal to the ~~Term Loan~~ Commitment assumed by it under ~~each~~ a Facility pursuant to such Assignment and Acceptance and, if ~~any~~ the assigning Lender has retained a ~~Term Loan~~ Commitment hereunder under such ~~Facility and has requested~~ Facility, a ~~replacement Note, an amended and restated~~ new Note to the order of ~~such~~ the assigning Lender in an amount equal to the ~~Term Loan~~ Commitment retained by it hereunder. Such ~~amended and restated~~ 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 Assignment and Acceptance and shall otherwise be in substantially the form of Exhibit A A-1, X-0, X-0, X-0 xx A-5 hereto, as the case may be. (f) Each Issuing Bank may assign to one or more Eligible Assignees all or a portion of its rights and obligations under the undrawn portion of its Letter of Credit Commitment at any time; provided, however, that (i) except in the case of an assignment to a Person that immediately prior to such assignment was an Issuing Bank or an assignment of all of an Issuing Bank's rights and obligations under this Agreement, the amount of the Letter of Credit Commitment of the assigning Issuing Bank being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $5,000,000 and shall be in an integral multiple of $1,000,000 in excess thereof, (ii) each such assignment shall be to an Eligible Assignee and (iii) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together with a processing and recordation fee of $3,000. (g) Each Lender Party may sell participations to one or more Persons (other than any Loan Party or any of its Affiliates) in or to all or a portion of its rights and obligations under this Agreement (~~including~~ including, without limitation, all or a portion of its ~~Term Loan~~ Commitments, the ~~Term Loan~~ Advances owing to it and the Note or Notes (if any) held by it); provided, however, that (i) such ~~Lender’s~~ Lender Party's obligations under this Agreement (~~including~~ including, without limitation, its ~~Term Loan~~ Commitments) shall remain unchanged, (ii) such Lender Party shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) such Lender Party shall remain the holder of any such Note for all purposes of this Agreement, (iv) the ~~Borrowers~~Borrower, the ~~Agents~~ Administrative Agent and the other ~~Lenders~~ Lender Parties shall continue to deal solely and directly with such Lender Party in connection with such ~~Lender’s~~ Lender Party's rights and obligations under this Agreement and (v) no participant under any such participation shall have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent ~~requires~~ would reduce the ~~consent~~ principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, postpone any date fixed for any payment of principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, release any Guarantor or Guarantors to the extent that such release would have the effect of releasing all ~~Lenders~~or substantially all of the Collateral, or release all or substantially all of the Collateral. (h) Any Lender Party may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section 8.07, disclose to the assignee or participant or proposed assignee or ~~participant~~ participant, any information relating to the ~~Borrowers~~ Borrower furnished to such Lender Party by or on behalf of the ~~Borrowers~~Borrower; provided, however, that, prior to any such disclosure, the assignee or participant or proposed assignee 143 137 or participant shall agree to preserve the confidentiality of any Confidential Information received by it from such Lender ~~in accordance with the terms of Section 8.09~~Party. (i) Notwithstanding any other provision set forth in this Agreement, any Lender Party may at any time create a security interest in all or any portion of its rights under this Agreement (~~including~~ including, without limitation, the ~~Term Loan~~ 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 System. (j) Notwithstanding anything to the contrary contained herein, any Lender that is a fund that invests in bank loans may create a security interest in all or any portion of the Term Loan Advances owing to it and the Note or Notes held by it to the trustee for holders of obligations owed, or securities issued, by such fund as security for such obligations or securities, provided, that unless and until such trustee actually becomes a Lender in compliance with the other provisions of this Section 8.07, (i) no such pledge shall release the pledging Lender from any of its obligations under the Loan Documents and (ii) such trustee shall not be entitled to exercise any of the rights of a Lender under the Loan Documents even though such trustee may have acquired ownership rights with respect to the pledged interest through foreclosure or otherwise. (k) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Lender”) may grant to a special purpose funding vehicle identified as such in writing from time to time by the Granting Lender to the Administrative Agent and BMCA (an “SPC”) the option to provide all or any part of any Term Loan Advance that such Granting Lender would otherwise be obligated to make pursuant to this Agreement, provided that (i) nothing herein shall constitute a commitment by any SPC to fund any Term Loan Advance, and (ii) if an SPC elects not to exercise such option or otherwise fails to make all or any part of such Term Loan Advance, the Granting Lender shall be obligated to make such Term Loan Advance pursuant to the terms hereof. The making of an Advance by an SPC hereunder shall utilize the Term Loan Commitment of the Granting Lender to the same extent, and as if, such Term Loan Advance were made by such Granting Lender. Each party hereto hereby agrees that (i) no SPC shall be liable for any indemnity or similar payment obligation under this Agreement for which a Lender would be liable, (ii) no SPC shall be entitled to the benefits of Sections 2.09 and 2.11 (or any other increased costs protection provision) and (iii) the Granting Bank shall for all purposes, including the approval of any amendment or waiver of any provision of any Loan Document, remain the Lender of record hereunder. In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior Debt of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency, or liquidation proceeding under the laws of the United States or any State thereof. Notwithstanding anything to the contrary contained in this Agreement, any SPC may (i) with notice to, but without prior consent of, BMCA and the Administrative Agent and with the payment of a processing fee of $500 and without paying any processing fee therefor, assign all or any portion of its interest in any Term Loan Advance to the Granting Lender and (ii) disclose on a confidential basis any non-public information relating to its funding of Term Loan Advance to any rating agency, commercial paper dealer or provider of any surety or guarantee or credit or liquidity enhancement to such SPC. This subsection (k) may not be amended without the prior written consent of each Granting Lender, all or any part of whose Term Loan Advances are being funded by the SPC at the time of such amendment.

Appears in 1 contract

Samples: Credit Agreement (Amf Group Inc)

Assignments and Participations. Except as expressly permitted by Section 5.02(c), neither the Company nor any Borrower may assign or otherwise transfer any of its rights hereunder without the prior written consent of the Agent and each Lender (a) and any attempted assignment or transfer by the Borrower without such consent shall be null and void). Each Lender ~~may~~may and, if demanded by a Borrower (following a demand by such Lender pursuant to Section 2.12, upon a requirement to pay any additional amount or make an indemnification payment to such Lender or any governmental authority for the account of such Lender pursuant to Section 2.15 or upon such Lender becoming a Defaulting Lender) upon at least five Business Days’ notice to such Lender and the ~~Administrative Agent~~Agent will (at the Borrower’s sole expense), ~~assign~~ assign, with the consent, not to be unreasonably withheld, of the Agent and the Company, to one or more ~~Eligible Assignees~~ Persons all or a portion of its rights and obligations under this Agreement (~~including~~ including, without limitation, all or a portion of one or more of its ~~Term Loan Commitment~~Revolving Credit Commitments, the ~~Term Loan~~ Advances (other than Competitive Bid Advances) owing to it it, and the Note or Notes (other than Competitive Bid Notes) held by it); provided, however, that (i) each such assignment shall be of a ~~uniform~~constant, and not a varying, percentage of all rights and obligations under this ~~Agreement~~Agreement under the Facility under which such Lender has a Revolving Credit Commitment, (ii) except in the case of an assignment to a Person that, immediately prior to such assignment, was a ~~Lender, an Affiliate of any Lender or an Approved Fund of any~~ Lender or an assignment of all of a Lender’s rights and obligations under this Agreement, the ~~aggregate~~ amount of the ~~Term Loan Commitments or Term Loan Advances~~ Revolving Credit Commitment of the assigning Lender being assigned ~~to such Eligible Assignee~~ pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $~~5,000,000 (~~20,000,000 or ~~such lesser amount as shall be approved by the Administrative Agent and, so long as no Default shall have occurred and be continuing at the time~~ an integral multiple of ~~effectiveness of such assignment, BMCA)~~$1,000,000 in excess thereof, (iii) each such assignment shall be to an Eligible Assignee, (iv) ~~except in~~ each such assignment made as a result of a demand by a Borrower pursuant to this Section 9.07(a) shall be arranged by such Borrower after consultation with the ~~case of~~ Agent and shall be either an assignment of all of the rights and obligations of the assigning Lender under this Agreement or an assignment of a portion of such rights and obligations made concurrently with another such assignment or other such assignments that together cover all of the rights and obligations of the assigning Lender under this Agreement, (v) no Lender shall be obligated to make any such assignment as a result of a demand by a ~~Person that, immediately prior~~ Borrower pursuant to this Section 9.07(a) unless and until such Lender shall have received one or more payments from either such Borrower or one or more Eligible Assignees in an aggregate amount at least equal to the aggregate outstanding principal amount of the Advances owing to such ~~assignment, was a~~ Lender, together with accrued interest thereon to ~~one~~ the date of ~~its Affiliates, no such assignments shall be permitted without the consent of the Administrative Agent and, so long as no Default shall have occurred and be continuing at the time of effectiveness~~ payment of such ~~assignment~~principal amount and all other amounts payable to such Lender under this Agreement, ~~BMCA (in each case, which consents shall not be unreasonably withheld)~~ and (vvi) the parties to each such assignment shall execute and deliver to the ~~Administrative~~ Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together with any Note ~~or Notes~~ subject to such assignment and a processing and recordation fee of $~~3,500. (b)~~ 3,500 payable by the parties to each such assignment, provided, however, that in the case of an assignment made as a result of a demand by a Borrower, such recordation fee shall be payable by such Borrower except that no recordation fee shall be payable in the case of an assignment made at the request of a Borrower to an Eligible Assignee that is an existing Lender, and provided further that no such assignment shall be made to a Defaulting Lender. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in ~~such~~ each Assignment and Acceptance, (ix) the assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, have the rights and obligations of a Lender hereunder and (iiy) the Lender assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights ~~(other than its rights under Sections 2.09, 2.11 and 8.04 to the extent any claim thereunder relates to an event arising prior to such assignment)~~ and be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all of or the remaining portion of an assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto). (c) By executing and delivering an Assignment and Acceptance, each Lender assignor thereunder and each assignee thereunder confirm to and agree with each other and the other parties thereto and hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with any Loan Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value of, or the perfection or priority of any lien or security interest created or purported to be created under or in connection with, any Loan Document or any other instrument or document furnished pursuant thereto; (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party or the performance or observance by any Loan Party of any of its obligations under any Loan Document or any other instrument or document furnished pursuant thereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 4.01 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) such assignee will, independently and without reliance upon any Agent, such assigning Lender or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) such assignee confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes each Agent to take such action as agent on its behalf and to exercise such powers and discretion under the Loan Documents as are delegated to such Agent by the terms hereof and thereof, together with such powers and discretion as are reasonably incidental thereto; and (vii) such assignee agrees that it will perform in accordance with their terms all of the obligations that by the terms of this Agreement are required to be performed by it as a Lender. (d) The Administrative Agent acting for this purpose (but only for this purpose) as the agent of the Borrowers, shall maintain at its address referred to in Section 8.02 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 Lenders and the Term Loan Commitment of, and principal amount of the Term Loan Advances 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 Borrowers, the Agents and the Lenders shall treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrowers or any Agent or any Lender at any reasonable time and from time to time upon reasonable prior notice. (e) Notwithstanding anything to the contrary contained in clause (b) above, the Term Loan Advances (including the Notes evidencing such Term Loan Advances) are registered obligations and the right, title, and interest of the Lenders and their assignees in and to such Term Loan Advances shall be transferable only upon notation of such transfer in the Register. A Note shall only evidence the Lender’s or an assignee’s right title and interest in and to the related Term Loan Advance, and in no event is any such Note to be considered a bearer instrument or obligation. This Section 8.07 shall be construed so that the Term Loan Advances are at all times maintained in “registered form” within the meaning of sections 163(f), 871(h)(2) and 881(c)(2) of the Internal Revenue Code and any related regulations (or any successor provisions of the Internal Revenue Code or such regulations). Solely for purposes of this and for tax purposes only, the Administrative Agent shall act as each Borrower’s agent for purposes of maintaining such notations of transfer in the Register. (f) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee, together with any Note or Notes subject to such assignment, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit C hereto, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to BMCA and each other Agent. In the case of any assignment by a Lender, within five Business Days after its receipt of such notice, the Borrowers, at their own expense, shall, if requested by the assignee, execute and deliver to the Administrative Agent in exchange for the surrendered Note or Notes an amended and restated Note (which shall be marked “Amended and Restated”) to the order of such Eligible Assignee in an amount equal to the Term Loan Commitment assumed by it under each Facility pursuant to such Assignment and Acceptance and, if any assigning Lender has retained a Term Loan Commitment hereunder under such Facility and has requested a replacement Note, an amended and restated Note to the order of such assigning Lender in an amount equal to the Term Loan Commitment retained by it hereunder. Such amended and restated 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 Assignment and Acceptance and shall otherwise be in substantially the form of Exhibit A hereto. (g) Each Lender may sell participations to one or more Persons (other than any Loan Party or any of its Affiliates) in or to all or a portion of its rights and obligations under this Agreement (including all or a portion of its Term Loan Commitments, the Term Loan Advances owing to it and the Note or Notes (if any) held by it); provided, however, that (i) such Lender’s obligations under this Agreement (including its Term Loan Commitments) shall remain unchanged, (ii) 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, (iv) the Borrowers, the Agents and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and (v) no participant under any such participation shall have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent requires the consent of all Lenders. (h) Any Lender may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section 8.07, disclose to the assignee or participant or proposed assignee or participant any information relating to the Borrowers furnished to such Lender by or on behalf of the Borrowers; provided, however, 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 received by it from such Lender in accordance with the terms of Section 8.09. (i) Notwithstanding any other provision set forth in this Agreement, any Lender may at any time create a security interest in all or any portion of its rights under this Agreement (including the Term Loan 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 System. (j) Notwithstanding anything to the contrary contained herein, any Lender that is a fund that invests in bank loans may create a security interest in all or any portion of the Term Loan Advances owing to it and the Note or Notes held by it to the trustee for holders of obligations owed, or securities issued, by such fund as security for such obligations or securities, provided, that unless and until such trustee actually becomes a Lender in compliance with the other provisions of this Section 8.07, (i) no such pledge shall release the pledging Lender from any of its obligations under the Loan Documents and (ii) such trustee shall not be entitled to exercise any of the rights of a Lender under the Loan Documents even though such trustee may have acquired ownership rights with respect to the pledged interest through foreclosure or otherwise. (k) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Lender”) may grant to a special purpose funding vehicle identified as such in writing from time to time by the Granting Lender to the Administrative Agent and BMCA (an “SPC”) the option to provide all or any part of any Term Loan Advance that such Granting Lender would otherwise be obligated to make pursuant to this Agreement, provided that (i) nothing herein shall constitute a commitment by any SPC to fund any Term Loan Advance, and (ii) if an SPC elects not to exercise such option or otherwise fails to make all or any part of such Term Loan Advance, the Granting Lender shall be obligated to make such Term Loan Advance pursuant to the terms hereof. The making of an Advance by an SPC hereunder shall utilize the Term Loan Commitment of the Granting Lender to the same extent, and as if, such Term Loan Advance were made by such Granting Lender. Each party hereto hereby agrees that (i) no SPC shall be liable for any indemnity or similar payment obligation under this Agreement for which a Lender would be liable, (ii) no SPC shall be entitled to the benefits of Sections 2.09 and 2.11 (or any other increased costs protection provision) and (iii) the Granting Bank shall for all purposes, including the approval of any amendment or waiver of any provision of any Loan Document, remain the Lender of record hereunder. In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior Debt of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency, or liquidation proceeding under the laws of the United States or any State thereof. Notwithstanding anything to the contrary contained in this Agreement, any SPC may (i) with notice to, but without prior consent of, BMCA and the Administrative Agent and with the payment of a processing fee of $500 and without paying any processing fee therefor, assign all or any portion of its interest in any Term Loan Advance to the Granting Lender and (ii) disclose on a confidential basis any non-public information relating to its funding of Term Loan Advance to any rating agency, commercial paper dealer or provider of any surety or guarantee or credit or liquidity enhancement to such SPC. This subsection (k) may not be amended without the prior written consent of each Granting Lender, all or any part of whose Term Loan Advances are being funded by the SPC at the time of such amendment.

Appears in 1 contract

Samples: Credit Agreement (Coca-Cola Enterprises, Inc.)

Assignments and Participations. (a) Each Lender ~~may~~may and, so long as no Default has occurred and is continuing, if demanded by the Borrower (following a demand by such Lender pursuant to Section 2.10 or 2.12) upon at least ~~five~~ 10 Business Days’ ' notice to such Lender and the Administrative Agent, will assign to one or more Eligible Assignees all or a portion of its rights and obligations under this Agreement (~~including~~ including, without limitation, all or a portion of its ~~Term Loan Commitment~~Commitment or Commitments, the ~~Term Loan~~ Advances owing to it and the Note or Notes held by it); provided, however, that (i) each such assignment shall be of a uniform, and not a varying, percentage of all rights and obligations under ~~this Agreement~~and in respect of one or more Facilities, (ii) except in the case of an assignment to a Person that, immediately prior to such assignment, was a ~~Lender, an Affiliate of any~~ Lender or an Affiliate or Approved Fund of ~~any~~ a Lender or an assignment of all of a Lender’s 's rights and obligations under this Agreement, the aggregate amount of the ~~Term Loan~~ Commitments ~~or Term Loan Advances~~ being assigned to such Eligible Assignee pursuant to such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $~~5,000,000 (~~5,000,000, or such ~~lesser~~ other amount as ~~shall be approved by~~ the Administrative Agent and the assigning Lender and, so long as no Event of Default ~~shall have~~ has occurred and is continuing, the Borrower shall agree, and shall be ~~continuing at~~ in an integral multiple of $500,000, or, if the ~~time~~ aggregate amount of ~~effectiveness~~ the Commitment of such ~~assignment~~assigning Lender is less than $5,000,000, ~~BMCA)~~all of such Lender's Commitment, (iii) each such assignment shall be to an Eligible Assignee, (iv) ~~except in~~ each such assignment made as a result of a demand by the ~~case of~~ Borrower pursuant to this Section 8.07(a) shall be arranged by the Borrower after consultation with the Administrative Agent and shall be either an assignment of all of the rights and obligations of the assigning Lender under this Agreement or an assignment of a portion of such rights and obligations made concurrently with another such assignment or other such assignments that together cover all of the rights and obligations of the assigning Lender under this Agreement, (v) no Lender shall be obligated to make any such assignment as a result of the demand by ~~a Person that, immediately prior~~ the Borrower pursuant to this Section 8.07(a) unless and until such Lender shall have received one or more payments from either the Borrower or one or more Eligible Assignees in an aggregate amount at least equal to the aggregate outstanding principal amount of the Advances owing to such ~~assignment, was a~~ Lender, together with accrued interest thereon to ~~one~~ the date of ~~its Affiliates~~payment of such principal amount and all other amounts payable to such Lender under this Agreement, (vi) no such assignments shall be permitted without the consent of the Administrative Agent ~~and, so long as no Default~~ until the Administrative Agent shall have ~~occurred and be continuing at~~ notified the ~~time~~ Lender Parties that syndication of ~~effectiveness of such assignment~~the Commitments hereunder has been completed as determined by the Agents, ~~BMCA (in each case, which consents shall not be unreasonably withheld)~~ and (vvii) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together with any Note or Notes subject to such assignment and a processing and recordation fee of $~~3,500~~3,000; provided, however, that such fee shall not be required if any such assignment was made by a Lender to an Affiliate of such Lender. (b) Upon such execution, delivery, acceptance and recording, from and after the effective date specified in such Assignment and Acceptance, (ix) the assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, have the rights and obligations of a Lender or Issuing Bank, as the case may be, hereunder and (iiy) the Lender or Issuing Bank assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights ~~(other than its rights under Sections 2.09, 2.11 and 8.04 to the extent any claim thereunder relates to an event arising prior to such assignment)~~ and be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all of or the remaining portion of an assigning Lender’s 's or Issuing Bank's rights and obligations under this Agreement, such Lender or Issuing Bank shall cease to be a party hereto). (c) By executing and delivering an Assignment and Acceptance, each Lender Party assignor thereunder and each assignee thereunder confirm to and agree with each other and the other parties thereto and hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender Party makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or any other Loan Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value of, or the perfection or priority of any ~~lien~~ Lien or security interest created or purported to be created under or in connection with, this Agreement or any other Loan Document or any other instrument or document furnished pursuant hereto or thereto; (ii) such assigning Lender Party makes no representation or warranty and assumes no responsibility with respect to the financial condition of the Borrower or any other Loan Party or the performance or observance by any Loan Party of any of its obligations under any Loan Document or any other instrument or document furnished pursuant thereto; (iii) such 100 assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 4.01 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) such assignee will, independently and without reliance upon ~~any~~ the Administrative Agent, such assigning Lender Party or any other Lender Party and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) such assignee confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes ~~each~~ the Administrative Agent to take such action as agent on its behalf and to exercise such powers and discretion under the Loan Documents as are delegated to ~~such~~ the Administrative Agent by the terms ~~hereof and thereof~~hereof, together with such powers and discretion as are reasonably incidental thereto; and (vii) such assignee agrees that it will perform in accordance with their terms all of the obligations ~~that~~ which by the terms of this Agreement are required to be performed by it as a ~~Lender~~Lender or Issuing Bank, as the case may be. (d) The Administrative Agent ~~acting for this purpose (but only for this purpose) as the agent of the Borrowers,~~ shall maintain at its address referred to in Section 8.02 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 ~~Lenders~~ Lender Parties and the ~~Term Loan~~ Commitment under each Facility of, and principal amount of the ~~Term Loan~~ Advances owing under each Facility to, each Lender Party from time to time (the “"Register”"). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the ~~Borrowers~~Borrower, the Agents and the ~~Lenders shall~~ Lender Parties may treat each Person whose name is recorded in the Register as a Lender Party hereunder for all purposes of this Agreement. The Register shall be available for inspection by the ~~Borrowers or any Agent~~ Borrower or any Lender Party at any reasonable time and from time to time upon reasonable prior notice. (e) Notwithstanding anything to the contrary contained in clause (b) above, the Term Loan Advances (including the Notes evidencing such Term Loan Advances) are registered obligations and the right, title, and interest of the Lenders and their assignees in and to such Term Loan Advances shall be transferable only upon notation of such transfer in the Register. A Note shall only evidence the Lender’s or an assignee’s right title and interest in and to the related Term Loan Advance, and in no event is any such Note to be considered a bearer instrument or obligation. This Section 8.07 shall be construed so that the Term Loan Advances are at all times maintained in “registered form” within the meaning of sections 163(f), 871(h)(2) and 881(c)(2) of the Internal Revenue Code and any related regulations (or any successor provisions of the Internal Revenue Code or such regulations). Solely for purposes of this and for tax purposes only, the Administrative Agent shall act as each Borrower’s agent for purposes of maintaining such notations of transfer in the Register. (f) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender Party and an assignee, together with any Note or Notes requested by the Assignee subject to such assignment, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit C hereto, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to ~~BMCA and each other Agent~~the Borrower. In the case of any assignment by a Lender, within five Business Days after its receipt of such notice, the ~~Borrowers~~Borrower, at ~~their~~ its own expense, ~~shall, if requested by the assignee,~~ shall execute and deliver to the Administrative Agent in exchange for the surrendered Note or ~~Notes an amended and restated~~ Notes, if any, a new Note ~~(which shall be marked “Amended and Restated”)~~ to the order of such Eligible ~~Assignee~~ Assignee, if requested by such Eligible Assignee, in an amount equal to the ~~Term Loan~~ Commitment assumed by it under ~~each~~ a Facility pursuant to such Assignment and Acceptance and, if ~~any~~ the assigning Lender has retained a ~~Term Loan~~ Commitment hereunder under such ~~Facility and has requested~~ Facility, a ~~replacement~~ new Note, ~~an amended and restated Note~~ if requested by such Lender, to the order of ~~such~~ the assigning Lender in an amount equal to the ~~Term Loan~~ Commitment retained by it hereunder. Such ~~amended and restated~~ new Note or ~~Notes~~ Notes, if requested, shall be in an aggregate principal amount equal to the aggregate principal amount of such ~~surrendered Note~~ Lender's or ~~Notes~~Eligible Assignee's Commitment hereunder, as the case may be, shall be dated the effective date of such Assignment and Acceptance and shall otherwise be in substantially the form of Exhibit A X-0, X-0 or A-3 hereto, as the case may be. (f) The Issuing Bank may assign to an Eligible Assignee all of its rights and obligations under the undrawn portion of its Letter of Credit Commitment at any time. (g) Each Lender Party may sell participations ~~to one or more Persons (other than any Loan Party or any of its Affiliates)~~ in or to all or a portion of its rights and obligations under this Agreement (~~including~~ including, without limitation, all or a portion of its ~~Term Loan~~ Commitments, the ~~Term Loan~~ Advances owing to it and ~~the~~ any Note or Notes ~~(if any)~~ held by it)) to any Person other than any Loan Party or any of its Subsidiaries or Affiliates; provided, however, that (i) such ~~Lender’s~~ Lender Party's obligations under this Agreement (~~including~~ including, without limitation, its ~~Term Loan~~ Commitments) shall remain unchanged, (ii) such Lender Party shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) such Lender Party shall remain the holder of such Advances and any such Note for all purposes of this Agreement, (iv) the ~~Borrowers~~Borrower, the Agents and the other ~~Lenders~~ Lender Parties shall continue to deal solely and directly with such Lender Party in connection with such ~~Lender’s~~ Lender Party's rights and obligations under this Agreement and (v) no participant under any such participation shall have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent ~~requires~~ would reduce the ~~consent~~ principal of, or interest on, the Advances or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, postpone any date fixed for any payment of principal of, or interest on, the Advances or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, or release all ~~Lenders~~or substantially all of the Collateral. (h) Any Lender Party may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section 8.07, disclose to the assignee or participant or proposed assignee or ~~participant~~ participant, any information relating to the ~~Borrowers~~ Borrower furnished to such Lender Party by or on behalf of the Borrowers; provided, however, 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 received by it from such Lender in accordance with the terms of Section 8.09Borrower. (i) Notwithstanding any other provision set forth in this Agreement, any Lender Party may at any time pledge, assign or create a security interest in all or any portion of its rights under this Agreement (~~including~~ including, without limitation, the ~~Term Loan~~ Advances owing to it and the Note or Notes held by it) in favor of (i) any Federal Reserve Bank in accordance with Regulation A of the Board of Governors of the Federal Reserve ~~System.~~ System or (jii) ~~Notwithstanding anything~~ to ~~the contrary contained herein~~secure obligations of such Lender Party; provided, ~~any Lender~~ that ~~is a fund that invests in bank loans may create~~ no such pledge or assignment or creation of a security interest in all or any portion of the Term Loan Advances owing to it and the Note or Notes held by it to the trustee for holders of obligations owed, or securities issued, by such fund as security for such obligations or securities, provided, that unless and until such trustee actually becomes shall release a Lender ~~in compliance with the other provisions of this Section 8.07, (i) no such pledge shall release the pledging Lender~~ Party from any of its obligations ~~under the Loan Documents and (ii)~~ hereunder or substitute any such ~~trustee shall not be entitled to exercise any of the rights of~~ pledgee or assignee for such Lender Party as a ~~Lender under the Loan Documents even though such trustee may have acquired ownership rights with respect to the pledged interest through foreclosure or otherwise~~party hereto. (k) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Lender”) may grant to a special purpose funding vehicle identified as such in writing from time to time by the Granting Lender to the Administrative Agent and BMCA (an “SPC”) the option to provide all or any part of any Term Loan Advance that such Granting Lender would otherwise be obligated to make pursuant to this Agreement, provided that (i) nothing herein shall constitute a commitment by any SPC to fund any Term Loan Advance, and (ii) if an SPC elects not to exercise such option or otherwise fails to make all or any part of such Term Loan Advance, the Granting Lender shall be obligated to make such Term Loan Advance pursuant to the terms hereof. The making of an Advance by an SPC hereunder shall utilize the Term Loan Commitment of the Granting Lender to the same extent, and as if, such Term Loan Advance were made by such Granting Lender. Each party hereto hereby agrees that (i) no SPC shall be liable for any indemnity or similar payment obligation under this Agreement for which a Lender would be liable, (ii) no SPC shall be entitled to the benefits of Sections 2.09 and 2.11 (or any other increased costs protection provision) and (iii) the Granting Bank shall for all purposes, including the approval of any amendment or waiver of any provision of any Loan Document, remain the Lender of record hereunder. In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior Debt of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency, or liquidation proceeding under the laws of the United States or any State thereof. Notwithstanding anything to the contrary contained in this Agreement, any SPC may (i) with notice to, but without prior consent of, BMCA and the Administrative Agent and with the payment of a processing fee of $500 and without paying any processing fee therefor, assign all or any portion of its interest in any Term Loan Advance to the Granting Lender and (ii) disclose on a confidential basis any non-public information relating to its funding of Term Loan Advance to any rating agency, commercial paper dealer or provider of any surety or guarantee or credit or liquidity enhancement to such SPC. This subsection (k) may not be amended without the prior written consent of each Granting Lender, all or any part of whose Term Loan Advances are being funded by the SPC at the time of such amendment.

Appears in 1 contract

Samples: Credit Agreement (Mediq Inc)

Assignments and Participations. (a) Each Lender ~~may, upon at least five Business Days’ notice to such Lender and the Administrative Agent,~~ Party may assign to one or more Eligible Assignees all or a portion of its rights and obligations under this Agreement (~~including~~ including, without limitation, all or a portion of its ~~Term Loan Commitment~~Commitment or Commitments, the ~~Term Loan~~ Advances owing to it and the Note or Notes held by it); provided, however, that (i) each such assignment shall be of a uniform, and not a varying, percentage of all rights and obligations under ~~this Agreement~~and in respect of the Facilities on a pro rata basis with respect to each Facility, (ii) except in the case of an assignment to a Person that, immediately prior to such assignment, was a ~~Lender, an Affiliate of any Lender or an Approved Fund of any~~ Lender or an assignment of all of a ~~Lender’s~~ Lender Party's rights and obligations under this Agreement, the ~~aggregate~~ amount of the ~~Term Loan Commitments or Term Loan Advances~~ Commitment of the assigning Lender Party being assigned ~~to such Eligible Assignee~~ pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $5,000,000 (or such lesser amount as shall be approved by the Administrative Agent and, so long as no Default shall have occurred and be continuing at the time of effectiveness of such assignment, BMCA)5,000,000, (iii) ~~each such assignment shall be to an Eligible Assignee, (iv) except in the case of an assignment by a Person that, immediately prior to such assignment, was a Lender, to one of its Affiliates,~~ no such assignments shall be permitted without the prior consent of the Administrative Agent ~~and, so long as no Default~~ (which may be withheld for any reason) until the earlier to occur of (x) the date on which the Administrative Agent shall have ~~occurred~~ notified the Lender Parties that syndication of the Commitments hereunder has been completed or (y) the 120th day following the Closing Date, (iv) no such assignment shall be permitted if, immediately after giving effect thereto, the Borrower would be required to make payments to or on behalf of the assignee Lender Party pursuant to Section 2.10(a) or (b) and ~~be continuing~~ the assignor Lender Party was not, at the time of ~~effectiveness of~~ such assignment, ~~BMCA~~ entitled to receive any payment pursuant to Section 2.10(a) or (~~in each case~~b), ~~which consents shall not be unreasonably withheld)~~ and (v) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together with any Note or Notes subject to such assignment and a processing and recordation fee of $~~3,500~~3,000. (b) Upon such execution, delivery, acceptance and recording, from and after the effective date specified in such Assignment and Acceptance, (ix) the assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, have the rights and obligations of a Lender or Issuing Bank, as the case may be, hereunder and (iiy) the Lender or Issuing Bank assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights ~~(other than its rights under Sections 2.09, 2.11 and 8.04 to the extent any claim thereunder relates to an event arising prior to such assignment)~~ and be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all of or the remaining portion of an assigning Lender’s 's or Issuing Bank's rights and obligations under this Agreement, such Lender or Issuing Bank shall cease to be a party hereto), except as to Sections 2.10, 2.12 and 8.04 for the period prior to the effective date of such assignments. (c) By executing and delivering an Assignment and Acceptance, ~~each~~ the Lender Party assignor thereunder and ~~each~~ the assignee thereunder confirm to and agree with each other and the other parties thereto and hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with any Loan Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value of, or the perfection or priority of any lien or security interest created or purported to be created under or in connection with, any Loan Document or any other instrument or document furnished pursuant thereto; (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party or the performance or observance by any Loan Party of any of its obligations under any Loan Document or any other instrument or document furnished pursuant thereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 4.01 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) such assignee will, independently and without reliance upon any Agent, such assigning Lender or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) such assignee confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes each Agent to take such action as agent on its behalf and to exercise such powers and discretion under the Loan Documents as are delegated to such Agent by the terms hereof and thereof, together with such powers and discretion as are reasonably incidental thereto; and (vii) such assignee agrees that it will perform in accordance with their terms all of the obligations that by the terms of this Agreement are required to be performed by it as a Lender. (d) The Administrative Agent acting for this purpose (but only for this purpose) as the agent of the Borrowers, shall maintain at its address referred to in Section 8.02 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 Lenders and the Term Loan Commitment of, and principal amount of the Term Loan Advances 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 Borrowers, the Agents and the Lenders shall treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrowers or any Agent or any Lender at any reasonable time and from time to time upon reasonable prior notice. (e) Notwithstanding anything to the contrary contained in clause (b) above, the Term Loan Advances (including the Notes evidencing such Term Loan Advances) are registered obligations and the right, title, and interest of the Lenders and their assignees in and to such Term Loan Advances shall be transferable only upon notation of such transfer in the Register. A Note shall only evidence the Lender’s or an assignee’s right title and interest in and to the related Term Loan Advance, and in no event is any such Note to be considered a bearer instrument or obligation. This Section 8.07 shall be construed so that the Term Loan Advances are at all times maintained in “registered form” within the meaning of sections 163(f), 871(h)(2) and 881(c)(2) of the Internal Revenue Code and any related regulations (or any successor provisions of the Internal Revenue Code or such regulations). Solely for purposes of this and for tax purposes only, the Administrative Agent shall act as each Borrower’s agent for purposes of maintaining such notations of transfer in the Register. (f) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee, together with any Note or Notes subject to such assignment, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit C hereto, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to BMCA and each other Agent. In the case of any assignment by a Lender, within five Business Days after its receipt of such notice, the Borrowers, at their own expense, shall, if requested by the assignee, execute and deliver to the Administrative Agent in exchange for the surrendered Note or Notes an amended and restated Note (which shall be marked “Amended and Restated”) to the order of such Eligible Assignee in an amount equal to the Term Loan Commitment assumed by it under each Facility pursuant to such Assignment and Acceptance and, if any assigning Lender has retained a Term Loan Commitment hereunder under such Facility and has requested a replacement Note, an amended and restated Note to the order of such assigning Lender in an amount equal to the Term Loan Commitment retained by it hereunder. Such amended and restated 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 Assignment and Acceptance and shall otherwise be in substantially the form of Exhibit A hereto. (g) Each Lender may sell participations to one or more Persons (other than any Loan Party or any of its Affiliates) in or to all or a portion of its rights and obligations under this Agreement (including all or a portion of its Term Loan Commitments, the Term Loan Advances owing to it and the Note or Notes (if any) held by it); provided, however, that (i) such Lender’s obligations under this Agreement (including its Term Loan Commitments) shall remain unchanged, (ii) 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, (iv) the Borrowers, the Agents and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and (v) no participant under any such participation shall have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent requires the consent of all Lenders. (h) Any Lender may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section 8.07, disclose to the assignee or participant or proposed assignee or participant any information relating to the Borrowers furnished to such Lender by or on behalf of the Borrowers; provided, however, 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 received by it from such Lender in accordance with the terms of Section 8.09. (i) Notwithstanding any other provision set forth in this Agreement, any Lender may at any time create a security interest in all or any portion of its rights under this Agreement (including the Term Loan 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 System. (j) Notwithstanding anything to the contrary contained herein, any Lender that is a fund that invests in bank loans may create a security interest in all or any portion of the Term Loan Advances owing to it and the Note or Notes held by it to the trustee for holders of obligations owed, or securities issued, by such fund as security for such obligations or securities, provided, that unless and until such trustee actually becomes a Lender in compliance with the other provisions of this Section 8.07, (i) no such pledge shall release the pledging Lender from any of its obligations under the Loan Documents and (ii) such trustee shall not be entitled to exercise any of the rights of a Lender under the Loan Documents even though such trustee may have acquired ownership rights with respect to the pledged interest through foreclosure or otherwise. (k) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Lender”) may grant to a special purpose funding vehicle identified as such in writing from time to time by the Granting Lender to the Administrative Agent and BMCA (an “SPC”) the option to provide all or any part of any Term Loan Advance that such Granting Lender would otherwise be obligated to make pursuant to this Agreement, provided that (i) nothing herein shall constitute a commitment by any SPC to fund any Term Loan Advance, and (ii) if an SPC elects not to exercise such option or otherwise fails to make all or any part of such Term Loan Advance, the Granting Lender shall be obligated to make such Term Loan Advance pursuant to the terms hereof. The making of an Advance by an SPC hereunder shall utilize the Term Loan Commitment of the Granting Lender to the same extent, and as if, such Term Loan Advance were made by such Granting Lender. Each party hereto hereby agrees that (i) no SPC shall be liable for any indemnity or similar payment obligation under this Agreement for which a Lender would be liable, (ii) no SPC shall be entitled to the benefits of Sections 2.09 and 2.11 (or any other increased costs protection provision) and (iii) the Granting Bank shall for all purposes, including the approval of any amendment or waiver of any provision of any Loan Document, remain the Lender of record hereunder. In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior Debt of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency, or liquidation proceeding under the laws of the United States or any State thereof. Notwithstanding anything to the contrary contained in this Agreement, any SPC may (i) with notice to, but without prior consent of, BMCA and the Administrative Agent and with the payment of a processing fee of $500 and without paying any processing fee therefor, assign all or any portion of its interest in any Term Loan Advance to the Granting Lender and (ii) disclose on a confidential basis any non-public information relating to its funding of Term Loan Advance to any rating agency, commercial paper dealer or provider of any surety or guarantee or credit or liquidity enhancement to such SPC. This subsection (k) may not be amended without the prior written consent of each Granting Lender, all or any part of whose Term Loan Advances are being funded by the SPC at the time of such amendment.other

Appears in 1 contract

Samples: Credit Agreement (Applied Graphics Technologies Inc)

Assignments and Participations. (a) Each Lender ~~may, upon at least five Business Days’ notice to such Lender and the Administrative Agent,~~ may assign to one or more Eligible Assignees all or a portion of its rights and obligations under this Agreement (~~including~~ including, without limitation, all or a portion of its ~~Term Loan Commitment~~Commitment or Commitments, the ~~Term Loan~~ Advances owing to it and the Note or Notes held by it); provided, however, that (i) each such assignment shall be of a uniform, and not a varying, percentage of all rights and obligations under ~~this Agreement~~and in respect of the Facility, (ii) except in the case of an assignment to a Person that, immediately prior to such assignment, was a Lender, an Affiliate of any Lender or an Approved Fund of any Lender or an assignment of all of a Lender’s 's rights and obligations under this Agreement, the aggregate amount of the ~~Term Loan~~ Commitments ~~or Term Loan Advances~~ being assigned to such Eligible Assignee pursuant to such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $5,000,000 (or such lesser amount as shall be approved by the Administrative Agent and, so long as no Event of Default shall have occurred and be continuing at the time of effectiveness of such assignment, ~~BMCA~~the Borrower), (iii) each such assignment shall be to an Eligible Assignee, (iv) ~~except in the case of~~ no such assignments (other than an assignment by ~~a Person that, immediately prior~~ any Lender to an Affiliate or an Approved Fund of such ~~assignment, was a~~ Lender~~, to one of its Affiliates, no such assignments~~ ) shall be permitted (x) prior to the earlier of (A) the four month anniversary of the Effective Date and (B) the date on which the Administrative Agent shall notify the Lenders that syndication of the Commitments has been completed without the consent of the Administrative Agent ~~and, so long as no Default shall have occurred and be continuing at the time of effectiveness of such assignment, BMCA~~ (in ~~each case,~~ its sole discretion) and (y) thereafter without the consent of the Administrative Agent (which ~~consents~~ consent shall not be unreasonably withheld) and (viv) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together with any Note or Notes subject to such ~~assignment and a processing and recordation fee of $3,500~~assignment. (b) Upon such execution, delivery, acceptance and recording, from and after the effective date specified in such 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, have the rights and obligations of a Lender hereunder and (ii) the Lender assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (other than its rights under Sections ~~2.09~~2.8, ~~2.11~~ 2.10 and ~~8.04~~ 9.5 to the extent any claim thereunder relates to an event arising prior to such assignment) and be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all of the remaining portion of an assigning Lender’s 's rights and obligations under this Agreement, such Lender shall cease to be a party hereto). (c) By executing and delivering an Assignment and Acceptance, each Lender assignor thereunder and each assignee thereunder confirm to and agree with each other and the other parties thereto and hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with any Loan Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value of, or the perfection or priority of any lien or security interest created or purported to be created under or in connection with, any Loan Document or any other instrument or document furnished pursuant thereto; (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of ~~any Loan Party~~ either Borrower or the performance or observance by ~~any Loan Party~~ either Borrower of any of its obligations under any Loan Document or any other instrument or document furnished pursuant thereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section ~~4.01~~ 5.1 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) such assignee will, independently and without reliance upon any Agent, such assigning Lender or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) such assignee confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes each Agent to take such action as agent on its behalf and to exercise such powers and discretion under the Loan Documents as are delegated to such Agent by the terms hereof and thereof, together with such powers and discretion as are reasonably incidental thereto; and (vii) such assignee agrees that it will perform in accordance with their terms all of the obligations that by the terms of this Agreement are required to be performed by it as a Lender. (d) The Administrative ~~Agent~~ Agent, acting for this purpose (but only for this purpose) as the agent of the Borrowers, shall maintain at its address referred to in Section ~~8.02~~ 9.2 a copy of each Assignment and Acceptance delivered to and accepted by it and a register for the recordation of the names and addresses of the Lenders and the ~~Term Loan Commitment~~ Commitments of, and principal amount of the ~~Term Loan~~ 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 Borrowers, the Agents and the Lenders shall treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrowers or any Agent or any Lender at any reasonable time and from time to time upon reasonable prior notice. (e) Notwithstanding anything to the contrary contained in clause (b) above, the Term Loan Advances (including the Notes evidencing such Term Loan Advances) are registered obligations and the right, title, and interest of the Lenders and their assignees in and to such Term Loan Advances shall be transferable only upon notation of such transfer in the Register. A Note shall only evidence the Lender’s or an assignee’s right title and interest in and to the related Term Loan Advance, and in no event is any such Note to be considered a bearer instrument or obligation. This Section 8.07 shall be construed so that the Term Loan Advances are at all times maintained in “registered form” within the meaning of sections 163(f), 871(h)(2) and 881(c)(2) of the Internal Revenue Code and any related regulations (or any successor provisions of the Internal Revenue Code or such regulations). Solely for purposes of this and for tax purposes only, the Administrative Agent shall act as each Borrower’s agent for purposes of maintaining such notations of transfer in the Register. (f) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee, together with any Note or Notes subject to such assignment, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit C hereto, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to ~~BMCA~~ each Borrower and each other Agent. In the case of any assignment by a Lender, within five Business Days after its receipt of such notice, the Borrowers, at their own expense, ~~shall, if requested by the assignee,~~ shall execute and deliver to the Administrative Agent in exchange for the surrendered Note or Notes ~~an amended and restated~~ a new Note ~~(which shall be marked “Amended and Restated”)~~ to the order of such Eligible Assignee in an amount equal to the ~~Term Loan~~ Commitment assumed by it ~~under each Facility~~ pursuant to such Assignment and Acceptance and, if any assigning Lender has retained a ~~Term Loan~~ Commitment ~~hereunder under such Facility and has requested~~ hereunder, a ~~replacement Note, an amended and restated~~ new Note to the order of such assigning Lender in an amount equal to the ~~Term Loan~~ Commitment retained by it hereunder. Such ~~amended and restated~~ 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 Assignment and Acceptance and shall otherwise be in substantially the form of Exhibit A A-1 or A-2 hereto, as the case may be. (gf) Each Lender may sell participations to one or more Persons (other than ~~any Loan Party~~ either Borrower or any of its Affiliates) in or to all or a portion of its rights and obligations under this Agreement (~~including~~ including, without limitation, all or a portion of its ~~Term Loan~~ Commitments, the ~~Term Loan~~ Advances owing to it and the Note or Notes (if any) held by it); provided, however, that (i) such Lender’s 's obligations under this Agreement (~~including~~ including, without limitation, its ~~Term Loan~~ Commitments) shall remain unchanged, (ii) 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, (iv) the Borrowers, the Agents and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s 's rights and obligations under this Agreement and (v) no participant under any such participation shall have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by ~~any Loan Party~~ either Borrower therefrom, except to the extent that such amendment, waiver or consent ~~requires~~ would reduce the ~~consent~~ principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation or postpone any date fixed for any payment of ~~all Lenders~~principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation. (hg) Any Lender may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section ~~8.07~~9.7, disclose to the assignee or participant or proposed assignee or participant any information relating to the Borrowers furnished to such Lender by or on behalf of the Borrowers; provided, however, 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~~ confidential information received by it from such ~~Lender in accordance with the terms of Section 8.09~~Lender. (ih) Notwithstanding any other provision set forth in this Agreement, any Lender may at any time create a security interest in all or any portion of its rights under this Agreement (~~including~~ including, without limitation, the ~~Term Loan~~ 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 System~~Board. (j) Notwithstanding anything to the contrary contained herein, any Lender that is a fund that invests in bank loans may create a security interest in all or any portion of the Term Loan Advances owing to it and the Note or Notes held by it to the trustee for holders of obligations owed, or securities issued, by such fund as security for such obligations or securities, provided, that unless and until such trustee actually becomes a Lender in compliance with the other provisions of this Section 8.07, (i) no such pledge shall release the pledging Lender from any of its obligations under the Loan Documents and (ii) such trustee shall not be entitled to exercise any of the rights of a Lender under the Loan Documents even though such trustee may have acquired ownership rights with respect to the pledged interest through foreclosure or otherwise. (k) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Lender”) may grant to a special purpose funding vehicle identified as such in writing from time to time by the Granting Lender to the Administrative Agent and BMCA (an “SPC”) the option to provide all or any part of any Term Loan Advance that such Granting Lender would otherwise be obligated to make pursuant to this Agreement, provided that (i) nothing herein shall constitute a commitment by any SPC to fund any Term Loan Advance, and (ii) if an SPC elects not to exercise such option or otherwise fails to make all or any part of such Term Loan Advance, the Granting Lender shall be obligated to make such Term Loan Advance pursuant to the terms hereof. The making of an Advance by an SPC hereunder shall utilize the Term Loan Commitment of the Granting Lender to the same extent, and as if, such Term Loan Advance were made by such Granting Lender. Each party hereto hereby agrees that (i) no SPC shall be liable for any indemnity or similar payment obligation under this Agreement for which a Lender would be liable, (ii) no SPC shall be entitled to the benefits of Sections 2.09 and 2.11 (or any other increased costs protection provision) and (iii) the Granting Bank shall for all purposes, including the approval of any amendment or waiver of any provision of any Loan Document, remain the Lender of record hereunder. In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior Debt of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency, or liquidation proceeding under the laws of the United States or any State thereof. Notwithstanding anything to the contrary contained in this Agreement, any SPC may (i) with notice to, but without prior consent of, BMCA and the Administrative Agent and with the payment of a processing fee of $500 and without paying any processing fee therefor, assign all or any portion of its interest in any Term Loan Advance to the Granting Lender and (ii) disclose on a confidential basis any non-public information relating to its funding of Term Loan Advance to any rating agency, commercial paper dealer or provider of any surety or guarantee or credit or liquidity enhancement to such SPC. This subsection (k) may not be amended without the prior written consent of each Granting Lender, all or any part of whose Term Loan Advances are being funded by the SPC at the time of such amendment.

Appears in 1 contract

Samples: Senior Bridge Loan Agreement (Charter Communications Holdings Capital Corp)

Assignments and Participations. (a) Each Lender ~~may, upon at least five Business Days’ notice to such Lender and the Administrative Agent,~~ may assign to one or more Eligible Assignees all or a portion of its rights and obligations under this Agreement (~~including~~ including, without limitation, all or a portion of its ~~Term Loan Commitment~~Commitment or Commitments, the ~~Term Loan~~ Advances owing to it and the Note or Notes held by it); provided, however, that (i) each such assignment shall be of a uniform, and not a varying, percentage of all rights and obligations under ~~this Agreement~~and in respect of any or all Facilities, (ii) except in the case of an assignment to a Person that, immediately prior to such assignment, was a Lender, an Affiliate of any Lender or an Approved Fund of any Lender or an assignment of all of a Lender’s 's rights and obligations under this Agreement, the aggregate amount of the ~~Term Loan~~ Commitments ~~or Term Loan Advances~~ being assigned to such Eligible Assignee pursuant to such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $~~5,000,000~~ 1,000,000 and shall be in an integral multiple of $500,000 (or such lesser amount as shall be approved by the Administrative Agent and, so long as no Default shall have occurred and be continuing at the time of effectiveness of such assignment, ~~BMCA)~~the Borrower) under each Facility for which a Commitment is being assigned, (iii) each such assignment shall be to an Eligible Assignee, (iv) ~~except in the case of an assignment by a Person that, immediately prior to such assignment, was a Lender, to one of its Affiliates,~~ no such assignments shall be permitted without the consent of the Administrative Agent ~~and, so long as no Default~~ until the Administrative Agent shall have ~~occurred and be continuing at~~ notified the ~~time~~ Lender Parties that syndication of ~~effectiveness of such assignment, BMCA (in each case, which consents shall not be unreasonably withheld)~~ the Commitments hereunder has been completed and (v) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together with any Note or Notes subject to such assignment and a processing and recordation fee of $3,500. (b) Upon such execution, delivery, acceptance and recording, from and after the effective date specified in such 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, have the rights and obligations of a Lender or Issuing Bank, as the case may be, hereunder and (ii) the Lender or Issuing Bank assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (other than its rights under Sections ~~2.09~~2.10, ~~2.11~~ 2.12 and 8.04 to the extent any claim thereunder relates to an event arising prior to such assignment) and be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all of the remaining portion of an assigning Lender’s 's or Issuing Bank's rights and obligations under this Agreement, such Lender or Issuing Bank shall cease to be a party hereto). (c) By executing and delivering an Assignment and Acceptance, each Lender Party assignor thereunder and each assignee thereunder confirm to and agree with each other and the other parties thereto and hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender Party makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with any Loan Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value of, or the perfection or priority of any lien or security interest created or purported to be created under or in connection with, any Loan Document or any other instrument or document furnished pursuant thereto; (ii) such assigning Lender Party makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party or the performance or observance by any Loan Party of any of its obligations under any Loan Document or any other instrument or document furnished pursuant thereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 4.01 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) such assignee will, independently and without reliance upon ~~any~~ the Administrative Agent, such assigning Lender Party or any other Lender Party and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) such assignee confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes ~~each~~ the Administrative Agent to take such action as agent on its behalf and to exercise such powers and discretion under the Loan Documents as are delegated to ~~such~~ the Administrative Agent by the terms hereof and thereof, together with such powers and discretion as are reasonably incidental thereto; and (vii) such assignee agrees that it will perform in accordance with their terms all of the obligations that by the terms of this Agreement are required to be performed by it as a ~~Lender~~Lender or Issuing Bank, as the case may be. (d) The Administrative Agent ~~acting for this purpose (but only for this purpose) as the agent of the Borrowers,~~ shall maintain at its address referred to in Section 8.02 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 ~~Lenders~~ Lender Parties and the ~~Term Loan~~ Commitment under each Facility of, and principal amount of the ~~Term Loan~~ Advances owing under each Facility to, each Lender Party from time to time (the ~~“Register”~~"REGISTER"). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the ~~Borrowers~~Borrower, the ~~Agents~~ Administrative Agent and the ~~Lenders shall~~ Lender Parties may treat each Person whose name is recorded in the Register as a Lender Party hereunder for all purposes of this Agreement. The Register shall be available for inspection by the ~~Borrowers~~ Borrower or ~~any~~ the Administrative Agent or any Lender Party at any reasonable time and from time to time upon reasonable prior notice. (e) Notwithstanding anything to the contrary contained in clause (b) above, the Term Loan Advances (including the Notes evidencing such Term Loan Advances) are registered obligations and the right, title, and interest of the Lenders and their assignees in and to such Term Loan Advances shall be transferable only upon notation of such transfer in the Register. A Note shall only evidence the Lender’s or an assignee’s right title and interest in and to the related Term Loan Advance, and in no event is any such Note to be considered a bearer instrument or obligation. This Section 8.07 shall be construed so that the Term Loan Advances are at all times maintained in “registered form” within the meaning of sections 163(f), 871(h)(2) and 881(c)(2) of the Internal Revenue Code and any related regulations (or any successor provisions of the Internal Revenue Code or such regulations). Solely for purposes of this and for tax purposes only, the Administrative Agent shall act as each Borrower’s agent for purposes of maintaining such notations of transfer in the Register. (f) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender Party and an assignee, together with any Note or Notes subject to such assignment, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit C hereto, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to ~~BMCA~~ the Borrower and each other Administrative Agent. In the case of any assignment by a Lender, within five Business Days after its receipt of such notice, the ~~Borrowers~~Borrower, at ~~their~~ its own expense, ~~shall, if requested by the assignee,~~ shall execute and deliver to the Administrative Agent in exchange for the surrendered Note or Notes ~~an amended and restated~~ a new Note ~~(which shall be marked “Amended and Restated”)~~ to the order of such Eligible Assignee in an amount equal to the ~~Term Loan~~ Commitment assumed by it under each Facility pursuant to such Assignment and Acceptance and, if any assigning Lender has retained a ~~Term Loan~~ Commitment hereunder under such ~~Facility and has requested~~ Facility, a ~~replacement Note, an amended and restated~~ new Note to the order of such assigning Lender in an amount equal to the ~~Term Loan~~ Commitment retained by it hereunder. Such ~~amended and restated~~ 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 Assignment and Acceptance and shall otherwise be in substantially the form of Exhibit A A-1 or A-2 hereto, as the case may be. (f) The Issuing Bank may assign to an Eligible Assignee not less than all of its rights and obligations under the undrawn portion of its Letter of Credit Commitment at any time; provided, however, that (i) each such assignment shall be to an Eligible Assignee and (ii) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together with a processing and recordation fee of $3,500. (g) Each Lender Party may sell participations to one or more Persons (other than any Loan Party or any of its Affiliates) in or to all or a portion of its rights and obligations under this Agreement (~~including~~ including, without limitation, all or a portion of its ~~Term Loan~~ Commitments, the ~~Term Loan~~ Advances owing to it and the Note or Notes (if any) held by it); provided, however, that (i) such ~~Lender’s~~ Lender Party's obligations under this Agreement (~~including~~ including, without limitation, its ~~Term Loan~~ Commitments) shall remain unchanged, (ii) such Lender Party shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) such Lender Party shall remain the holder of any such Note for all purposes of this Agreement, (iv) the ~~Borrowers~~Borrower, the ~~Agents~~ Administrative Agent and the other ~~Lenders~~ Lender Parties shall continue to deal solely and directly with such Lender Party in connection with such ~~Lender’s~~ Lender Party's rights and obligations under this Agreement and (v) no participant under any such participation shall have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent ~~requires~~ would reduce the ~~consent~~ principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, postpone any date fixed for any payment of principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, or release all ~~Lenders~~or substantially all of the Collateral. (h) Any Lender Party may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section 8.07, disclose to the assignee or participant or proposed assignee or participant any information relating to the ~~Borrowers~~ Borrower furnished to such Lender Party by or on behalf of the ~~Borrowers~~Borrower; provided, however, 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 received by it from such Lender ~~in accordance with the terms of Section 8.09~~Party. (i) Notwithstanding any other provision set forth in this Agreement, any Lender Party may at any time create a security interest in all or any portion of its rights under this Agreement (~~including~~ including, without limitation, the ~~Term Loan~~ 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 System. (j) Notwithstanding anything to the contrary contained herein, any Lender that is a fund that invests in bank loans may create a security interest in all or any portion of the ~~Term Loan~~ Advances owing to it and the Note or Notes held by it to the trustee for holders of obligations owed, or securities issued, by such fund as security for such obligations or securities, provided, that unless and until such trustee actually becomes a Lender in compliance with the other provisions of this Section ~~8.07~~9.07, (i) no such pledge shall release the pledging Lender from any of its obligations under the Loan Documents and (ii) such trustee shall not be entitled to exercise any of the rights of a Lender under the Loan Documents even though such trustee may have acquired ownership rights with respect to the pledged interest through foreclosure or otherwise. (k) Notwithstanding anything to the contrary contained herein, any Lender Party (a ~~“Granting Lender”~~"GRANTING LENDER") may grant to a special purpose funding vehicle identified as such in writing from time to time by the Granting Lender to the Administrative Agent and ~~BMCA~~ the Borrower (an “"SPC”") the option to provide all or any part of any ~~Term Loan~~ Advance that such Granting Lender would otherwise be obligated to make pursuant to this Agreement, provided that (i) nothing herein shall constitute a commitment by any SPC to fund any ~~Term Loan~~ Advance, and (ii) if an SPC elects not to exercise such option or otherwise fails to make all or any part of such ~~Term Loan~~ Advance, the Granting Lender shall be obligated to make such ~~Term Loan~~ Advance pursuant to the terms hereof. The making of an Advance by an SPC hereunder shall utilize the ~~Term Loan~~ Commitment of the Granting Lender to the same extent, and as if, such ~~Term Loan~~ Advance were made by such Granting Lender. Each party hereto hereby agrees that (i) no SPC shall be liable for any indemnity or similar payment obligation under this Agreement for which a Lender Party would be liable, (ii) no SPC shall be entitled to the benefits of Sections ~~2.09~~ 2.10 and ~~2.11~~ 2.12 (or any other increased costs protection provision) and (iii) the Granting Bank shall for all purposes, ~~including~~ including, without limitation, the approval of any amendment or waiver of any provision of any Loan Document, remain the Lender Party of record hereunder. In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior Debt of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency, or liquidation proceeding under the laws of the United States or any State thereof. Notwithstanding anything to the contrary contained in this Agreement, any SPC may (i) with notice to, but without prior consent of, ~~BMCA~~ the Borrower and the Administrative Agent and with the payment of a processing fee of $~~500 and without paying any processing fee therefor~~500, assign all or any portion of its interest in any ~~Term Loan~~ Advance to the Granting Lender and (ii) disclose on a confidential basis any non-public information relating to its funding of ~~Term Loan Advance~~ Advances to any rating agency, commercial paper dealer or provider of any surety or guarantee or credit or liquidity enhancement to such SPC. This subsection (k) may not be amended without the prior written consent of each Granting Lender, all or any part of whose ~~Term Loan~~ Advances are being funded by the SPC at the time of such amendment.

Appears in 1 contract

Samples: Credit Agreement (Grubb & Ellis Co)

Assignments and Participations. (a) Each Lender ~~may, upon at least five Business Days’ notice to such Lender and the Administrative Agent,~~ may assign to one or more Eligible Assignees all or a portion of its rights and obligations under this Agreement (~~including~~ including, without limitation, all or a portion of its ~~Term Loan Commitment~~Commitment or Commitments, the ~~Term Loan~~ Advances owing to it and the Note or Notes held by it); provided, however, that (i) each such assignment shall be of a uniform, and not a varying, percentage of all rights and obligations under ~~this Agreement~~and in respect of any or all Facilities, (ii) except in the case of an assignment to a Person that, immediately prior to such assignment, was a Lender, an Affiliate of any Lender or an Approved Fund of any Lender or an assignment of all of a Lender’s rights and obligations under this Agreement, the aggregate amount of the ~~Term Loan~~ Commitments ~~or Term Loan Advances~~ being assigned to such Eligible Assignee pursuant to such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $~~5,000,000~~ 10,000,000 (or such lesser amount as shall be approved by the Administrative Agent and, so long as no Event of Default under Section 6.01(a) or (f) shall have occurred and be continuing at the time of effectiveness of such assignment, ~~BMCA)~~the Borrower) under each Facility for which a Commitment is being assigned, (iii) each such assignment shall be to an Eligible ~~Assignee,~~ Assignee and (iv) except in the case of an assignment by a Person that, immediately prior to such assignment, was a Lender, to one of its Affiliates, no such assignments shall be permitted without the consent of the Administrative Agent and, so long as no Default shall have occurred and be continuing at the time of effectiveness of such assignment, BMCA (in each case, which consents shall not be unreasonably withheld) and (v) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together with any Note or Notes subject to such assignment and a processing and recordation fee of $~~3,500~~3,500 (unless waived by the Administration Agent in its sole discretion); provided that, only one such fee shall be payable in respect of simultaneous assignments by any Lender to its Affiliates. (b) Upon such execution, delivery, acceptance and recording, from and after the effective date specified in such 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, have the rights and obligations of a Lender or an Issuing Bank, as the case may be, hereunder and (ii) the Lender or an Issuing Bank assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (other than its rights under Sections ~~2.09~~2.10, ~~2.11~~ 2.12 and ~~8.04~~ 9.04 to the extent any claim thereunder relates to an event arising prior to such assignment) and be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all of the remaining portion of an assigning Lender’s or an Issuing Bank’s rights and obligations under this Agreement, such Lender or such Issuing Bank shall cease to be a party hereto). (c) By executing and delivering an Assignment and Acceptance, each Lender Party assignor thereunder and each assignee thereunder confirm to and agree with each other and the other parties thereto and hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender Party makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with any Loan Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value of, or the perfection or priority of any lien or security interest created or purported to be created under or in connection with, any Loan Document or any other instrument or document furnished pursuant thereto; (ii) such assigning Lender Party makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party or the performance or observance by any Loan Party of any of its obligations under any Loan Document or any other instrument or document furnished pursuant thereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the latest financial statements ~~referred~~ delivered pursuant to in Section ~~4.01~~ 3.01 or 5.03 (as applicable) and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) such assignee will, independently and without reliance upon ~~any Agent~~the Administrative, such assigning Lender Party or any other Lender Party and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) such assignee confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes ~~each~~ the Administrative Agent to take such action as agent on its behalf and to exercise such powers and discretion under the Loan Documents as are delegated to such Agent by the terms hereof and thereof, together with such powers and discretion as are reasonably incidental thereto; and (vii) such assignee agrees that it will perform in accordance with their terms all of the obligations that by the terms of this Agreement are required to be performed by it as a ~~Lender~~Lender or an Issuing Bank, as the case may be. (d) The Administrative ~~Agent~~ Agent, acting for this purpose (but only for this purpose) as ~~the~~ a non-fiduciary agent of the ~~Borrowers~~Borrower, shall maintain at its address referred to in Section ~~8.02~~ 9.02 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 ~~Lenders~~ Lender Parties and the ~~Term Loan~~ Commitment under each Facility of, and principal amount of and stated interest on the ~~Term Loan~~ Advances owing under each Facility to, each Lender Party from time to time (the “Register”). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the ~~Borrowers~~Borrower, the Agents and the ~~Lenders~~ Lender Parties shall treat each Person whose name is recorded in the Register as a Lender Party hereunder for all purposes of this Agreement. The Register shall be available for inspection by the ~~Borrowers~~ Borrower or ~~any~~ the Administrative Agent or any Lender Party at any reasonable time and from time to time upon reasonable prior notice. (e) Notwithstanding anything to the contrary contained in clause (b) above, the Term Loan Advances (including the Notes evidencing such Term Loan Advances) are registered obligations and the right, title, and interest of the Lenders and their assignees in and to such Term Loan Advances shall be transferable only upon notation of such transfer in the Register. A Note shall only evidence the Lender’s or an assignee’s right title and interest in and to the related Term Loan Advance, and in no event is any such Note to be considered a bearer instrument or obligation. This Section 8.07 shall be construed so that the Term Loan Advances are at all times maintained in “registered form” within the meaning of sections 163(f), 871(h)(2) and 881(c)(2) of the Internal Revenue Code and any related regulations (or any successor provisions of the Internal Revenue Code or such regulations). Solely for purposes of this and for tax purposes only, the Administrative Agent shall act as each Borrower’s agent for purposes of maintaining such notations of transfer in the Register. (f) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender Party and an assignee, together with any Note or Notes subject to such assignment, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit C hereto, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to ~~BMCA~~ the Borrower and each other Agent. In the case of any assignment by a Lender, ~~within five Business Days~~ promptly after its receipt of ~~such notice~~a notice in accordance with Section 2.16(a), the ~~Borrowers~~Borrower, at ~~their~~ its own expense, ~~shall, if requested by the assignee,~~ shall execute and deliver to the Administrative Agent in exchange for the surrendered Note or Notes ~~an amended and restated~~ a new Note ~~(which shall be marked “Amended and Restated”)~~ to the order of such Eligible Assignee in an amount equal to the ~~Term Loan~~ Commitment assumed by it under each Facility pursuant to such Assignment and Acceptance and, if any assigning Lender has retained a ~~Term Loan~~ Commitment hereunder under such Facility and ~~has requested~~ delivered a ~~replacement Note~~separate notice to the Borrower in accordance with Section 2.16(a), ~~an amended and restated~~ a new Note to the order of such assigning Lender in an amount equal to the ~~Term Loan~~ Commitment retained by it hereunder. Such ~~amended and restated~~ 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 Assignment and Acceptance and shall otherwise be in substantially the form of Exhibit A hereto, as the case may be. (f) Each Issuing Bank may, with the prior written consent of both the Borrower and the Administrative Agent, assign to an Eligible Assignee all of its rights and obligations under the undrawn portion of its Letter of Credit Commitment at any time; provided, however, that each such assignment shall be to an Eligible Assignee and the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together with a processing and recordation fee of $3,500 (unless waived by the Administrative Agent in its sole discretion); provided that, only one such fee shall be payable in respect of simultaneous assignments by any Lender to its Affiliates. (g) Each Lender Party may sell participations to one or more Persons (other than any Loan Party or any of its Affiliates) in or to all or a portion of its rights and obligations under this Agreement (~~including~~ including, without limitation, all or a portion of its ~~Term Loan~~ Commitments, the ~~Term Loan~~ Advances owing to it and the Note or Notes (if any) held by it); provided, however, that (i) such ~~Lender~~Lender Party’s obligations under this Agreement (~~including~~ including, without limitation, its ~~Term Loan~~ Commitments) shall remain unchanged, (ii) such Lender Party shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) such Lender Party shall remain the holder of any such Note for all purposes of this Agreement, (iv) the ~~Borrowers~~Borrower, the Agents and the other ~~Lenders~~ Lender Parties shall continue to deal solely and directly with such Lender Party in connection with such ~~Lender~~Lender Party’s rights and obligations under this Agreement and (v) no participant under any such participation shall have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent ~~requires~~ would reduce the ~~consent~~ principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, postpone any date fixed for any payment of principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, or release all ~~Lenders~~or substantially all of the value of the Guaranty except in connection with transactions otherwise permitted hereunder. (h) Any Lender Party may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section ~~8.07~~9.07, disclose to the assignee or participant or proposed assignee or participant any information relating to the ~~Borrowers~~ Borrower furnished to such Lender Party by or on behalf of the ~~Borrowers~~Borrower; provided, however, 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 received by it from such Lender ~~in accordance with the terms of Section 8.09~~Party. (i) Notwithstanding any other provision set forth in this Agreement, any Lender Party may at any time create a security interest in all or any portion of its rights under this Agreement (~~including~~ including, without limitation, the ~~Term Loan~~ Advances owing to it and the Note or Notes held by it) ), including without limitation, in favor of any Federal Reserve Bank in accordance with Regulation ~~A of the Board of Governors of the Federal Reserve System.~~A. (j) Notwithstanding anything to the contrary contained herein, any Lender that is a fund that invests in bank loans may create a security interest in all or any portion of the ~~Term Loan~~ Advances owing to it and the Note or Notes held by it to the trustee for holders of obligations owed, or securities issued, by such fund as security for such obligations or securities, ~~provided,~~ provided that unless and until such trustee actually becomes a Lender in compliance with the other provisions of this Section ~~8.07~~9.07, (i) no such pledge shall release the pledging Lender from any of its obligations under the Loan Documents and (ii) such trustee shall not be entitled to exercise any of the rights of a Lender under the Loan Documents even though such trustee may have acquired ownership rights with respect to the pledged interest through foreclosure or otherwise. (k) Notwithstanding anything to the contrary contained herein, any Lender Party (a “Granting Lender”) may grant to a special purpose funding vehicle identified as such in writing from time to time by the Granting Lender to the Administrative Agent and ~~BMCA~~ the Borrower (an “SPC”) the option to provide all or any part of any ~~Term Loan~~ Advance that such Granting Lender would otherwise be obligated to make pursuant to this Agreement, provided that (i) nothing herein shall constitute a commitment by any SPC to fund any ~~Term Loan~~ Advance, and (ii) if an SPC elects not to exercise such option or otherwise fails to make all or any part of such ~~Term Loan~~ Advance, the Granting Lender shall be obligated to make such ~~Term Loan~~ Advance pursuant to the terms hereof. The making of an Advance by an SPC hereunder shall utilize the ~~Term Loan~~ Commitment of the Granting Lender to the same extent, and as if, such ~~Term Loan~~ Advance were made by such Granting Lender. Each party hereto hereby agrees that (i) no SPC shall be liable for any indemnity or similar payment obligation under this Agreement for which a Lender Party would be liable, (ii) no SPC shall be entitled to the benefits of Sections ~~2.09~~ 2.10 and ~~2.11~~ 2.12 (or any other increased costs protection provision) and (iii) the Granting ~~Bank~~ Lender shall for all purposes, ~~including~~ including, without limitation, the approval of any amendment or waiver of any provision of any Loan Document, remain the Lender Party of record hereunder. In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior Debt of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency, or liquidation proceeding under the laws of the United States or any State thereof. Notwithstanding anything to the contrary contained in this Agreement, any SPC may (i) with notice to, but without prior consent of, ~~BMCA~~ the Borrower and the Administrative Agent and with the payment of a processing fee of $~~500 and without paying any processing fee therefor~~500, assign all or any portion of its interest in any ~~Term Loan~~ Advance to the Granting Lender and (ii) disclose on a confidential basis any non-public information relating to its funding of ~~Term Loan Advance~~ Advances to any rating agency, commercial paper dealer or provider of any surety or guarantee or credit or liquidity enhancement to such SPC. This subsection (k) may not be amended without the prior written consent of each Granting Lender, all or any part of whose ~~Term Loan~~ Advances are being funded by the SPC at the time of such amendment. (l) Each Lender Party, acting for this purpose as a non-fiduciary agent of the Borrower, that grants a participation other rights to an SPC shall maintain a register on which it enters the name and address of each participant or SPC and the principal and interest amount of each participant’s interest or SPC’s interest in the Facility held by it (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any participant or any information relating to a Participant’s interest in any commitments, advances, 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, Advance, Letter of Credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive, absent manifest error and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.

Appears in 1 contract

Samples: Credit Agreement (Kansas City Southern)

Assignments and Participations. (a) Each Lender may, upon at least five Business Days’ ' notice to such Lender and the Administrative Agent, assign to one or more Eligible Assignees all or a portion of its rights and obligations under this Agreement (~~including~~ including, without limitation, all or a portion of its ~~Term Loan Commitment~~Commitment or Commitments, the ~~Term Loan~~ Advances owing to it and the Note or Notes held by it); provided, however, that (i) each such assignment shall be of a uniform, and not a varying, percentage of all rights and obligations under ~~this Agreement~~and in respect of any or all of the Facilities, (ii) except in the case of an assignment to a Person that, immediately prior to such assignment, was a Lender, an Affiliate of any Lender or an Approved Fund of any Lender or an assignment of all of a Lender’s 's rights and obligations under this Agreement, the aggregate amount of the ~~Term Loan~~ Commitments ~~or Term Loan Advances~~ being assigned to such Eligible Assignee pursuant to such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $~~5,000,000~~ 5 million (or such lesser amount as shall be approved by the Administrative Agent and, so long as no Default shall have occurred and be continuing at the time of effectiveness of such assignment, ~~BMCA~~the Borrower), (iii) each such assignment shall be to an Eligible Assignee, (iv) except in the case of an assignment by a Person that, immediately prior to such assignment, was a Lender, to one of its Affiliates, no such assignments shall be permitted without the consent of the Administrative Agent and, so long as no Default shall have occurred and be continuing at the time of effectiveness of such assignment, ~~BMCA~~ the Borrower (in each case, which consents shall not be unreasonably withheld) and (v) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together 112 with any Note or Notes subject to such assignment and a processing and recordation fee of $3,500. (b) Upon such execution, delivery, acceptance and recording, from and after the effective date specified in such 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, have the rights and obligations of a Lender or Issuing Bank, as the case may be, hereunder and (ii) the Lender or Issuing Bank assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (other than its rights under Sections ~~2.09~~2.10, ~~2.11~~ 2.12 and 8.04 to the extent any claim thereunder relates to an event arising prior to such assignment) and be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all of the remaining portion of an assigning Lender’s 's or Issuing Bank's rights and obligations under this Agreement, such Lender or Issuing Bank shall cease to be a party hereto). (c) By executing and delivering an Assignment and Acceptance, each Lender Party assignor thereunder and each assignee thereunder confirm to and agree with each other and the other parties thereto and hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender Party makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with any Loan Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value of, or the perfection or priority of any lien or security interest created or purported to be created under or in connection with, any Loan Document or any other instrument or document furnished pursuant thereto; (ii) such assigning Lender Party makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party or the performance or observance by any Loan Party of any of its obligations under any Loan Document or any other instrument or document furnished pursuant thereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 4.01 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) such assignee will, independently and without reliance upon any Agent, such assigning Lender Party or any other Lender Party and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) such assignee confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes each Agent to take such action as agent on its behalf and to exercise such powers and discretion under the Loan Documents as are delegated to such Agent by the terms hereof and thereof, together with such powers and discretion as are reasonably incidental thereto; and (vii) such assignee agrees that it will perform in accordance with their terms all of the obligations that by the terms of this Agreement are required to be performed by it as a ~~Lender~~Lender or Issuing Bank, as the case may be. (d) The Administrative Agent acting for this purpose (but only for this purpose) as the agent of the ~~Borrowers~~Borrower, shall maintain at its address referred to in Section 8.02 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 ~~Lenders~~ Lender Parties and the ~~Term Loan~~ Commitment under each Facility of, and principal amount of the ~~Term Loan~~ Advances owing under each Facility to, each Lender Party from time to time (the ~~“Register”~~"REGISTER"). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the ~~Borrowers~~Borrower, the Agents and the ~~Lenders~~ Lender Parties shall treat each Person whose name is recorded in the Register as a Lender Party hereunder for all purposes of this Agreement. The Register shall be available for inspection by the ~~Borrowers~~ Borrower or any Agent or any Lender Party at any reasonable time and from time to time upon reasonable prior notice. (e) Notwithstanding anything to the contrary contained in clause (b) above, the ~~Term Loan~~ Advances (including the Notes evidencing such ~~Term Loan~~ Advances) are registered obligations and the right, title, and interest of the ~~Lenders~~ Lender Parties and their assignees in and to such ~~Term Loan~~ Advances shall be transferable only upon notation of such transfer in the Register. A Note shall only evidence the ~~Lender’s~~ Lender Party's or an assignee’s 's right title and interest in and to the related ~~Term Loan~~ Advance, and in no event is any such Note to be considered a bearer instrument or obligation. This Section 8.07 shall be construed so that the ~~Term Loan~~ Advances are at all times maintained in “"registered form” " within the meaning of sections 163(f), 871(h)(2) and 881(c)(2) of the Internal Revenue Code and any related regulations (or any successor provisions of the Internal Revenue Code or such regulations). Solely for purposes of this and for tax purposes only, the Administrative Agent shall act as ~~each~~ the Borrower’s 's agent for purposes of maintaining such notations of transfer in the Register. (f) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender Party and an assignee, together with any Note or Notes subject to such assignment, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit C hereto, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to ~~BMCA~~ the Borrower and each other Agent. In the case of any assignment by a Lender, within five Business Days after its receipt of such notice, the ~~Borrowers~~Borrower, at ~~their~~ its own expense, shall, if requested by the assignee, execute and deliver to the Administrative Agent in exchange for the surrendered Note or Notes an amended and restated Note (which shall be marked “"Amended and Restated”") to the order of such Eligible Assignee in an amount equal to the ~~Term Loan~~ Commitment assumed by it under each Facility pursuant to such Assignment and Acceptance and, if any assigning Lender has retained a ~~Term Loan~~ Commitment hereunder under such Facility and ~~has~~ has requested a replacement Note, an amended and restated Note to the order of such assigning Lender in an amount equal to the ~~Term Loan~~ Commitment retained by it hereunder. Such amended and restated 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 Assignment and Acceptance and shall otherwise be in substantially the form of Exhibit A hereto. (g) The Issuing Bank may assign to an Eligible Assignee all of its rights and obligations under the undrawn portion of its Letter of Credit Commitment at any time; provided, however, that (i) each such assignment shall be to an Eligible Assignee and (ii) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together with a processing and recordation fee of $3,500. (h) Each Lender Party may sell participations to one or more Persons (other than any Loan Party or any of its Affiliates) in or to all or a portion of its rights and obligations under this Agreement (~~including~~ including, without limitation, all or a portion of its ~~Term Loan~~ Commitments, the ~~Term Loan~~ Advances owing to it and the Note or Notes (if any) held by it); provided, however, that (i) such ~~Lender’s~~ Lender Party's obligations under this Agreement (~~including~~ including, without limitation, its ~~Term Loan~~ Commitments) shall remain unchanged, (ii) such Lender Party shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) such Lender Party shall remain the holder of any such Note for all purposes of this Agreement, (iv) the ~~Borrowers~~Borrower, the Agents and the other ~~Lenders~~ Lender Parties shall continue to deal solely and directly with such Lender Party in connection with such ~~Lender’s~~ Lender Party's rights and obligations under this Agreement and (v) no participant under any such participation shall have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent requires the consent of all ~~Lenders~~Lender Parties. (hi) Any Lender Party may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section 8.07, disclose to the assignee or participant or proposed assignee or participant any information relating to the ~~Borrowers~~ Borrower furnished to such Lender Party by or on behalf of the ~~Borrowers~~Borrower; provided, however, 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 received by it from such Lender Party in accordance with the terms of Section ~~8.09~~8.10. (ij) Notwithstanding any other provision set forth in this Agreement, any Lender Party may at any time create a security interest in all or any portion of its rights under this Agreement (~~including~~ including, without limitation, the ~~Term Loan~~ 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 System. (jk) Notwithstanding anything to the contrary contained herein, any Lender that is a fund that invests in bank loans may create a security interest in all or any portion of the ~~Term Loan~~ Advances owing to it and the Note or Notes held by it to the trustee for holders of obligations owed, or securities issued, by such fund as security for such obligations or securities, provided, that unless and until such trustee actually becomes a Lender in compliance with the other provisions of this Section 8.07, (i) no such pledge shall release the pledging Lender from any of its obligations under the Loan Documents and (ii) such trustee shall not be entitled to exercise any of the rights of a Lender under the Loan Documents even though such trustee may have acquired ownership rights with respect to the pledged interest through foreclosure or otherwise. (kl) Notwithstanding anything to the contrary contained herein, any Lender Party (a ~~“Granting Lender”~~"GRANTING LENDER") may grant to a special purpose funding vehicle identified as such in writing from time to time by the Granting Lender to the Administrative Agent and ~~BMCA~~ the Borrower (an “"SPC”") the option to provide all or any part of any ~~Term Loan~~ Advance that such Granting Lender would otherwise be obligated to make pursuant to this Agreement, provided that (i) nothing herein shall constitute a commitment by any SPC to fund any ~~Term Loan~~ Advance, and (ii) if an SPC elects not to exercise such option or otherwise fails to make all or any part of such ~~Term Loan~~ Advance, the Granting Lender shall be obligated to make such ~~Term Loan~~ Advance pursuant to the terms hereof. The making of an Advance by an SPC hereunder shall utilize the ~~Term Loan~~ Commitment of the Granting Lender to the same extent, and as if, such ~~Term Loan~~ Advance were made by such Granting Lender. Each party hereto hereby agrees that (i) no SPC shall be liable for any indemnity or similar payment obligation under this Agreement for which a Lender Party would be liable, (ii) no SPC shall be entitled to the benefits of Sections ~~2.09~~ 2.10 and ~~2.11~~ 2.12 (or any other increased costs protection provision) and (iii) the Granting Bank shall for all purposes, ~~including~~ including, without limitation, the approval of any amendment or waiver of any provision of any Loan Document, remain the Lender Party of record hereunder. In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior Debt of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency, or liquidation proceeding under the laws of the United States or any State thereof. Notwithstanding anything to the contrary contained in this Agreement, any SPC may (i) with notice to, but without prior consent of, ~~BMCA~~ the Borrower and the Administrative Agent and with the payment of a processing fee of $500 and without paying any processing fee therefor, assign all or any portion of its interest in any ~~Term Loan~~ Advance to the Granting Lender and (ii) disclose on a confidential basis any non-public information relating to its funding of ~~Term Loan Advance~~ Advances to any rating agency, commercial paper dealer or provider of any surety or guarantee or credit or liquidity enhancement to such SPC. This subsection (k) may not be amended without the prior written consent of each Granting Lender, all or any part of whose ~~Term Loan~~ Advances are being funded by the SPC at the time of such amendment.

Appears in 1 contract

Samples: Credit Agreement (Building Materials Corp of America)

Assignments and Participations. (a) Each Lender may, and, if demanded by the Company (following a demand by such Lender pursuant to Section 2.11 or Section 2.14 or a suspension of such Lender's obligation to make or continue Advances as, or convert Advances into, Eurodollar Rate Advances pursuant to Section 2.12) upon at least ~~five Business Days’~~ ten days' notice to such Lender and the ~~Administrative Agent~~Agent will, assign to one or more ~~Eligible Assignees~~ Persons all or a portion of its rights and obligations under this Agreement (~~including~~ including, without limitation, all or a portion of its ~~Term Loan Commitment,~~ Commitment and the ~~Term Loan~~ Revolving Credit Advances owing to ~~it and the Note or Notes held by~~ it); provided, however, that (i) each such assignment shall be of a ~~uniform~~constant, and not a varying, percentage of all rights and obligations under this ~~Agreement~~Agreement (other than any right to make Competitive Bid Advances or Competitive Bid Advances owing to it), (ii) except in the case of an assignment to a Person that, immediately prior to such assignment, was a ~~Lender,~~ Lender or an Affiliate of ~~any Lender or an Approved Fund of any~~ a Lender or an assignment of all of a Lender’s 's rights and obligations under this Agreement, the ~~aggregate~~ amount of the ~~Term Loan Commitments or Term Loan Advances~~ Commitment of the assigning Lender being assigned ~~to such Eligible Assignee~~ pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $5,000,000 (or such lesser amount as shall be approved by the Administrative Agent and, so long as no Default shall have occurred and be continuing at the time of effectiveness of such assignment, BMCA)5,000,000, (iii) each such assignment shall be to an Eligible Assignee, (iv) ~~except in~~ each such assignment made as a result of a demand by the ~~case of~~ Company pursuant to this Section 8.07(a) shall be arranged by the Company after consultation with the Agent and shall be either an assignment of all of the rights and obligations of the assigning Lender under this Agreement or an assignment of a portion of such rights and obligations made concurrently with another such assignment or other such assignments that together cover all of the rights and obligations of the assigning Lender under this Agreement, (v) no Lender shall be obligated to make any such assignment as a result of a demand by ~~a Person that, immediately prior~~ the Company pursuant to this Section 8.07(a) unless and until such Lender shall have received one or more payments from either the Company or one or more Eligible Assignees in an aggregate amount at least equal to the aggregate outstanding principal amount of the Advances owing to such ~~assignment, was a~~ Lender, together with accrued interest thereon to ~~one~~ the date of ~~its Affiliates, no such assignments shall be permitted without the consent of the Administrative Agent and, so long as no Default shall have occurred and be continuing at the time of effectiveness~~ payment of such ~~assignment, BMCA (in each case, which consents shall not be unreasonably withheld)~~ principal amount and all other amounts payable to such Lender under this Agreement and (vvi) the parties to each such assignment shall execute and deliver to the ~~Administrative~~ Agent, for its acceptance and recording in the ~~Register~~Register (as defined in clause (d) below), an Assignment and Acceptance, together with ~~any Note or Notes subject to such assignment and~~ a processing and recordation fee of $3,500~~. (b)~~ . Upon such execution, delivery, acceptance and recording, from and after the effective date specified in ~~such~~ each Assignment and Acceptance, (ix) the assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, have the rights and obligations of a Lender hereunder and (iiy) the Lender assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights ~~(other than its rights under Sections 2.09, 2.11 and 8.04 to the extent any claim thereunder relates to an event arising prior to such assignment)~~ and be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all of or the remaining portion of an assigning Lender’s 's rights and obligations under this Agreement, such Lender shall cease to be a party hereto). (cb) By executing and delivering an Assignment and Acceptance, ~~each~~ the Lender assignor thereunder and ~~each~~ the assignee thereunder confirm to and agree with each other and the other parties ~~thereto and~~ hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with ~~any Loan Document~~ this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value ~~of, or the perfection or priority~~ of ~~any lien or security interest created or purported to be created under or in connection with, any Loan Document~~ this Agreement or any other instrument or document furnished pursuant ~~thereto~~hereto; (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of ~~any Loan Party~~ the Borrower or the performance or observance by ~~any Loan Party~~ the Borrower of any of its obligations under ~~any Loan Document~~ this Agreement or any other instrument or document furnished pursuant ~~thereto~~hereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 4.01 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) such assignee will, independently and without reliance upon ~~any~~ the Agent, such assigning Lender or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) such assignee confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes ~~each~~ the Agent to take such action as agent on its behalf and to exercise such powers and discretion under ~~the Loan Documents~~ this Agreement as are delegated to ~~such~~ the Agent by the terms ~~hereof and thereof~~hereof, together with such powers and discretion as are reasonably incidental thereto; and (vii) such assignee agrees that it will perform in accordance with their terms all of the obligations that by the terms of this Agreement are required to be performed by it as a Lender. (c) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee representing that it is an Eligible Assignee, the Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit B hereto, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the Company. (d) The ~~Administrative~~ Agent ~~acting for this purpose (but only for this purpose) as the agent of the Borrowers,~~ shall maintain at its address referred to in Section 8.02 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 Lenders ~~and~~ and, with respect to the ~~Term Loan~~ Lenders, the Commitment of, and principal amount of the ~~Term Loan~~ 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 ~~Borrowers~~Borrower, the ~~Agents~~ Agent and the Lenders ~~shall~~ 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 Agent~~ Loan Parties or any Lender at any reasonable time and from time to time upon reasonable prior notice. (e) Notwithstanding anything to the contrary contained in clause (b) above, the Term Loan Advances (including the Notes evidencing such Term Loan Advances) are registered obligations and the right, title, and interest of the Lenders and their assignees in and to such Term Loan Advances shall be transferable only upon notation of such transfer in the Register. A Note shall only evidence the Lender’s or an assignee’s right title and interest in and to the related Term Loan Advance, and in no event is any such Note to be considered a bearer instrument or obligation. This Section 8.07 shall be construed so that the Term Loan Advances are at all times maintained in “registered form” within the meaning of sections 163(f), 871(h)(2) and 881(c)(2) of the Internal Revenue Code and any related regulations (or any successor provisions of the Internal Revenue Code or such regulations). Solely for purposes of this and for tax purposes only, the Administrative Agent shall act as each Borrower’s agent for purposes of maintaining such notations of transfer in the Register. (f) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee, together with any Note or Notes subject to such assignment, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit C hereto, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to BMCA and each other Agent. In the case of any assignment by a Lender, within five Business Days after its receipt of such notice, the Borrowers, at their own expense, shall, if requested by the assignee, execute and deliver to the Administrative Agent in exchange for the surrendered Note or Notes an amended and restated Note (which shall be marked “Amended and Restated”) to the order of such Eligible Assignee in an amount equal to the Term Loan Commitment assumed by it under each Facility pursuant to such Assignment and Acceptance and, if any assigning Lender has retained a Term Loan Commitment hereunder under such Facility and has requested a replacement Note, an amended and restated Note to the order of such assigning Lender in an amount equal to the Term Loan Commitment retained by it hereunder. Such amended and restated 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 Assignment and Acceptance and shall otherwise be in substantially the form of Exhibit A hereto. (g) Each Lender may sell participations to one or more Persons (other than any Loan Party or any of its Affiliates) in or to all or a portion of its rights and obligations under this Agreement (including all or a portion of its Term Loan Commitments, the Term Loan Advances owing to it and the Note or Notes (if any) held by it); provided, however, that (i) such Lender’s obligations under this Agreement (including its Term Loan Commitments) shall remain unchanged, (ii) 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, (iv) the Borrowers, the Agents and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and (v) no participant under any such participation shall have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent requires the consent of all Lenders. (h) Any Lender may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section 8.07, disclose to the assignee or participant or proposed assignee or participant any information relating to the Borrowers furnished to such Lender by or on behalf of the Borrowers; provided, however, 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 received by it from such Lender in accordance with the terms of Section 8.09. (i) Notwithstanding any other provision set forth in this Agreement, any Lender may at any time create a security interest in all or any portion of its rights under this Agreement (including the Term Loan 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 System. (j) Notwithstanding anything to the contrary contained herein, any Lender that is a fund that invests in bank loans may create a security interest in all or any portion of the Term Loan Advances owing to it and the Note or Notes held by it to the trustee for holders of obligations owed, or securities issued, by such fund as security for such obligations or securities, provided, that unless and until such trustee actually becomes a Lender in compliance with the other provisions of this Section 8.07, (i) no such pledge shall release the pledging Lender from any of its obligations under the Loan Documents and (ii) such trustee shall not be entitled to exercise any of the rights of a Lender under the Loan Documents even though such trustee may have acquired ownership rights with respect to the pledged interest through foreclosure or otherwise. (k) Notwithstanding anything to the contrary contained herein, any Lender (a “"Granting Lender”") may grant to a special purpose funding vehicle (a "SPC"), identified as such in writing from time to time by the Granting Lender to the ~~Administrative~~ Agent and ~~BMCA (an “SPC”)~~ the Company, the option to provide to the Company all or any part of any ~~Term Loan~~ Advance that such Granting Lender would otherwise be obligated to make to the Company pursuant to this Agreement, ; provided that (i) nothing herein shall constitute a commitment by any SPC to ~~fund~~ make any ~~Term Loan~~ Advance, ~~and~~ (ii) if an SPC elects not to exercise such option or otherwise fails to ~~make~~ provide all or any part of such ~~Term Loan~~ Advance, the Granting Lender shall be obligated to make such ~~Term Loan~~ Advance pursuant to the terms hereof. The making of an Advance by an SPC hereunder shall utilize the ~~Term Loan~~ Commitment of the Granting Lender to the same extent, and as if, such ~~Term Loan~~ Advance were made by such Granting Lender. Each party hereto ~~hereby~~ agrees that ~~(i)~~ no SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which ~~a Lender would be liable, (ii) no SPC~~ shall ~~be entitled to the benefits of Sections 2.09 and 2.11 (or any other increased costs protection provision) and (iii)~~ remain with the Granting ~~Bank shall for all purposes, including the approval of any amendment or waiver of any provision of any Loan Document, remain the Lender of record hereunder~~Lender). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior ~~Debt~~ indebtedness of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, ~~insolvency,~~ insolvency or liquidation ~~proceeding~~ proceedings under the laws of the United States or any State thereof. ~~Notwithstanding~~ In addition, notwithstanding anything to the contrary contained in this ~~Agreement~~Section 8.07(e), any SPC may (i) with notice to, but without the prior written consent of, ~~BMCA~~ the Company and the ~~Administrative~~ Agent ~~and with the payment of a processing fee of $500~~ and without paying any processing fee therefor, assign all or ~~any~~ a portion of its ~~interest~~ interests in any ~~Term Loan Advance~~ Advances to the Granting Lender or to any financial institutions (consented to by the Company and the Agent) providing liquidity and/or credit support to or for the account of any SPC to support the funding or maintenance of Advances and (ii) disclose on a confidential basis any non-public information relating to its ~~funding of Term Loan Advance~~ Advances to any rating agency, commercial paper dealer or provider of any ~~surety or~~ surety, guarantee or credit or liquidity enhancement to such SPC~~. This subsection~~ . (kf) Each Lender may ~~not be amended~~ sell participations to one or more banks or other entities in or to all or a portion of its rights and obligations under this Agreement (including, without ~~the prior written consent of each Granting Lender~~limitation, all or a portion of its Commitment and the Advances owing to it); provided, however, that (i) such Lender's obligations under this Agreement (including, without limitation, its Commitment hereunder) shall remain unchanged, (ii) 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 ~~part~~ promissory note issued or assigned to it hereunder, (iv) the Borrower, the Guarantor, the Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender's rights and obligations under this Agreement and (v) no participant under any such participation shall have any right to approve any amendment or waiver of ~~whose Term Loan Advances are being funded~~ any provision of this Agreement, or any consent to any departure by the ~~SPC at~~ Borrower therefrom, except to the ~~time of~~ extent that such amendment, waiver or consent would reduce the principal of, or interest on, the Advances or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, or postpone any date fixed for any payment of principal of, or interest on, the Advances or any fees or other amounts payable hereunder, in each case to the extent subject to such participation. Any Lender selling a participation shall notify the Agent and the Company promptly after such sale. (g) Any Lender may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section 8.07, disclose to the assignee or participant or proposed assignee or participant any information relating to any Loan Party or the Borrower furnished to such Lender by or on behalf of any Loan Party or the Borrower; provided that, prior to any such disclosure, the assignee or participant or proposed assignee or participant shall agree to preserve the confidentiality of any Confidential Information relating to the Loan Parties or the Borrower received by it from such Lender. (h) Notwithstanding any other provision set forth in this Agreement, any Lender may at any time create a security interest in all or any portion of its rights under this Agreement or any promissory note issued to such Lender hereunder (including, without limitation, the Advances owing to it) in favor of any Federal Reserve Bank in accordance with Regulation A of the Board of Governors of the Federal Reserve System.

Appears in 1 contract

Samples: Revolving Bridge Loan Credit Agreement (Pepsi Bottling Group Inc)

Assignments and Participations. (a) Each Lender ~~may, upon at least five Business Days’ notice to such Lender and the Administrative Agent,~~ may assign to one or more Eligible Assignees all or a portion of its rights and obligations under this Agreement (~~including~~ including, without limitation, all or a portion of its ~~Term Loan Commitment~~Commitment or Commitments, the ~~Term Loan~~ Advances owing to it and the Note or Notes held by it); provided, however, that (i) each such assignment shall be of a uniform, and not a varying, percentage of all rights and obligations under ~~this Agreement~~and in respect of any or all Facilities, (ii) except in the case of an assignment to a Person that, immediately prior to such assignment, was a Lender, an Affiliate of any Lender or an Approved Fund of any Lender or an assignment of all of a Lender’s 's rights and obligations under this Agreement, the aggregate amount of the ~~Term Loan~~ Commitments ~~or Term Loan Advances~~ being assigned to such Eligible Assignee pursuant to such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $~~5,000,000~~ 1,000,000 and shall be an integral multiple of $250,000 in excess thereof (or or, in each case, such lesser amount as shall be approved by the Administrative Agent and, so long as no Event of Default shall have occurred and be continuing at the time of effectiveness of such assignment, ~~BMCA)~~the US Borrower) under each Facility for which a Commitment is being assigned, (iii) each such assignment shall be to an Eligible Assignee, (iv) ~~except in the case of an assignment by a Person that, immediately prior to such assignment, was a Lender, to one of its Affiliates,~~ no such assignments shall be permitted without the consent of the Administrative Agent ~~and, so long as no Default~~ until the Administrative Agent shall have ~~occurred and be continuing at~~ notified the ~~time~~ Lender Parties that syndication of ~~effectiveness of such assignment~~the Commitments hereunder has been completed, ~~BMCA (in each case, which consents shall not be unreasonably withheld) and~~ (v) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together with any Note or Notes subject to such assignment and a processing and recordation fee of $3,500, and (vi) each such Eligible Assignee shall comply with the requirements of Section 2.13(e), if applicable. For greater certainty, an assignment of a Commitment, Advance and/or a Note will not constitute a repayment, discharge, rescission, extinguishment or novation of that Commitment, Advance or Note and the Obligation so assigned shall continue to be the same Obligation and not a new Obligation. (b) Upon such execution, delivery, acceptance and recording, from and after the effective date specified in such 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, have the rights and obligations of a Lender or Issuing Bank, as the case may be, hereunder and (ii) the Lender or Issuing Bank assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (other than its rights under Sections ~~2.09~~2.11, ~~2.11~~ 2.13 and 8.04 to the extent any claim thereunder relates to an event arising prior to such assignment) and be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all of the remaining portion of an assigning Lender’s 's or Issuing Bank's rights and obligations under this Agreement, such Lender or Issuing Bank shall cease to be a party hereto). (c) By executing and delivering an Assignment and Acceptance, each Lender Party assignor thereunder and each assignee thereunder confirm to and agree with each other and the other parties thereto and hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender Party makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with any Loan Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value of, or the perfection or priority of any lien or security interest created or purported to be created under or in connection with, any Loan Document or any other instrument or document furnished pursuant thereto; (ii) such assigning Lender Party makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party or the performance or observance by any Loan Party of any of its obligations under any Loan Document or any other instrument or document furnished pursuant thereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 4.01 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) such assignee will, independently and without reliance upon any Agent, such assigning Lender Party or any other Lender Party and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) such assignee confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes each Agent to take such action as agent on its behalf and to exercise such powers and discretion under the Loan Documents as are delegated to such Agent by the terms hereof and thereof, together with such powers and discretion as are reasonably incidental thereto; and (vii) such assignee agrees that it will perform in accordance with their terms all of the obligations that by the terms of this Agreement are required to be performed by it as a ~~Lender~~Lender or Issuing Bank, as the case may be. (d) The Administrative ~~Agent~~ Agent, acting for this purpose (but only for this purpose) as the agent of the Borrowers, shall maintain at its address referred to in Section 8.02 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 ~~Lenders~~ Lender Parties and the ~~Term Loan~~ Commitment under each Facility of, and principal amount of the ~~Term Loan~~ Advances owing under each Facility to, each Lender Party from time to time (the ~~“Register”~~"REGISTER"). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrowers, the Agents and the ~~Lenders~~ Lender Parties shall treat each Person whose name is recorded in the Register as a Lender Party hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrowers or any Agent or any Lender Party at any reasonable time and from time to time upon reasonable prior notice. (e) Notwithstanding anything to the contrary contained in clause (b) above, the Term Loan Advances (including the Notes evidencing such Term Loan Advances) are registered obligations and the right, title, and interest of the Lenders and their assignees in and to such Term Loan Advances shall be transferable only upon notation of such transfer in the Register. A Note shall only evidence the Lender’s or an assignee’s right title and interest in and to the related Term Loan Advance, and in no event is any such Note to be considered a bearer instrument or obligation. This Section 8.07 shall be construed so that the Term Loan Advances are at all times maintained in “registered form” within the meaning of sections 163(f), 871(h)(2) and 881(c)(2) of the Internal Revenue Code and any related regulations (or any successor provisions of the Internal Revenue Code or such regulations). Solely for purposes of this and for tax purposes only, the Administrative Agent shall act as each Borrower’s agent for purposes of maintaining such notations of transfer in the Register. (f) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender Party and an assignee, together with any Note or Notes subject to such assignment, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit C D hereto, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to ~~BMCA~~ the US Borrower and each other Agent. In the case of any assignment by a Lender, within five Business Days after its receipt of such notice, the ~~Borrowers~~applicable Borrower, at ~~their~~ its own expense, ~~shall, if requested by the assignee,~~ shall execute and deliver to the Administrative Agent in exchange for the surrendered Note or ~~Notes~~ Notes, if any, (which shall be marked "Cancelled") an amended and restated Note ~~(which shall be marked “Amended and Restated”)~~ to the order of such Eligible ~~Assignee~~ Assignee, if requested by such Eligible Assignee, in an amount equal to the ~~Term Loan~~ Commitment assumed by it under each Facility pursuant to such Assignment and Acceptance and, if any assigning Lender has retained a ~~Term Loan~~ Commitment hereunder under such ~~Facility and has requested a replacement Note~~Facility, an amended and restated Note to the order of such assigning ~~Lender~~ Lender, if requested by such assigning Lender, in an amount equal to the ~~Term Loan~~ Commitment retained by it hereunder. Such amended and restated Note or ~~Notes~~ Notes, if any, shall be in an aggregate principal amount equal to the aggregate principal amount of such surrendered Note or Notes, if any, shall be dated the effective date of such Assignment and Acceptance and shall otherwise be in substantially the form of Exhibit A X-0, X-0, X-0 or A-4 hereto, as the case may be. (f) Each Issuing Bank may assign to one or more Eligible Assignees all or a portion of its rights and obligations under the undrawn portion of its Letter of Credit Commitment at any time; provided, however, that (i) except in the case of an assignment to a Person that immediately prior to such assignment was an Issuing Bank or an assignment of all of an Issuing Bank's rights and obligations under this Agreement, the amount of the Letter of Credit Commitment of the assigning Issuing Bank being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $1,000,000 and shall be in an integral multiple of $1,000,000 in excess thereof, (ii) each such assignment shall be to an Eligible Assignee and (iii) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together with a processing and recordation fee of $3,500. 113 (g) Each Lender Party may sell participations to one or more Persons (other than any Loan Party or any of its ~~Affiliates~~Affiliates or any other Person who is or whose Affiliates are primarily engaged in the transportation industry and is a direct competitor of any Loan Party) in or to all or a portion of its rights and obligations under this Agreement (~~including~~ including, without limitation, all or a portion of its ~~Term Loan~~ Commitments, the ~~Term Loan~~ Advances owing to it and the Note or Notes (if any) held by it); provided, however, that (i) such ~~Lender’s~~ Lender Party's obligations under this Agreement (~~including~~ including, without limitation, its ~~Term Loan~~ Commitments) shall remain unchanged, (ii) such Lender Party shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) such Lender Party shall remain the holder of any such Note for all purposes of this Agreement, (iv) the Borrowers, the Agents and the other ~~Lenders~~ Lender Parties shall continue to deal solely and directly with such Lender Party in connection with such ~~Lender’s~~ Lender Party's rights and obligations under this Agreement and (v) no participant under any such participation shall have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent ~~requires~~ would reduce the ~~consent~~ principal of, or interest on, the Notes or the Advances or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, postpone any date fixed for any payment of ~~all Lenders~~principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation. (h) Any Lender Party may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section 8.07, disclose to the assignee or participant or proposed assignee or participant any information relating to the Borrowers furnished to such Lender Party by or on behalf of ~~the Borrowers~~any Borrower; provided, however, 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 received by it from such Lender ~~in accordance with the terms of Section 8.09~~Party. (i) Notwithstanding any other provision set forth in this Agreement, any Lender Party may at any time create a security interest in all or any portion of its rights under this Agreement (~~including~~ including, without limitation, the ~~Term Loan~~ 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 System. (j) Notwithstanding anything to the contrary contained herein, any Lender that is a fund that invests in bank loans ~~may~~ may, without the consent of the Borrowers or the Administrative Agent, create a security interest in all or any portion of the ~~Term Loan~~ Advances owing to it and the Note or Notes held by it to the trustee for holders of obligations owed, or securities issued, by such fund as security for such obligations or securities, provided, that unless and until such trustee actually becomes a Lender in compliance with the other provisions of this Section 8.07, (i) no such pledge shall release the pledging Lender from any of its obligations under the Loan Documents and (ii) such trustee shall not be entitled to exercise any of the rights of a Lender under the Loan Documents even though such trustee may have acquired ownership rights with respect to the pledged interest through foreclosure or otherwise. (k) Notwithstanding anything to the contrary contained herein, any Lender Party (a ~~“Granting Lender”~~"GRANTING LENDER") may grant to a special purpose funding vehicle identified as such in writing from time to time by the Granting Lender to the Administrative Agent and ~~BMCA~~ the US Borrower (an “"SPC”") the option to provide all or any part of any ~~Term Loan~~ Advance that such Granting Lender would otherwise be obligated to make pursuant to this Agreement; provided, ~~provided~~ that (i) nothing herein shall constitute a commitment by any SPC to fund any ~~Term Loan~~ Advance, and (ii) if an SPC elects not to exercise such option or otherwise fails to make all or any part of such ~~Term Loan~~ Advance, the Granting Lender shall be obligated to make such ~~Term Loan~~ Advance pursuant to the terms hereof. The making of an Advance by an SPC hereunder shall utilize the ~~Term Loan~~ Commitment of the Granting Lender to the same extent, and as if, such ~~Term Loan~~ Advance were made by such Granting Lender. Each party hereto hereby agrees that (i) no SPC shall be liable for any indemnity or similar payment obligation under this Agreement for which a Lender Party would be liable provided such Granting Lender remains liable, (ii) no SPC shall be entitled to the benefits of Sections ~~2.09~~ 2.11 and ~~2.11~~ 2.13 (or any other increased costs protection provision) and (iii) the Granting ~~Bank~~ Lender shall for all purposes, ~~including~~ including, without limitation, the approval of any amendment or waiver of any provision of any Loan Document, remain the Lender Party of record hereunder. In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior Debt of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency, or liquidation proceeding under the laws of the United States or any State thereof. Notwithstanding anything to the contrary contained in this Agreement, any SPC may (i) with notice to, but without prior consent of, ~~BMCA~~ the Borrowers and the Administrative Agent and with the payment of a processing fee of $500 ~~and without paying any processing fee therefor~~to the Administrative Agent, assign all or any portion of its interest in any ~~Term Loan~~ Advance to the Granting Lender and (ii) disclose on a confidential basis any non-public information relating to its funding of ~~Term Loan Advance~~ Advances to any rating agency, commercial paper dealer or provider of any surety or guarantee or credit or liquidity enhancement to such SPC. This subsection (k) may not be amended without the prior written consent of each Granting Lender, all or any part of whose ~~Term Loan~~ Advances are being funded by the SPC at the time of such amendment.

Appears in 1 contract

Samples: Credit Agreement (Laidlaw International Inc)

Assignments and Participations. (a) Each Lender ~~may, upon at least five Business Days’ notice to such Lender and the Administrative Agent,~~ may assign to one or more Eligible Assignees all or a portion of its rights and obligations under this Agreement (~~including~~ including, without limitation, all or a portion of its ~~Term Loan Commitment~~Commitment or Commitments, the ~~Term Loan~~ Advances owing to it and the Note or Notes held by it); provided, however, that (i) each such assignment shall be of a uniform, and not a varying, percentage of all rights and obligations under ~~this Agreement~~and in respect of one or more of the Facilities, (ii) except in the case of an assignment to a Person that, immediately prior to such assignment, was a Lender, an Affiliate of any Lender or ~~an Approved~~ a Fund Affiliate of any Lender or an assignment of all of a Lender’s rights and obligations under this Agreement, the aggregate amount of the ~~Term Loan~~ Commitments ~~or Term Loan Advances~~ being assigned to such Eligible Assignee pursuant to such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $5,000,000 under each Facility or an integral multiple of $1,000,000 in excess thereof (or such lesser amount as shall be approved by the Administrative Agent and, so long as no Default shall have occurred and be continuing at the time of effectiveness of such assignment, ~~BMCA~~the Borrower), (iii) each such assignment shall be to an Eligible Assignee, (iv) ~~except in the case of an assignment by a Person that, immediately prior to such assignment, was a Lender, to one of its Affiliates,~~ no such assignments shall be permitted (A) until the Administrative Agent shall have notified the Lender Parties that syndication of the Commitments hereunder has been completed, without the consent of the Administrative Agent, and (B) at any other time without the consent of the Administrative Agent ~~and, so long as no Default shall have occurred and be continuing at the time of effectiveness of such assignment, BMCA~~ (~~in each case,~~ which ~~consents~~ consent shall not be unreasonably withheld) and (v) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together with any Note or Notes subject to such assignment ~~and~~ and, except if such assignment is being made by a Lender to an Affiliate or Fund Affiliate of such Lender, a processing and recordation fee of $3,500. (b) Upon such execution, delivery, acceptance and recording, from and after the effective date specified in such 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, have the rights and obligations of a Lender or Issuing Bank, as the case may be, hereunder and (ii) the Lender or Issuing Bank assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (other than its rights under Sections ~~2.09~~2.10, ~~2.11~~ 2.12, 7.06, 8.05 and ~~8.04~~ 9.04 to the extent any claim thereunder relates to an event arising prior to such assignment) and be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all of the remaining portion of an assigning Lender’s or Issuing Bank’s rights and obligations under this Agreement, such Lender or Issuing Bank shall cease to be a party hereto). (c) By executing and delivering an Assignment and Acceptance, each Lender Party assignor thereunder and each assignee thereunder confirm to and agree with each other and the other parties thereto and hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender Party makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with any Loan Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value of, or the perfection or priority of any lien or security interest created or purported to be created under or in connection with, any Loan Document or any other instrument or document furnished pursuant thereto; (ii) such assigning Lender Party makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party or the performance or observance by any Loan Party of any of its obligations under any Loan Document or any other instrument or document furnished pursuant thereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 4.01 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) such assignee will, independently and without reliance upon ~~any~~ the Administrative Agent, such assigning Lender Party or any other Lender Party and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) such assignee confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes ~~each~~ the Administrative Agent to take such action as agent on its behalf and to exercise such powers and discretion under the Loan Documents as are delegated to ~~such~~ the Administrative Agent by the terms hereof and thereof, together with such powers and discretion as are reasonably incidental thereto; and (vii) such assignee agrees that it will perform in accordance with their terms all of the obligations that by the terms of this Agreement are required to be performed by it as a ~~Lender~~Lender or Issuing Bank, as the case may be. (d) The Administrative Agent ~~acting for this purpose (but only for this purpose) as the agent~~ on behalf of ~~the Borrowers,~~ Borrower shall maintain at its address referred to in Section ~~8.02~~ 9.02 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 ~~Lenders~~ Lender Parties and the ~~Term Loan~~ Commitment under each Facility of, and principal amount of the ~~Term Loan~~ Advances owing under each Facility to, each Lender Party from time to time (the “Register”). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the ~~Borrowers~~Borrower, the ~~Agents~~ Administrative Agent and the ~~Lenders shall~~ Lender Parties may treat each Person whose name is recorded in the Register as a Lender Party hereunder for all purposes of this Agreement. The Register shall be available for inspection by the ~~Borrowers~~ Borrower or ~~any~~ the Administrative Agent or any Lender Party at any reasonable time and from time to time upon reasonable prior notice. (e) Notwithstanding anything to the contrary contained in clause (b) above, the Term Loan Advances (including the Notes evidencing such Term Loan Advances) are registered obligations and the right, title, and interest of the Lenders and their assignees in and to such Term Loan Advances shall be transferable only upon notation of such transfer in the Register. A Note shall only evidence the Lender’s or an assignee’s right title and interest in and to the related Term Loan Advance, and in no event is any such Note to be considered a bearer instrument or obligation. This Section 8.07 shall be construed so that the Term Loan Advances are at all times maintained in “registered form” within the meaning of sections 163(f), 871(h)(2) and 881(c)(2) of the Internal Revenue Code and any related regulations (or any successor provisions of the Internal Revenue Code or such regulations). Solely for purposes of this and for tax purposes only, the Administrative Agent shall act as each Borrower’s agent for purposes of maintaining such notations of transfer in the Register. (f) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender Party and an assignee, together with any Note or Notes subject to such assignment, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit C D hereto, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to ~~BMCA~~ the Borrower and each other Agent. In the case of any assignment by a Lender, within five Business Days after its receipt of such notice, the ~~Borrowers~~Borrower, at ~~their~~ its own expense, shall, if requested by the ~~assignee~~applicable Lender, execute and deliver to the Administrative Agent in exchange for the surrendered Note or Notes ~~an amended and restated~~ a new Note ~~(which shall be marked “Amended and Restated”)~~ to the order of such Eligible Assignee in an amount equal to the ~~Term Loan~~ Commitment assumed by it under each Facility pursuant to such Assignment and Acceptance and, if any assigning Lender has retained a ~~Term Loan~~ Commitment hereunder under such ~~Facility and has requested~~ Facility, a ~~replacement Note, an amended and restated~~ new Note to the order of such assigning Lender in an amount equal to the ~~Term Loan~~ Commitment retained by it hereunder. Such ~~amended and restated~~ new Note or ~~Notes~~ Notes, if any, shall be in an aggregate principal amount equal to the aggregate principal amount of such surrendered Note or Notes, shall be dated the effective date of such Assignment and Acceptance and shall otherwise be in substantially the form of Exhibit A hereto. (f) Each Issuing Bank may assign to one or more Eligible Assignees all or a portion of its rights and obligations under the undrawn portion of its Letter of Credit Commitment at any time; provided, however, that (i) except in the case of an assignment to a Person that immediately prior to such assignment was an Issuing Bank or an assignment of all of an Issuing Bank’s rights and obligations under this Agreement, the amount of the Letter of Credit Commitment of the assigning Issuing Bank being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $10,000,000 and shall be in an integral multiple of $1,000,000 in excess thereof, (ii) each such assignment shall be to an Eligible Assignee and (iii) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together with a processing and recordation fee of $3,500, provided that such fee shall not be payable if the assigning Issuing Bank is making such assignment simultaneously with the assignment in its capacity as a Lender of all or a portion of its Revolving Credit Commitment to the same Eligible Assignee. (g) Each Lender Party may sell participations to one or more Persons (other than any Loan Party or any of its Affiliates) in or to all or a portion of its rights and obligations under this Agreement (~~including~~ including, without limitation, all or a portion of its ~~Term Loan~~ Commitments, the ~~Term Loan~~ Advances owing to it and the Note or Notes (if any) held by it); provided, however, that (i) such ~~Lender~~Lender Party’s obligations under this Agreement (~~including~~ including, without limitation, its ~~Term Loan~~ Commitments) shall remain unchanged, (ii) such Lender Party shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) such Lender Party shall remain the holder of any such Note for all purposes of this Agreement, (iv) the ~~Borrowers~~Borrower, the ~~Agents~~ Administrative Agent and the other ~~Lenders~~ Lender Parties shall continue to deal solely and directly with such Lender Party in connection with such ~~Lender~~Lender Party’s rights and obligations under this ~~Agreement and~~ Agreement, (v) no participant under any such participation shall have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent ~~requires~~ would reduce the ~~consent~~ principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, or postpone any date fixed for any payment of ~~all Lenders~~principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, and (vi) if, at the time of such sale, such Lender Party was entitled to payments under Section 2.12(a) in respect of United States withholding tax with respect to interest paid at such date, then, to such extent, the term Taxes shall include (in addition to withholding taxes that may be imposed in the future or other amounts otherwise includable in Taxes) United States withholding tax, if any, applicable with respect to such participant on such date, provided that such participant complies with the requirements of Section 2.12(e) as if it were a Lender. (h) Any Lender Party may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section ~~8.07~~9.07, disclose to the assignee or participant or proposed assignee or participant any information relating to the ~~Borrowers~~ Borrower furnished to such Lender Party by or on behalf of the ~~Borrowers~~Borrower; provided, however, 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 received by it from such Lender ~~in accordance with the terms of Section 8.09~~Party. (i) Notwithstanding any other provision set forth in this Agreement, any Lender Party may at any time create a security interest in all or any portion of its rights under this Agreement (~~including~~ including, without limitation, the ~~Term Loan~~ 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 System. (j) Notwithstanding anything to the contrary contained herein, any Lender that is a fund that invests in bank loans may create a security interest in all or any portion of the Term Loan Advances owing to it and the Note or Notes held by it to the trustee for holders of obligations owed, or securities issued, by such fund as security for such obligations or securities, provided, that unless and until such trustee actually becomes a Lender in compliance with the other provisions of this Section 8.07, (i) no such pledge shall release the pledging Lender from any of its obligations under the Loan Documents and (ii) such trustee shall not be entitled to exercise any of the rights of a Lender under the Loan Documents even though such trustee may have acquired ownership rights with respect to the pledged interest through foreclosure or otherwise. (k) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Lender”) may grant to a special purpose funding vehicle identified as such in writing from time to time by the Granting Lender to the Administrative Agent and BMCA (an “SPC”) the option to provide all or any part of any Term Loan Advance that such Granting Lender would otherwise be obligated to make pursuant to this Agreement, provided that (i) nothing herein shall constitute a commitment by any SPC to fund any Term Loan Advance, and (ii) if an SPC elects not to exercise such option or otherwise fails to make all or any part of such Term Loan Advance, the Granting Lender shall be obligated to make such Term Loan Advance pursuant to the terms hereof. The making of an Advance by an SPC hereunder shall utilize the Term Loan Commitment of the Granting Lender to the same extent, and as if, such Term Loan Advance were made by such Granting Lender. Each party hereto hereby agrees that (i) no SPC shall be liable for any indemnity or similar payment obligation under this Agreement for which a Lender would be liable, (ii) no SPC shall be entitled to the benefits of Sections 2.09 and 2.11 (or any other increased costs protection provision) and (iii) the Granting Bank shall for all purposes, including the approval of any amendment or waiver of any provision of any Loan Document, remain the Lender of record hereunder. In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior Debt of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency, or liquidation proceeding under the laws of the United States or any State thereof. Notwithstanding anything to the contrary contained in this Agreement, any SPC may (i) with notice to, but without prior consent of, BMCA and the Administrative Agent and with the payment of a processing fee of $500 and without paying any processing fee therefor, assign all or any portion of its interest in any Term Loan Advance to the Granting Lender and (ii) disclose on a confidential basis any non-public information relating to its funding of Term Loan Advance to any rating agency, commercial paper dealer or provider of any surety or guarantee or credit or liquidity enhancement to such SPC. This subsection (k) may not be amended without the prior written consent of each Granting Lender, all or any part of whose Term Loan Advances are being funded by the SPC at the time of such amendment.

Appears in 1 contract

Samples: Revolving Credit Agreement (Digital Realty Trust, Inc.)

Assignments and Participations. (a) Each Lender ~~may~~may (and, so long as no Default shall have occurred and be continuing, if demanded by the Borrower (following a demand by such Lender pursuant to Section 2.10 or 2.12 or if such Lender shall be a Defaulting Lender) upon at least ~~five~~ 5 Business Days’ ' notice to such Lender and the Administrative Agent, will) assign to one or more Eligible Assignees all or a portion of its rights and obligations under this Agreement and the other Loan Documents (~~including~~ including, without limitation, all or a portion of its ~~Term Loan Commitment~~Commitment or Commitments, the ~~Term Loan~~ Advances owing to it and the Note or Notes held by it); provided, however, that (i) each such assignment shall be of a uniform, and not a varying, percentage of all rights and obligations under ~~this Agreement~~and in respect of one or more Facilities, (ii) except in the case of an assignment to a Person that, immediately prior to such assignment, was a ~~Lender, an Affiliate of any Lender or an Approved Fund of any~~ Lender or an assignment of all of a Lender’s 's rights and obligations under this Agreement, the ~~aggregate~~ amount of the ~~Term Loan~~ Commitment or Commitments ~~or Term Loan Advances~~ of the assigning Lender being assigned ~~to such Eligible Assignee~~ pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $5,000,000 (or such lesser amount as shall be approved by the Administrative Agent and, so long as no Default shall have occurred and be continuing at the time of effectiveness of such assignment, BMCA)5,000,000, (iii) each such assignment shall be to an Eligible Assignee, (iv) ~~except in~~ each such assignment made as a result of a demand by the ~~case of an assignment by a Person that, immediately prior~~ Borrower pursuant to ~~such assignment, was a Lender, to one of its Affiliates, no such assignments~~ this Section 8.07(a) shall be ~~permitted without~~ arranged by the ~~consent of~~ Borrower after consultation with the Administrative Agent ~~and~~and shall be either an assignment of all of the rights and obligations of the assigning Lender under this Agreement and the other Loan Documents or an assignment of a portion of such rights and obligations made concurrently with another such assignment or other such assignments that together cover all of the rights and obligations of the assigning Lender under this Agreement and the other Loan Documents, ~~so long~~ (v) no Lender shall be obligated to make any such assignment as ~~no Default~~ a result of a demand by the Borrower pursuant to this Section 8.07(a) unless and until such Lender shall have ~~occurred and be continuing~~ received one or more payments from either the Borrower or one or more Eligible Assignees in an aggregate amount at least equal to the ~~time~~ aggregate outstanding principal amount of ~~effectiveness~~ the Advances owing to such Lender, together with accrued interest thereon to the date of payment of such ~~assignment~~principal amount and all other amounts payable to such Lender under this Agreement, ~~BMCA (in each case, which consents shall not be unreasonably withheld)~~ and (vvi) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together with any Note or Notes subject to such assignment and a processing and recordation fee of $~~3,500~~1,500 for each Assignment and Acceptance between a Lender and one of its Affiliates or another Lender or $3,000 for each other Assignment and Acceptance, provided, however, that for each such assignment made as a result of a demand by the Borrower pursuant to this Section 8.07(a), the Borrower shall pay to the Administrative Agent the applicable processing and recordation fee. (b) Upon such execution, delivery, acceptance and recording, from and after the effective date specified in such Assignment and Acceptance, (ix) the assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, have the rights and obligations of a Lender or Issuing Bank, as the case may be, hereunder and (iiy) the Lender or Issuing Bank assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (other than its rights under Sections ~~2.09~~2.10, ~~2.11~~ 2.12 and 8.04 to the extent any claim thereunder relates to an event arising prior to such assignment) and be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all of or the remaining portion of an assigning Lender’s 's or Issuing Bank's rights and obligations under this Agreement, such Lender or Issuing Bank shall cease to be a party hereto). (c) By executing and delivering an Assignment and Acceptance, ~~each~~ the Lender Party assignor thereunder and ~~each~~ the assignee thereunder confirm to and agree with each other and the other parties ~~thereto and~~ hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender Party makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or any other Loan Document or any other instrument or document furnished pursuant hereto or thereto or the execution, legality, validity, enforceability, genuineness, sufficiency or value of, or the perfection or priority of any lien or security interest created or purported to be created under or in connection with, this Agreement or any other Loan Document or any other instrument or document furnished pursuant hereto or thereto; (ii) such assigning Lender Party makes no representation or warranty and assumes no responsibility with respect to the financial condition of the Borrower or any other Loan Party or the performance or observance by any Loan Party of any of its obligations under any Loan Document or any other instrument or document furnished pursuant thereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 4.01 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) such assignee will, independently and without reliance upon any Agent, such assigning Lender Party or any other Lender Party and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) such assignee confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes each Agent to take such action as agent on its behalf and to exercise such powers and discretion under the Loan Documents as are delegated to such Agent by the terms ~~hereof and thereof~~hereof, together with such powers and discretion as are reasonably incidental thereto; and (vii) such assignee agrees that it will perform in accordance with their terms all of the obligations ~~that~~ which by the terms of this Agreement are required to be performed by it as a ~~Lender~~Lender or Issuing Bank, as the case may be. (d) The Administrative ~~Agent~~ Agent, acting for this purpose (but only for this purpose) as the agent of the ~~Borrowers~~Borrower, shall maintain at its address referred to in Section 8.02 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 ~~Lenders~~ Lender Parties and the ~~Term Loan~~ Commitment under each Facility of, and principal amount of the ~~Term Loan~~ Advances owing under each Facility to, each Lender Party from time to time (the “"Register”"). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the ~~Borrowers~~Borrower, the Agents and the ~~Lenders~~ Lender Parties shall treat each Person whose name is recorded in the Register as a Lender Party hereunder for all purposes of this Agreement. The Register shall be available for inspection by the ~~Borrowers or any Agent~~ Borrower or any Lender Party at any reasonable time and from time to time upon reasonable prior notice. (e) Notwithstanding anything to the contrary contained in clause (b) above, the Term Loan Advances (including the Notes evidencing such Term Loan Advances) are registered obligations and the right, title, and interest of the Lenders and their assignees in and to such Term Loan Advances shall be transferable only upon notation of such transfer in the Register. A Note shall only evidence the Lender’s or an assignee’s right title and interest in and to the related Term Loan Advance, and in no event is any such Note to be considered a bearer instrument or obligation. This Section 8.07 shall be construed so that the Term Loan Advances are at all times maintained in “registered form” within the meaning of sections 163(f), 871(h)(2) and 881(c)(2) of the Internal Revenue Code and any related regulations (or any successor provisions of the Internal Revenue Code or such regulations). Solely for purposes of this and for tax purposes only, the Administrative Agent shall act as each Borrower’s agent for purposes of maintaining such notations of transfer in the Register. (f) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender Party and an assignee, together with any Note or Notes subject to such assignment, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit C hereto, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to ~~BMCA~~ the Borrower and ~~each~~ the other ~~Agent~~Agents. In the case of any assignment by a Lender, within five Business Days after its receipt of such notice, the ~~Borrowers~~Borrower, at ~~their~~ its own expense, ~~shall, if requested by the assignee,~~ shall execute and deliver to the Administrative Agent in exchange for the surrendered Note or Notes ~~an amended and restated~~ a new Note ~~(which shall be marked “Amended and Restated”)~~ to the order of such Eligible Assignee in an amount equal to the ~~Term Loan~~ Commitment assumed by it under ~~each~~ a Facility pursuant to such Assignment and Acceptance and, if ~~any~~ the assigning Lender has retained a ~~Term Loan~~ Commitment hereunder under such ~~Facility and has requested~~ Facility, a ~~replacement Note, an amended and restated~~ new Note to the order of ~~such~~ the assigning Lender in an amount equal to the ~~Term Loan~~ Commitment retained by it hereunder. Such ~~amended and restated~~ 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 Assignment and Acceptance and shall otherwise be in substantially the form of Exhibit A X-0, X-0, X-0 or A-4 hereto, as the case may be. (f) Each Issuing Bank may assign to one or more Eligible Assignees all or a portion of its rights and obligations under the undrawn portion of its Letter of Credit Commitment at any time; provided, however, that (i) except in the case of an assignment to a Person that immediately prior to such assignment was an Issuing Bank or an assignment of all of an Issuing Bank's rights and obligations under this Agreement, the amount of the Letter of Credit Commitment of the assigning Issuing Bank being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $5,000,000 and shall be in an integral multiple of $1,000,000 in excess thereof, (ii) each such assignment shall be to an Eligible Assignee and (iii) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together with a processing and recordation fee of $3,000. (g) Each Lender Party may sell participations to one or more Persons (other than any Loan Party or any of its Affiliates) in or to all or a portion of its rights and obligations under this Agreement (~~including~~ including, without limitation, all or a portion of its ~~Term Loan~~ Commitments, the ~~Term Loan~~ Advances owing to it and the Note or Notes (if any) held by it); provided, however, that (i) such ~~Lender’s~~ Lender Party's obligations under this Agreement (~~including~~ including, without limitation, its ~~Term Loan~~ Commitments) shall remain unchanged, (ii) such Lender Party shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) such Lender Party shall remain the holder of any such Note for all purposes of this Agreement, (iv) the ~~Borrowers~~Borrower, the ~~Agents~~ Administrative Agent and the other ~~Lenders~~ Lender Parties shall continue to deal solely and directly with such Lender Party in connection with such ~~Lender’s~~ Lender Party's rights and obligations under this Agreement and (v) no participant under any such participation shall have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent ~~requires~~ would reduce the ~~consent~~ principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, postpone any date fixed for any payment of principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, release any Guarantor or Guarantors to the extent that such release would have the effect of releasing all ~~Lenders~~or substantially all of the Collateral, or release all or substantially all of the Collateral. (h) Any Lender Party may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section 8.07, disclose to the assignee or participant or proposed assignee or ~~participant~~ participant, any information relating to the ~~Borrowers~~ Borrower furnished to such Lender Party by or on behalf of the ~~Borrowers~~Borrower; provided, however, 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 received by it from such Lender ~~in accordance with the terms of Section 8.09~~Party. (i) Notwithstanding any other provision set forth in this Agreement, any Lender Party may at any time create a security interest in all or any portion of its rights under this Agreement (~~including~~ including, without limitation, the ~~Term Loan~~ 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 System. (j) Notwithstanding anything to the contrary contained herein, any Lender that is a fund that invests in bank loans may create a security interest in all or any portion of the Term Loan Advances owing to it and the Note or Notes held by it to the trustee for holders of obligations owed, or securities issued, by such fund as security for such obligations or securities, provided, that unless and until such trustee actually becomes a Lender in compliance with the other provisions of this Section 8.07, (i) no such pledge shall release the pledging Lender from any of its obligations under the Loan Documents and (ii) such trustee shall not be entitled to exercise any of the rights of a Lender under the Loan Documents even though such trustee may have acquired ownership rights with respect to the pledged interest through foreclosure or otherwise. (k) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Lender”) may grant to a special purpose funding vehicle identified as such in writing from time to time by the Granting Lender to the Administrative Agent and BMCA (an “SPC”) the option to provide all or any part of any Term Loan Advance that such Granting Lender would otherwise be obligated to make pursuant to this Agreement, provided that (i) nothing herein shall constitute a commitment by any SPC to fund any Term Loan Advance, and (ii) if an SPC elects not to exercise such option or otherwise fails to make all or any part of such Term Loan Advance, the Granting Lender shall be obligated to make such Term Loan Advance pursuant to the terms hereof. The making of an Advance by an SPC hereunder shall utilize the Term Loan Commitment of the Granting Lender to the same extent, and as if, such Term Loan Advance were made by such Granting Lender. Each party hereto hereby agrees that (i) no SPC shall be liable for any indemnity or similar payment obligation under this Agreement for which a Lender would be liable, (ii) no SPC shall be entitled to the benefits of Sections 2.09 and 2.11 (or any other increased costs protection provision) and (iii) the Granting Bank shall for all purposes, including the approval of any amendment or waiver of any provision of any Loan Document, remain the Lender of record hereunder. In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior Debt of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency, or liquidation proceeding under the laws of the United States or any State thereof. Notwithstanding anything to the contrary contained in this Agreement, any SPC may (i) with notice to, but without prior consent of, BMCA and the Administrative Agent and with the payment of a processing fee of $500 and without paying any processing fee therefor, assign all or any portion of its interest in any Term Loan Advance to the Granting Lender and (ii) disclose on a confidential basis any non-public information relating to its funding of Term Loan Advance to any rating agency, commercial paper dealer or provider of any surety or guarantee or credit or liquidity enhancement to such SPC. This subsection (k) may not be amended without the prior written consent of each Granting Lender, all or any part of whose Term Loan Advances are being funded by the SPC at the time of such amendment.

Appears in 1 contract

Samples: Credit Agreement (Amf Bowling Inc)

Assignments and Participations. (a) Each Lender may, upon at least five Business Days’ notice to such Lender and the Administrative Agent, assign to one or more Eligible Assignees all or a portion of its rights and obligations under this Agreement (including all or a portion of its Term Loan Commitment, the Term Loan Advances owing to it and the Note or Notes held by it); provided, however, that (i~~) each such assignment shall be of a uniform, and not a varying, percentage of all rights and obligations under this Agreement, (ii~~) except in the case of an assignment to a Person that, immediately prior to such assignment, was a ~~Lender, an Affiliate of any~~ Lender or an ~~Approved Fund~~ affiliate of ~~any~~ a Lender or an assignment of all of a Lender’s 's rights and obligations under this Agreement, the ~~aggregate~~ amount of the ~~Term Loan Commitments or Term Loan Advances~~ Commitment of the assigning Lender being assigned ~~to such Eligible Assignee~~ pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than the lesser of (x) such Lender's Commitment hereunder and (y) $5,000,000 or an integral multiple of $1,000,000 in excess thereof (except as otherwise agreed by the Borrower and the Administrative Agent), (ii) except in the case of an assignment to a Person that, immediately prior to such assignment, was a Lender or an affiliate of a Lender, each such ~~lesser amount as~~ assignment shall be ~~approved by~~ made only upon the prior written approval of the Borrower, the Administrative Agent ~~and~~and each Issuing Bank, ~~so long as no Default shall have occurred and~~ such approval not to be ~~continuing at the time of effectiveness of such assignment, BMCA),~~ unreasonably withheld, (iii) each such assignment shall be to an Eligible Assignee, , (iv) ~~except in the case of an~~ each such assignment by a ~~Person that, immediately prior to such assignment, was a Lender, to one~~ Lender of its ~~Affiliates~~Advances, ~~no such assignments~~ Commitment or Note hereunder shall be ~~permitted without~~ made in such manner so that the ~~consent~~ same portion of its Advances, Commitment and Note hereunder is assigned to the Administrative Agent and, so long as no Default shall have occurred and be continuing at the time of effectiveness of such assignment, BMCA (in each case, which consents shall not be unreasonably withheld) and respective assignee, (v) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together with ~~any~~ the Note ~~or Notes~~ subject to such assignment and a processing and recordation fee in the aggregate amount of $~~3,500.~~3,000, and (bvi) the assignee, if it shall not be a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in such Assignment and Acceptance, (ix) the assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, have the rights and obligations of a Lender hereunder and (iiy) the Lender assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights ~~(other than its rights under Sections 2.09, 2.11 and 8.04 to the extent any claim thereunder relates to an event arising prior to such assignment)~~ and be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all of or the remaining portion of an assigning Lender’s 's rights and obligations under this Agreement, such Lender shall cease to be a party hereto). (cb) By executing and delivering an Assignment and Acceptance, ~~each~~ the Lender assignor thereunder and ~~each~~ the assignee thereunder confirm to and agree with each other and the other parties ~~thereto and~~ hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with ~~any Loan Document~~ this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value ~~of, or the perfection or priority~~ of ~~any lien or security interest created or purported to be created under or in connection with, any Loan Document~~ this Agreement or any other instrument or document furnished pursuant ~~thereto~~hereto; (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any ~~Loan Party~~ Obligor or the performance or observance by ~~any Loan Party~~ the Obligors of any of ~~its~~ their respective obligations under ~~any Loan Document~~ this Agreement or any other instrument or document furnished pursuant ~~thereto~~hereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 4.01 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) such assignee will, independently and without reliance upon ~~any~~ the Administrative Agent, such assigning Lender or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) such assignee confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes ~~each~~ the Administrative Agent to take such action as agent on its behalf and to exercise such powers and discretion under ~~the Loan Documents~~ this Agreement as are delegated to ~~such~~ the Administrative Agent by the terms ~~hereof and thereof~~hereof, together with such powers and discretion as are reasonably incidental thereto; and (vii) such assignee agrees that it will perform in accordance with their terms all of the obligations that by the terms of this Agreement are required to be performed by it as a Lender. (dc) The Administrative ~~Agent~~ Agent, acting for this purpose ~~(but only for this purpose)~~ as ~~the~~ an agent of the ~~Borrowers~~Borrower, shall maintain at its address referred to in Section ~~8.02~~ 9.02 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 Lenders and the ~~Term Loan~~ Commitment of, and principal amount of the ~~Term Loan~~ 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 ~~Borrowers~~Borrower, the ~~Agents~~ Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. No assignment shall be effective until it is recorded in the Register pursuant to this Section 9.07(c). The Register shall be available for inspection by the ~~Borrowers or any Agent~~ Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice. (e) Notwithstanding anything to the contrary contained in clause (b) above, the Term Loan Advances (including the Notes evidencing such Term Loan Advances) are registered obligations and the right, title, and interest of the Lenders and their assignees in and to such Term Loan Advances shall be transferable only upon notation of such transfer in the Register. A Note shall only evidence the Lender’s or an assignee’s right title and interest in and to the related Term Loan Advance, and in no event is any such Note to be considered a bearer instrument or obligation. This Section 8.07 shall be construed so that the Term Loan Advances are at all times maintained in “registered form” within the meaning of sections 163(f), 871(h)(2) and 881(c)(2) of the Internal Revenue Code and any related regulations (or any successor provisions of the Internal Revenue Code or such regulations). Solely for purposes of this and for tax purposes only, the Administrative Agent shall act as each Borrower’s agent for purposes of maintaining such notations of transfer in the Register. (fd) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee, together with ~~any~~ the Note ~~or Notes~~ subject to such assignment, and the assignee's completed Administrative Questionnaire (unless the assignee shall already be a Lender hereunder), the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit C F hereto, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to ~~BMCA and each other Agent~~the Borrower. ~~In the case of any assignment by a Lender, within~~ Within five Business Days after its receipt of such notice, the ~~Borrowers~~Borrower, at ~~their~~ its own expense, ~~shall, if requested by the assignee,~~ shall execute and deliver to the Administrative Agent in exchange for the surrendered Note ~~or Notes an amended and restated~~ a new Note ~~(which shall be marked “Amended and Restated”)~~ to the order of such ~~Eligible Assignee~~ assignee in an amount equal to the ~~Term Loan Commitment~~ portion of the Advances assumed by it ~~under each Facility~~ pursuant to such Assignment and Acceptance and, if ~~any~~ the assigning Lender has retained a ~~Term Loan Commitment hereunder under such Facility and has requested~~ portion of its Advances, a ~~replacement Note, an amended and restated~~ new Note to the order of ~~such~~ the assigning Lender in an amount equal to the ~~Term Loan Commitment~~ portion so retained by it hereunder. Such ~~amended and restated~~ new Note ~~or Notes~~ shall be in an aggregate principal amount equal to the aggregate principal amount of such surrendered ~~Note or Notes~~Note, shall be dated the effective date of such Assignment and Acceptance and shall otherwise be in substantially the form of Exhibit ~~A hereto.~~A. (ge) Each Lender may sell participations ~~to one or more Persons (other than any Loan Party or any of its Affiliates)~~ in or to all or a portion of its rights ~~and~~ and/or obligations under this Agreement (~~including~~ including, without limitation, all or a portion of its ~~Term Loan Commitments,~~ Commitment or the ~~Term Loan~~ Advances owing to it and the Note ~~or Notes (if any)~~ held by it); ~~provided, however,~~ provided that (i) such Lender’s 's obligations under this -------- Agreement (~~including~~ including, without limitation, its ~~Term Loan Commitments~~Commitment) shall remain unchanged, (ii) 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, (iv) the ~~Borrowers~~Obligors, the ~~Agents~~ Administrative Agent, the Issuing Banks and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s 's rights and obligations under this Agreement and (v) no participant under any such participation shall have any right to approve any amendment or waiver of any provision of any ~~Loan~~ Basic Document, or any consent to any departure by any ~~Loan Party~~ Obligor therefrom, except to the extent that such amendment, waiver or consent ~~requires~~ would reduce the ~~consent~~ principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, postpone any date fixed for any payment of principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, or release all ~~Lenders~~or substantially all of the Collateral. (hf) Any Issuing Bank may (subject to the prior written consent of Terra, such consent not to be unreasonably withheld) assign all or any portion of its rights and obligations under this Agreement to one or more successor Issuing Banks that is a commercial bank organized under the laws of the United States, or any state thereof, and having total assets in excess of $1,000,000,000 and, upon the acceptance of such assignment, the respective successor Issuing Banks shall succeed to such portion of such rights and obligations and such assigning Issuing Bank shall be discharged from its duties and obligations under this Agreement to such extent, including, without limitation, such portion of its Letter of Credit Commitment. (g) Any Issuing Bank and any Lender may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section ~~8.07~~9.07, disclose to the assignee or participant or proposed assignee or ~~participant~~ participant, any information relating to the ~~Borrowers~~ Borrower furnished to such Lender by or on behalf of the ~~Borrowers~~Borrower; ~~provided, however,~~ provided that, prior to any such -------- disclosure, the assignee or participant or proposed assignee or participant shall agree in writing to preserve the confidentiality of any Confidential Information received by it from such ~~Lender in accordance with the terms of Section 8.09~~Issuing Bank or Lender. (ih) Notwithstanding any other provision set forth in this Agreement, any Lender may at any time create a security interest in all or any portion of its rights under this Agreement (~~including~~ including, without limitation, the ~~Term Loan~~ 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 System. (ji) ~~Notwithstanding anything~~ Anything in this Section 9.07 to the contrary ~~contained herein~~notwithstanding, ~~any~~ each Lender ~~that is a fund that invests in bank loans may create a security interest in all or any portion of the Term Loan Advances owing~~ shall be permitted to it and the Note or Notes held by it to the trustee for holders of obligations owed, or securities issued, by such fund as security for such obligations or securities, provided, that unless and until such trustee actually becomes a Lender in compliance with the other provisions of this Section 8.07, (i) no such pledge shall release the pledging Lender from any of its obligations under the Loan Documents and (ii) such trustee shall not be entitled to exercise any of the rights of a Lender under the Loan Documents even though such trustee may have acquired ownership rights with respect to the pledged interest through foreclosure or otherwise. (k) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Lender”) may grant to a special purpose funding vehicle identified as such in writing from time to time by the Granting Lender to the Administrative Agent and BMCA (an “SPC”) the option to provide all or any part of its right, title and interest in, to and under the Advances and Note held by it to any ~~Term Loan~~ trustee for the benefit of the holders of such Lender's securities. (j) Anything in this Section 9.07 to the contrary notwithstanding, neither Terra nor any of its Subsidiaries or Affiliates may acquire (whether by assignment, participation or otherwise), and no Lender or Issuing Bank shall assign or participate to Terra or any of its Subsidiaries or Affiliates, any interest in any Commitment, Advance ~~that such Granting Lender would otherwise be obligated to make pursuant to this Agreement,~~ or other amount owing hereunder without the prior consent of each Lender; provided that ~~(i) nothing herein shall constitute a commitment by any SPC to fund any Term Loan Advance~~the Lenders and the Issuing Banks -------- may assign all of their interests in the Commitments, Advances and ~~(ii) if an SPC elects not to exercise~~ such ~~option or otherwise fails to make all or any part of such Term Loan Advance, the Granting Lender shall be obligated to make such Term Loan Advance~~ other amounts pursuant to the ~~terms hereof. The making of an Advance by an SPC hereunder shall utilize the Term~~ Loan Commitment of the Granting Lender to the same extent, and as if, such Term Loan Advance were made by such Granting Lender. Each party hereto hereby agrees that (i) no SPC shall be liable for any indemnity or similar payment obligation under this Agreement for which a Lender would be liable, (ii) no SPC shall be entitled to the benefits of Sections 2.09 and 2.11 (or any other increased costs protection provision) and (iii) the Granting Bank shall for all purposes, including the approval of any amendment or waiver of any provision of any Loan Document, remain the Lender of record hereunder. In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Purchase Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior Debt of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency, or liquidation proceeding under the laws of the United States or any State thereof. Notwithstanding anything to the contrary contained in this Agreement, any SPC may (i) with notice to, but without prior consent of, BMCA and the Administrative Agent and with the payment of a processing fee of $500 and without paying any processing fee therefor, assign all or any portion of its interest in any Term Loan Advance to the Granting Lender and (ii) disclose on a confidential basis any non-public information relating to its funding of Term Loan Advance to any rating agency, commercial paper dealer or provider of any surety or guarantee or credit or liquidity enhancement to such SPC. This subsection (k) may not be amended without the prior written consent of each Granting Lender, all or any part of whose Term Loan Advances are being funded by the SPC at the time of such amendment.

Appears in 1 contract

Samples: Credit Agreement (Terra Industries Inc)

Assignments and Participations. (a) Each Lender may, ~~upon at least five Business Days’ notice to such Lender and~~ with the consent of the Administrative Agent, and, so long as no Event of Default has occurred and is continuing, with the consent of the Appropriate Borrower (in each case, such consent not to be unreasonably withheld), assign to one or more Eligible Assignees all or a portion of its rights and obligations under this Agreement (~~including~~ including, without limitation, all or a portion of its ~~Term Loan Commitment~~Commitment or Commitments, the ~~Term Loan~~ Advances owing to it and the Note or Notes held by it); ~~provided~~PROVIDED, however, that no consent by either Borrower or the Administrative Agent shall be required for an assignment to any Person who is an Affiliate of such Lender, and PROVIDED, FURTHER, that (i) each such assignment shall be of a uniform, and not a varying, percentage of all rights and obligations under ~~this Agreement~~and in respect of one or more Facilities, (ii) except in the case of an assignment to a Person that, immediately prior to such assignment, was a ~~Lender, an Affiliate of any Lender or an Approved Fund of any~~ Lender or an assignment of all of a Lender’s 's rights and obligations under this ~~Agreement~~Agreement or all of a Lender's rights and obligations with respect to its Term B Commitment, the ~~aggregate~~ amount of the ~~Term Loan Commitments or Term Loan Advances~~ Commitment of the assigning Lender being assigned ~~to such Eligible Assignee~~ pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $5,000,000 (or ~~such lesser amount as shall be approved by the Administrative Agent and, so long as no Default shall have occurred and be continuing at the time~~ integral multiples of ~~effectiveness of such assignment, BMCA~~$1,000,000 in excess thereof), (iii) each such assignment shall be to an Eligible Assignee, (iv) except in the case of an assignment by a Person that, immediately prior to such assignment, was a Lender, to one of its Affiliates, no such assignments shall be permitted without the consent of the Administrative Agent and, so long as no Default shall have occurred and be continuing at the time of effectiveness of such assignment, BMCA (in each case, which consents shall not be unreasonably withheld) and (vvi) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together with any Note or Notes subject to such assignment ~~and~~ and, other than in the case of an assignment to an Affiliate of such Lender, a processing and recordation fee of $~~3,500~~3,000; PROVIDED, however, that the foregoing processing and recordation fee for any assignment made pursuant to this Section 9.07 on or prior to March 31, 1998 which is, in the opinion of the Administrative Agent, associated with the original syndication of the Facilities, will be waived. (b) Upon such execution, delivery, acceptance and recording, from and after the effective date specified in such Assignment and Acceptance, (ix) the assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, have the rights and obligations of a Lender or Issuing Bank, as the case may be, hereunder and (iiy) the Lender or Issuing Bank assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights ~~(other than its rights under Sections 2.09, 2.11 and 8.04 to the extent any claim thereunder relates to an event arising prior to such assignment)~~ and be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all of or the remaining portion of an assigning Lender’s 's or Issuing Bank's rights and obligations under this Agreement, such Lender or Issuing Bank shall cease to be a party hereto). (c) By executing and delivering an Assignment and Acceptance, ~~each~~ the Lender Party assignor thereunder and ~~each~~ the assignee thereunder confirm to and agree with each other and the other parties ~~thereto and~~ hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender Party makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or any other Loan Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value of, or the perfection or priority of any lien or security interest created or purported to be created under or in connection with, this Agreement or any other Loan Document or any other instrument or document furnished pursuant hereto or thereto; (ii) such assigning Lender Party makes no representation or warranty and assumes no responsibility with respect to the financial condition of either Borrower or any other Loan Party or the performance or observance by any Loan Party of any of its obligations under any Loan Document or any other instrument or document furnished pursuant thereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 4.01 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) such assignee will, independently and without reliance upon ~~any~~ the Administrative Agent, such assigning Lender Party or any other Lender Party and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) such assignee confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes ~~each~~ the Administrative Agent to take such action as agent on its behalf and to exercise such powers and discretion under the Loan Documents as are delegated to ~~such~~ the Administrative Agent by the terms ~~hereof and thereof~~hereof, together with such powers and discretion as are reasonably incidental thereto; and (vii) such assignee agrees that it will perform in accordance with their terms all of the obligations ~~that~~ which by the terms of this Agreement are required to be performed by it as a ~~Lender~~Lender or Issuing Bank, as the case may be. (d) The Administrative ~~Agent~~ Agent, acting for this purpose (but only for this purpose) as the agent of the Borrowers, shall maintain at its address referred to in Section ~~8.02~~ 9.02 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 ~~Lenders~~ Lender Parties and the ~~Term Loan~~ Commitment under each Facility of, and principal amount of the ~~Term Loan~~ Advances owing under each Facility to, each Lender Party from time to time (the ~~“Register”~~"REGISTER"). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrowers, the ~~Agents~~ Administrative Agent and the ~~Lenders~~ Lender Parties shall treat each Person whose name is recorded in the Register as a Lender Party hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrowers or any ~~Agent or any~~ Lender Party at any reasonable time and from time to time upon reasonable prior notice. (e) Notwithstanding anything to the contrary contained in clause (b) above, the Term Loan Advances (including the Notes evidencing such Term Loan Advances) are registered obligations and the right, title, and interest of the Lenders and their assignees in and to such Term Loan Advances shall be transferable only upon notation of such transfer in the Register. A Note shall only evidence the Lender’s or an assignee’s right title and interest in and to the related Term Loan Advance, and in no event is any such Note to be considered a bearer instrument or obligation. This Section 8.07 shall be construed so that the Term Loan Advances are at all times maintained in “registered form” within the meaning of sections 163(f), 871(h)(2) and 881(c)(2) of the Internal Revenue Code and any related regulations (or any successor provisions of the Internal Revenue Code or such regulations). Solely for purposes of this and for tax purposes only, the Administrative Agent shall act as each Borrower’s agent for purposes of maintaining such notations of transfer in the Register. (f) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender Party and an assignee, together with any Note or Notes subject to such assignment, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit C hereto, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to ~~BMCA and each other Agent~~the Appropriate Borrower. In the case of any assignment by a Lender, within five Business Days after its receipt of such notice, the ~~Borrowers~~Appropriate Borrower, at ~~their~~ its own expense, ~~shall, if requested by the assignee,~~ shall execute and deliver to the Administrative Agent in exchange for the surrendered Note or Notes ~~an amended and restated~~ a new Note ~~(which shall be marked “Amended and Restated”)~~ to the order of such Eligible Assignee in an amount equal to the ~~Term Loan~~ Commitment assumed by it under ~~each~~ a Facility pursuant to such Assignment and Acceptance and, if ~~any~~ the assigning Lender has retained a ~~Term Loan~~ Commitment hereunder under such ~~Facility and has requested~~ Facility, a ~~replacement Note, an amended and restated~~ new Note to the order of ~~such~~ the assigning Lender in an amount equal to the ~~Term Loan~~ Commitment retained by it hereunder. Such ~~amended and restated~~ 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 Assignment and Acceptance and shall otherwise be in substantially the form of Exhibit A X-0, X-0 or A-3 hereto, as the case may be. (f) The Issuing Bank may, with the consent of the Administrative Agent, and, so long as no Event of Default shall have occurred and be continuing, with the consent of the U.S. Borrower (such consent not to be unreasonably withheld), assign to an Eligible Assignee all of its rights and obligations under the undrawn portion of its Letter of Credit Commitment at any time; PROVIDED, HOWEVER, that (i) each such assignment shall be to an Eligible Assignee and (ii) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together with a processing and recordation fee of $3,000. (g) Each Lender Party may sell participations to one or more Persons (other than any Loan Party or any of its Affiliates) in or to all or a portion of its rights and obligations under this Agreement (~~including~~ including, without limitation, all or a portion of its ~~Term Loan~~ Commitments, the ~~Term Loan~~ Advances owing to it and the Note or Notes (if any) held by it); ~~provided~~PROVIDED, ~~however~~HOWEVER, that (i) such ~~Lender’s~~ Lender Party's rights and obligations under this Agreement (~~including~~ including, without limitation, its ~~Term Loan~~ Commitments) shall remain unchanged, (ii) such Lender Party shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) such Lender Party shall remain the holder of any such Note for all purposes of this Agreement, (iv) the Borrowers, the ~~Agents~~ Administrative Agent and the other ~~Lenders~~ Lender Parties shall continue to deal solely and directly with such Lender Party in connection with such ~~Lender’s~~ Lender Party's rights and obligations under this ~~Agreement and~~ Agreement, (v) no participant under any such participation shall have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent ~~requires~~ would reduce the ~~consent~~ principal of, or interest (other than increased interest following Default pursuant to Section 2.07(b)) on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, postpone any Termination Date, or date fixed for payment of interest on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, or release the U.S. Borrower from its Obligations under Article VI hereof, or all ~~Lenders~~or substantially all of the Collateral, and (vi) neither Borrower shall be subject to any increased liability to any Lender Party pursuant to this Agreement by virtue of such participation. (h) Any Lender Party may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section ~~8.07~~9.07, disclose to the assignee or participant or proposed assignee or ~~participant~~ participant, any information relating to the Borrowers furnished to such Lender Party by or on behalf of the Borrowers; ~~provided~~PROVIDED, ~~however~~HOWEVER, 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 received by it from such Lender ~~in accordance with the terms of Section 8.09~~Party. (i) Notwithstanding any other provision set forth in this Agreement, any Lender Party may at any time create a security interest in all or any portion of its rights under this Agreement (~~including~~ including, without limitation, the ~~Term Loan~~ 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 System. (j) Notwithstanding anything to the contrary contained herein, any Lender that is a fund that invests in bank loans may create a security interest in all or any portion of the Term Loan Advances owing to it and the Note or Notes held by it to the trustee for holders of obligations owed, or securities issued, by such fund as security for such obligations or securities, provided, that unless and until such trustee actually becomes a Lender in compliance with the other provisions of this Section 8.07, (i) no such pledge shall release the pledging Lender from any of its obligations under the Loan Documents and (ii) such trustee shall not be entitled to exercise any of the rights of a Lender under the Loan Documents even though such trustee may have acquired ownership rights with respect to the pledged interest through foreclosure or otherwise. (k) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Lender”) may grant to a special purpose funding vehicle identified as such in writing from time to time by the Granting Lender to the Administrative Agent and BMCA (an “SPC”) the option to provide all or any part of any Term Loan Advance that such Granting Lender would otherwise be obligated to make pursuant to this Agreement, provided that (i) nothing herein shall constitute a commitment by any SPC to fund any Term Loan Advance, and (ii) if an SPC elects not to exercise such option or otherwise fails to make all or any part of such Term Loan Advance, the Granting Lender shall be obligated to make such Term Loan Advance pursuant to the terms hereof. The making of an Advance by an SPC hereunder shall utilize the Term Loan Commitment of the Granting Lender to the same extent, and as if, such Term Loan Advance were made by such Granting Lender. Each party hereto hereby agrees that (i) no SPC shall be liable for any indemnity or similar payment obligation under this Agreement for which a Lender would be liable, (ii) no SPC shall be entitled to the benefits of Sections 2.09 and 2.11 (or any other increased costs protection provision) and (iii) the Granting Bank shall for all purposes, including the approval of any amendment or waiver of any provision of any Loan Document, remain the Lender of record hereunder. In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior Debt of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency, or liquidation proceeding under the laws of the United States or any State thereof. Notwithstanding anything to the contrary contained in this Agreement, any SPC may (i) with notice to, but without prior consent of, BMCA and the Administrative Agent and with the payment of a processing fee of $500 and without paying any processing fee therefor, assign all or any portion of its interest in any Term Loan Advance to the Granting Lender and (ii) disclose on a confidential basis any non-public information relating to its funding of Term Loan Advance to any rating agency, commercial paper dealer or provider of any surety or guarantee or credit or liquidity enhancement to such SPC. This subsection (k) may not be amended without the prior written consent of each Granting Lender, all or any part of whose Term Loan Advances are being funded by the SPC at the time of such amendment.

Appears in 1 contract

Samples: Credit Agreement (Accuride Corp)

Assignments and Participations. (a) Each Lender ~~may, upon at least five Business Days’ notice to such Lender and the Administrative Agent,~~ may assign to one or more Eligible Assignees all or a portion of its rights and obligations under this Agreement (~~including~~ including, without limitation, all or a portion of its ~~Term Loan Commitment~~Commitment or Commitments, the ~~Term Loan~~ Advances owing to it and the Note or Notes held by it); provided, however, that (i) each such assignment shall be of a uniform, and not a varying, percentage of all rights and obligations under ~~this Agreement~~and in respect of one or more of the Facilities, (ii) except in the case of an assignment to a Person that, immediately prior to such assignment, was a Lender, an Affiliate of any Lender or ~~an Approved~~ a Fund Affiliate of any Lender or an assignment of all of a Lender’s rights and obligations under this Agreement, the aggregate amount of the ~~Term Loan~~ Commitments ~~or Term Loan Advances~~ being assigned to such Eligible Assignee pursuant to such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $5,000,000 under each Facility or an integral multiple of $1,000,000 in excess thereof (or such lesser amount as shall be approved by the Administrative Agent and, so long as no Default shall have occurred and be continuing at the time of effectiveness of such assignment, ~~BMCA~~the Borrower), (iii) each such assignment shall be to an Eligible Assignee, (iv) except in the case of an assignment by to a Person that, immediately prior to such assignment, was a Lender, ~~to one~~ an Affiliate of ~~its Affiliates, no such assignments shall be permitted without the consent~~ any Lender or a Fund Affiliate of ~~the Administrative Agent and,~~ any Lender and so long as no Default shall have occurred and be ~~continuing at~~ continuing, each assignment shall be made with the ~~time~~ consent of ~~effectiveness of such assignment, BMCA (in each case~~the Borrower, which ~~consents~~ consent shall not be unreasonably withheld or delayed, (v) no such assignments shall be permitted (A) until the Administrative Agent shall have notified the Lender Parties that syndication of the Commitments hereunder has been completed, without the consent of the Administrative Agent, and (B) at any other time without the consent of the Administrative Agent (which consent shall not be unreasonably withheld) ), and (vvi) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together with any Note or Notes subject to such assignment ~~and~~ and, except if such assignment is being made by a Lender to an Affiliate or Fund Affiliate of such Lender, a processing and recordation fee of $3,500. (b) Upon such execution, delivery, acceptance and recording, from and after the effective date specified in such 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, have the rights and obligations of a Lender or Issuing Bank, as the case may be, hereunder and (ii) the Lender or Issuing Bank assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (other than its rights under Sections ~~2.09~~2.10, ~~2.11~~ 2.12, 7.06, 8.05 and ~~8.04~~ 9.04 to the extent any claim thereunder relates to an event arising prior to such assignment) and be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all of the remaining portion of an assigning Lender’s or Issuing Bank’s rights and obligations under this Agreement, such Lender or Issuing Bank shall cease to be a party hereto). (c) By executing and delivering an Assignment and Acceptance, each Lender Party assignor thereunder and each assignee thereunder confirm to and agree with each other and the other parties thereto and hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender Party makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with any Loan Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value of, or the perfection or priority of any lien or security interest created or purported to be created under or in connection with, any Loan Document or any other instrument or document furnished pursuant thereto; (ii) such assigning Lender Party makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party or the performance or observance by any Loan Party of any of its obligations under any Loan Document or any other instrument or document furnished pursuant thereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 4.01 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) such assignee will, independently and without reliance upon ~~any~~ the Administrative Agent, such assigning Lender Party or any other Lender Party and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) such assignee confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes ~~each~~ the Administrative Agent to take such action as agent on its behalf and to exercise such powers and discretion under the Loan Documents as are delegated to ~~such~~ the Administrative Agent by the terms hereof and thereof, together with such powers and discretion as are reasonably incidental thereto; and (vii) such assignee agrees that it will perform in accordance with their terms all of the obligations that by the terms of this Agreement are required to be performed by it as a ~~Lender~~Lender or Issuing Bank, as the case may be. (d) The Administrative Agent ~~acting for this purpose (but only for this purpose) as the agent of the Borrowers,~~ shall maintain at its address referred to in Section ~~8.02~~ 9.02 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 ~~Lenders~~ Lender Parties and the ~~Term Loan~~ Commitment under each Facility of, and principal amount of the ~~Term Loan~~ Advances owing under each Facility to, each Lender Party from time to time (the “Register”). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the ~~Borrowers~~Borrower, the ~~Agents~~ Administrative Agent and the ~~Lenders shall~~ Lender Parties may treat each Person whose name is recorded in the Register as a Lender Party hereunder for all purposes of this Agreement. The Register shall be available for inspection by the ~~Borrowers~~ Borrower or ~~any~~ the Administrative Agent or any Lender Party at any reasonable time and from time to time upon reasonable prior notice. (e) Notwithstanding anything to the contrary contained in clause (b) above, the Term Loan Advances (including the Notes evidencing such Term Loan Advances) are registered obligations and the right, title, and interest of the Lenders and their assignees in and to such Term Loan Advances shall be transferable only upon notation of such transfer in the Register. A Note shall only evidence the Lender’s or an assignee’s right title and interest in and to the related Term Loan Advance, and in no event is any such Note to be considered a bearer instrument or obligation. This Section 8.07 shall be construed so that the Term Loan Advances are at all times maintained in “registered form” within the meaning of sections 163(f), 871(h)(2) and 881(c)(2) of the Internal Revenue Code and any related regulations (or any successor provisions of the Internal Revenue Code or such regulations). Solely for purposes of this and for tax purposes only, the Administrative Agent shall act as each Borrower’s agent for purposes of maintaining such notations of transfer in the Register. (f) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender Party and an assignee, together with any Note or Notes subject to such assignment, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit C D hereto, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to ~~BMCA~~ the Borrower and each other Agent. In the case of any assignment by a Lender, within five Business Days after its receipt of such notice, the ~~Borrowers~~Borrower, at ~~their~~ its own expense, shall, if requested by the ~~assignee~~applicable Lender, execute and deliver to the Administrative Agent in exchange for the surrendered Note or Notes ~~an amended and restated~~ a new Note ~~(which shall be marked “Amended and Restated”)~~ to the order of such Eligible Assignee in an amount equal to the ~~Term Loan~~ Commitment assumed by it under each Facility pursuant to such Assignment and Acceptance and, if any assigning Lender has retained a ~~Term Loan~~ Commitment hereunder under such ~~Facility and has requested~~ Facility, a ~~replacement Note, an amended and restated~~ new Note to the order of such assigning Lender in an amount equal to the ~~Term Loan~~ Commitment retained by it hereunder. Such ~~amended and restated~~ new Note or ~~Notes~~ Notes, if any, shall be in an aggregate principal amount equal to the aggregate principal amount of such surrendered Note or Notes, shall be dated the effective date of such Assignment and Acceptance and shall otherwise be in substantially the form of Exhibit A hereto. (f) Each Issuing Bank may assign to one or more Eligible Assignees all or a portion of its rights and obligations under the undrawn portion of its Letter of Credit Commitment at any time; provided, however, that (i) except in the case of an assignment to a Person that immediately prior to such assignment was an Issuing Bank or an assignment of all of an Issuing Bank’s rights and obligations under this Agreement, the amount of the Letter of Credit Commitment of the assigning Issuing Bank being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $5,000,000 and shall be in an integral multiple of $1,000,000 in excess thereof, (ii) each such assignment shall be to an Eligible Assignee and (iii) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together with a processing and recordation fee of $3,500, provided that such fee shall not be payable if the assigning Issuing Bank is making such assignment simultaneously with the assignment in its capacity as a Lender of all or a portion of its Revolving Credit Commitment to the same Eligible Assignee. (g) Each Lender Party may sell participations to one or more Persons (other than any Loan Party or any of its Affiliates) in or to all or a portion of its rights and obligations under this Agreement (~~including~~ including, without limitation, all or a portion of its ~~Term Loan~~ Commitments, the ~~Term Loan~~ Advances owing to it and the Note or Notes (if any) held by it); provided, however, that (i) such ~~Lender~~Lender Party’s obligations under this Agreement (~~including~~ including, without limitation, its ~~Term Loan~~ Commitments) shall remain unchanged, (ii) such Lender Party shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) such Lender Party shall remain the holder of any such Note for all purposes of this Agreement, (iv) the ~~Borrowers~~Borrower, the ~~Agents~~ Administrative Agent and the other ~~Lenders~~ Lender Parties shall continue to deal solely and directly with such Lender Party in connection with such ~~Lender~~Lender Party’s rights and obligations under this ~~Agreement and~~ Agreement, (v) no participant under any such participation shall have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent ~~requires~~ would reduce the ~~consent~~ principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, or postpone any date fixed for any payment of principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, or release all ~~Lenders~~or substantially all of the Collateral and (vi) if, at the time of such sale, such Lender Party was entitled to payments under Section 2.12(a) in respect of United States withholding tax with respect to interest paid at such date, then, to such extent, the term Taxes shall include (in addition to withholding taxes that may be imposed in the future or other amounts otherwise includable in Taxes) United States withholding tax, if any, applicable with respect to such participant on such date; provided that such participant complies with the requirements of Section 2.12(e). (h) Any Lender Party may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section ~~8.07~~9.07, disclose to the assignee or participant or proposed assignee or participant any information relating to the ~~Borrowers~~ Borrower furnished to such Lender Party by or on behalf of the ~~Borrowers~~Borrower; provided, however, 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 received by it from such Lender ~~in accordance with the terms of Section 8.09~~Party. (i) Notwithstanding any other provision set forth in this Agreement, any Lender Party may at any time create a security interest in all or any portion of its rights under this Agreement (~~including~~ including, without limitation, the ~~Term Loan~~ 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 System. (j) Notwithstanding anything to the contrary contained herein, any Lender that is a fund that invests in bank loans may create a security interest in all or any portion of the Term Loan Advances owing to it and the Note or Notes held by it to the trustee for holders of obligations owed, or securities issued, by such fund as security for such obligations or securities, provided, that unless and until such trustee actually becomes a Lender in compliance with the other provisions of this Section 8.07, (i) no such pledge shall release the pledging Lender from any of its obligations under the Loan Documents and (ii) such trustee shall not be entitled to exercise any of the rights of a Lender under the Loan Documents even though such trustee may have acquired ownership rights with respect to the pledged interest through foreclosure or otherwise. (k) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Lender”) may grant to a special purpose funding vehicle identified as such in writing from time to time by the Granting Lender to the Administrative Agent and BMCA (an “SPC”) the option to provide all or any part of any Term Loan Advance that such Granting Lender would otherwise be obligated to make pursuant to this Agreement, provided that (i) nothing herein shall constitute a commitment by any SPC to fund any Term Loan Advance, and (ii) if an SPC elects not to exercise such option or otherwise fails to make all or any part of such Term Loan Advance, the Granting Lender shall be obligated to make such Term Loan Advance pursuant to the terms hereof. The making of an Advance by an SPC hereunder shall utilize the Term Loan Commitment of the Granting Lender to the same extent, and as if, such Term Loan Advance were made by such Granting Lender. Each party hereto hereby agrees that (i) no SPC shall be liable for any indemnity or similar payment obligation under this Agreement for which a Lender would be liable, (ii) no SPC shall be entitled to the benefits of Sections 2.09 and 2.11 (or any other increased costs protection provision) and (iii) the Granting Bank shall for all purposes, including the approval of any amendment or waiver of any provision of any Loan Document, remain the Lender of record hereunder. In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior Debt of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency, or liquidation proceeding under the laws of the United States or any State thereof. Notwithstanding anything to the contrary contained in this Agreement, any SPC may (i) with notice to, but without prior consent of, BMCA and the Administrative Agent and with the payment of a processing fee of $500 and without paying any processing fee therefor, assign all or any portion of its interest in any Term Loan Advance to the Granting Lender and (ii) disclose on a confidential basis any non-public information relating to its funding of Term Loan Advance to any rating agency, commercial paper dealer or provider of any surety or guarantee or credit or liquidity enhancement to such SPC. This subsection (k) may not be amended without the prior written consent of each Granting Lender, all or any part of whose Term Loan Advances are being funded by the SPC at the time of such amendment.

Appears in 1 contract

Samples: Revolving Credit Agreement (Sunstone Hotel Investors, Inc.)

Assignments and Participations. (a) Each Lender may, upon at least five Business Days’ ' notice to ~~such Lender and~~ the ~~Administrative~~ Agent, assign to one or more Eligible Assignees all or a portion of its rights and obligations under this Agreement (~~including~~ including, without limitation, all or a portion of its ~~Term Loan Commitment~~Commitment or Commitments, the ~~Term Loan~~ Advances owing to it and the Note or Notes held by it); provided, however, that (i) each such assignment shall be of a uniform, and not a varying, percentage of all rights and obligations under ~~this Agreement~~and in respect of any one Facility, (ii) except in the case of an assignment to a Person that, immediately prior to such assignment, was a ~~Lender, an Affiliate of any Lender or an Approved Fund of any~~ Lender or an assignment of all of a Lender’s 's rights and obligations under this Agreement, the ~~aggregate~~ amount of the ~~Term Loan Commitments or Term Loan Advances~~ Commitment of the assigning Lender being assigned ~~to such Eligible Assignee~~ pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $5,000,000 ~~(or such lesser amount as~~ and shall be ~~approved by the Administrative Agent and, so long as no Default shall have occurred and be continuing at the time~~ in an integral multiple of ~~effectiveness of such assignment, BMCA)~~$500,000, (iii) each such assignment shall be to an Eligible Assignee, (iv) ~~except in the case of an assignment by a Person that, immediately prior to such assignment, was a Lender, to one of its Affiliates,~~ no such assignments shall be permitted without the consent of the ~~Administrative~~ Agent ~~and, so long as no Default~~ until the Agent shall have ~~occurred and be continuing at~~ notified the ~~time~~ Lender Parties that syndication of ~~effectiveness of such assignment~~the Commitments hereunder has been completed, ~~BMCA (in each case, which consents shall not be unreasonably withheld)~~ and (v) the parties to each such assignment shall execute and deliver to the ~~Administrative~~ Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together with any Note or Notes subject to such assignment and a processing and recordation fee of $~~3,500~~2,000. (b) The Issuing Bank may assign to an Eligible Assignee all of its rights and obligations under the undrawn portion of its Letter of Credit Commitment at any time; provided, however, that (i) each such assignment shall be to an Eligible Assignee and (ii) the parties to each such assignment shall execute and deliver to the Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together with a processing and recordation fee of $2,000. (c) Upon such execution, delivery, acceptance and recording, from and after the effective date specified in such Assignment and Acceptance, (ix) the assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, have the rights and obligations of a Lender or Issuing Bank, as the case may be, hereunder and (iiy) the Lender or Issuing Bank assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights ~~(other than its rights under Sections 2.09, 2.11 and 8.04 to the extent any claim thereunder relates to an event arising prior to such assignment)~~ and be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all of or the remaining portion of an assigning Lender’s 's or Issuing Bank's rights and obligations under this Agreement, such Lender or Issuing Bank shall cease to be a party hereto). (cd) By executing and delivering an Assignment and Acceptance, ~~each~~ the Lender Party assignor thereunder and ~~each~~ the assignee thereunder confirm to and agree with each other and the other parties ~~thereto and~~ hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender Party makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or any other Loan Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value of, or the perfection or priority of any lien or security interest created or purported to be created under or in connection with, this Agreement or any other Loan Document or any other instrument or document furnished pursuant hereto or thereto; (ii) such assigning Lender Party makes no representation or warranty and assumes no responsibility with respect to the financial condition of the Borrower or any other Loan Party or the performance or observance by any Loan Party of any of its obligations under any Loan Document or any other instrument or document furnished pursuant thereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 4.01 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) such assignee will, independently and without reliance upon ~~any~~ the Agent, such assigning Lender Party or any other Lender Party and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) such assignee confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes ~~each~~ the Agent to take such action as agent on its behalf and to exercise such powers and discretion under the Loan Documents as are delegated to ~~such~~ the Agent by the terms ~~hereof and thereof~~hereof, together with such powers and discretion as are reasonably incidental thereto; and (vii) such assignee agrees that it will perform in accordance with their terms all of the obligations ~~that~~ which by the terms of this Agreement are required to be performed by it as a ~~Lender~~Lender or Issuing Bank, as the case may be. (de) The ~~Administrative~~ Agent ~~acting for this purpose (but only for this purpose) as the agent of the Borrowers,~~ shall maintain at its address referred to in Section 8.02 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 ~~Lenders~~ Lender Parties and the ~~Term Loan~~ Commitment under each Facility of, and principal amount of the ~~Term Loan~~ Advances owing under each Facility to, each Lender Party from time to time (the ~~“Register”~~"REGISTER"). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the ~~Borrowers~~Borrower, the ~~Agents~~ Agent and the ~~Lenders shall~~ Lender Parties may treat each Person whose name is recorded in the Register as a Lender Party hereunder for all purposes of this Agreement. The Register shall be available for inspection by the ~~Borrowers or any Agent~~ Borrower or any Lender Party at any reasonable time and from time to time upon reasonable prior notice. (e) Notwithstanding anything to the contrary contained in clause (b) above, the Term Loan Advances (including the Notes evidencing such Term Loan Advances) are registered obligations and the right, title, and interest of the Lenders and their assignees in and to such Term Loan Advances shall be transferable only upon notation of such transfer in the Register. A Note shall only evidence the Lender’s or an assignee’s right title and interest in and to the related Term Loan Advance, and in no event is any such Note to be considered a bearer instrument or obligation. This Section 8.07 shall be construed so that the Term Loan Advances are at all times maintained in “registered form” within the meaning of sections 163(f), 871(h)(2) and 881(c)(2) of the Internal Revenue Code and any related regulations (or any successor provisions of the Internal Revenue Code or such regulations). Solely for purposes of this and for tax purposes only, the Administrative Agent shall act as each Borrower’s agent for purposes of maintaining such notations of transfer in the Register. (f) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender Party and an assignee, together with any Note or Notes subject to such assignment, the ~~Administrative~~ Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit C hereto, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to ~~BMCA and each other Agent~~the Borrower. In the case of any assignment by a Lender, within five Business Days after its receipt of such notice, the ~~Borrowers~~Borrower shall, at ~~their~~ its own expense~~, shall, if requested by the assignee~~, execute and deliver to the ~~Administrative~~ Agent in exchange for the surrendered Note or Notes ~~an amended and restated~~ a new Note ~~(which shall be marked “Amended and Restated”)~~ to the order of such Eligible Assignee in an amount equal to the ~~Term Loan~~ Commitment assumed by it under ~~each~~ a Facility pursuant to such Assignment and Acceptance and, if ~~any~~ the assigning Lender has retained a ~~Term Loan~~ Commitment hereunder under such ~~Facility and has requested~~ Facility, a ~~replacement Note, an amended and restated~~ new Note to the order of ~~such~~ the assigning Lender in an amount equal to the ~~Term Loan~~ Commitment retained by it hereunder. Such ~~amended and restated~~ 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 Assignment and ~~Acceptance~~ Acceptance, and shall otherwise be in substantially the form of Exhibit A A-1 or A-2 hereto, as the case may be. (g) Each Lender Party may sell participations ~~to one or more Persons (other than any Loan Party or any of its Affiliates)~~ in or to all or a portion of its rights and obligations under this Agreement (~~including~~ including, without limitation, all or a portion of its ~~Term Loan~~ Commitments, the ~~Term Loan~~ Advances owing to it and the Note or Notes (if any) held by it)) to any Person other than any Loan Party or any of its Subsidiaries or Affiliates; provided, however, that (i) such ~~Lender’s~~ Lender Party's obligations under this Agreement (~~including~~ including, without limitation, its ~~Term Loan~~ Commitments) shall remain unchanged, (ii) such Lender Party shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) such Lender Party shall remain the holder of any such Note for all purposes of this Agreement, (iv) the ~~Borrowers~~Borrower, the ~~Agents~~ Agent and the other ~~Lenders~~ Lender Parties shall continue to deal solely and directly with such Lender Party in connection with such ~~Lender’s~~ Lender Party's rights and obligations under this Agreement and (v) no participant under any such participation shall have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent ~~requires~~ would reduce the ~~consent~~ principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, postpone any date fixed for any payment of principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, or release all ~~Lenders~~or substantially all of the Collateral. (h) Any Lender Party may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section 8.07, disclose to the assignee or participant or proposed assignee or ~~participant~~ participant, any information relating to the ~~Borrowers~~ Borrower furnished to such Lender Party by or on behalf of the ~~Borrowers~~Borrower; provided, however, that, prior to any such disclosure, the assignee or participant or proposed assignee or participant shall agree to 113 preserve the confidentiality of any Confidential Information received by it from such Lender ~~in accordance with the terms of Section 8.09~~Party. (i) Notwithstanding any other provision set forth in this Agreement, any Lender Party may at any time create a security interest in all or any portion of its rights under this Agreement (~~including~~ including, without limitation, the ~~Term Loan~~ 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 System. (j) Notwithstanding anything to the contrary contained herein, any Lender that is a fund that invests in bank loans may create a security interest in all or any portion of the Term Loan Advances owing to it and the Note or Notes held by it to the trustee for holders of obligations owed, or securities issued, by such fund as security for such obligations or securities, provided, that unless and until such trustee actually becomes a Lender in compliance with the other provisions of this Section 8.07, (i) no such pledge shall release the pledging Lender from any of its obligations under the Loan Documents and (ii) such trustee shall not be entitled to exercise any of the rights of a Lender under the Loan Documents even though such trustee may have acquired ownership rights with respect to the pledged interest through foreclosure or otherwise. (k) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Lender”) may grant to a special purpose funding vehicle identified as such in writing from time to time by the Granting Lender to the Administrative Agent and BMCA (an “SPC”) the option to provide all or any part of any Term Loan Advance that such Granting Lender would otherwise be obligated to make pursuant to this Agreement, provided that (i) nothing herein shall constitute a commitment by any SPC to fund any Term Loan Advance, and (ii) if an SPC elects not to exercise such option or otherwise fails to make all or any part of such Term Loan Advance, the Granting Lender shall be obligated to make such Term Loan Advance pursuant to the terms hereof. The making of an Advance by an SPC hereunder shall utilize the Term Loan Commitment of the Granting Lender to the same extent, and as if, such Term Loan Advance were made by such Granting Lender. Each party hereto hereby agrees that (i) no SPC shall be liable for any indemnity or similar payment obligation under this Agreement for which a Lender would be liable, (ii) no SPC shall be entitled to the benefits of Sections 2.09 and 2.11 (or any other increased costs protection provision) and (iii) the Granting Bank shall for all purposes, including the approval of any amendment or waiver of any provision of any Loan Document, remain the Lender of record hereunder. In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior Debt of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency, or liquidation proceeding under the laws of the United States or any State thereof. Notwithstanding anything to the contrary contained in this Agreement, any SPC may (i) with notice to, but without prior consent of, BMCA and the Administrative Agent and with the payment of a processing fee of $500 and without paying any processing fee therefor, assign all or any portion of its interest in any Term Loan Advance to the Granting Lender and (ii) disclose on a confidential basis any non-public information relating to its funding of Term Loan Advance to any rating agency, commercial paper dealer or provider of any surety or guarantee or credit or liquidity enhancement to such SPC. This subsection (k) may not be amended without the prior written consent of each Granting Lender, all or any part of whose Term Loan Advances are being funded by the SPC at the time of such amendment.

Appears in 1 contract

Samples: Credit Agreement (Glenoit Asset Corp)

Assignments and Participations. (a) ~~Each~~ Any Lender ~~may~~(i) may (and in the case of clause (B) below, ~~upon at least five Business Days’ notice to such Lender and the Administrative Agent,~~ shall) assign to one or more Eligible Assignees or an Affiliate of a Lender that is not an Eligible Assignee all or a portion of its rights and obligations under this Agreement (~~including~~ including, without limitation, all or a portion of its ~~Term Loan~~ Commitment, the ~~Term Loan~~ Advances owing to it and the Note or Notes held by it); provided, however, that (A) except in the case of an assignment to an Eligible Assignee that is a Lender or an Affiliate of a Lender, each of the Administrative Agent and, unless a Default shall have occurred and be continuing at the time such assignment is effected, the Borrower must give their prior consent to such assignment (which consent shall not be unreasonably withheld or delayed) and (B) if the assignment is demanded by the Borrower pursuant to Section 2.17, no Default shall have occurred and be continuing at the time of such demand and such assignment and the Borrower shall have given at least five Business Days’ notice of such demand to the applicable Lender and the Administrative Agent; provided, however, that (i) each such assignment shall be of a uniform, and not a varying, percentage of all rights and obligations under ~~this Agreement~~and in respect of the Facility, (ii) except in the case of an assignment to a Person that, immediately prior to such assignment, was a Lender, an Affiliate of any Lender or an ~~Approved Fund of any Lender or an~~ assignment of all of a Lender’s rights and obligations under this Agreement, the aggregate amount of the ~~Term Loan Commitments or Term Loan Advances~~ Commitment being assigned to such Eligible Assignee pursuant to such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than the lesser of $5,000,000 and 5% of the aggregate amount (or such lesser amount as shall be approved by the Administrative Agent and, so long as no Default shall have occurred and be continuing at the time of effectiveness of such assignment, ~~BMCA)~~the Borrower) of the Commitment being assigned, (iii) each such assignment shall be to an Eligible ~~Assignee~~Assignee or an Affiliate of a Lender, (iv) ~~except in~~ each such assignment made as a result of a demand by the ~~case of an assignment by a Person that, immediately prior~~ Borrower pursuant to ~~such assignment, was a Lender, to one of its Affiliates, no such assignments~~ Section 2.17 shall be ~~permitted without~~ arranged by the ~~consent of~~ Borrower after consultation with the Administrative Agent ~~and~~and shall be either an assignment of all of the rights and obligations of the assigning Lender under this Agreement or an assignment of a portion of such rights and obligations made concurrently with another such assignment or other such assignments that together cover all of the rights and obligations of the assigning Lender under this Agreement, ~~so long~~ (v) no Lender shall be obligated to make any such assignment (whether as ~~no Default~~ a result of a demand by the Borrower pursuant to Section 2.17 or otherwise) unless and until such Lender shall have ~~occurred and be continuing~~ received one or more payments from either the Borrower or one or more Eligible Assignees in an aggregate amount at least equal to the ~~time~~ aggregate outstanding principal amount of ~~effectiveness~~ the Advances owing to such Lender, together with accrued interest thereon to the date of payment of such ~~assignment~~principal amount and all other amounts payable to such Lender under this Agreement, ~~BMCA (in each case, which consents shall not be unreasonably withheld)~~ and (vvi) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together with any Note or Notes subject to such assignment and a processing and recordation fee of $3,500; provided, however, the Borrower shall have no liability for the payment of such fee except that for each such assignment made as a result of a demand by the Borrower pursuant to Section 2.17, the Borrower shall pay to the Administrative Agent the applicable processing and recordation fee. (b) Upon such execution, delivery, acceptance and recording, from and after the effective date specified in such 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, have the rights and obligations of a Lender hereunder and (ii) the Lender assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (other than its rights under Sections ~~2.09~~2.10, ~~2.11~~ 2.12 and 8.04 to the extent any claim thereunder relates to an event arising prior to such assignment) and be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all of the remaining portion of an assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto). (c) By executing and delivering an Assignment and Acceptance, each Lender assignor thereunder and each assignee thereunder confirm to and agree with each other and the other parties thereto and hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with any Loan Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value of, or the perfection or priority of any ~~lien or security interest~~ Lien created or purported to be created under or in connection with, any Loan Document or any other instrument or document furnished pursuant thereto; (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of the General Partner, any Loan Party or the performance or observance by any Loan Party of any of its obligations under any Loan Document or any other instrument or document furnished pursuant thereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 4.01 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) such assignee will, independently and without reliance upon ~~any~~ the Administrative Agent, such assigning Lender or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) such assignee confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes ~~each~~ the Administrative Agent to take such action as agent on its behalf and to exercise such powers and discretion under the Loan Documents as are delegated to ~~such~~ the Administrative Agent by the terms hereof and thereof, together with such powers and discretion as are reasonably incidental thereto; and (vii) such assignee agrees that it will perform in accordance with their terms all of the obligations that by the terms of this Agreement are required to be performed by it as a Lender. (d) The Administrative Agent ~~acting for this purpose (but only for this purpose) as the agent of the Borrowers,~~ shall maintain at its address referred to in Section 8.02 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 Lenders and the ~~Term Loan~~ Commitment of, and principal amount of the ~~Term Loan Advances~~ Advance 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 ~~Borrowers~~Borrower, the ~~Agents~~ Administrative Agent and the Lenders ~~shall~~ 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~~ Borrower or ~~any~~ the Administrative Agent or any Lender at any reasonable time and from time to time upon reasonable prior notice. (e) Notwithstanding anything to the contrary contained in clause (b) above, the Term Loan Advances (including the Notes evidencing such Term Loan Advances) are registered obligations and the right, title, and interest of the Lenders and their assignees in and to such Term Loan Advances shall be transferable only upon notation of such transfer in the Register. A Note shall only evidence the Lender’s or an assignee’s right title and interest in and to the related Term Loan Advance, and in no event is any such Note to be considered a bearer instrument or obligation. This Section 8.07 shall be construed so that the Term Loan Advances are at all times maintained in “registered form” within the meaning of sections 163(f), 871(h)(2) and 881(c)(2) of the Internal Revenue Code and any related regulations (or any successor provisions of the Internal Revenue Code or such regulations). Solely for purposes of this and for tax purposes only, the Administrative Agent shall act as each Borrower’s agent for purposes of maintaining such notations of transfer in the Register. (f) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee, together with any Note or Notes subject to such assignment, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit C hereto, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to ~~BMCA~~ the Borrower and each other Agent. In the case of any assignment by a Lender, within five Business Days after its receipt of such notice, the ~~Borrowers~~Borrower, at ~~their~~ its own expense, shall, if new Notes are requested by the ~~assignee~~applicable assignee and/or assignor, execute and deliver to the Administrative Agent in exchange for the surrendered Note or Notes ~~an amended and restated~~ a new Note ~~(which shall be marked “Amended and Restated”)~~ to the order of such Eligible Assignee in an amount equal to the ~~Term Loan Commitment~~ portion of the Borrowing assumed by it ~~under each Facility~~ pursuant to such Assignment and Acceptance and, if any assigning Lender has retained a ~~Term Loan~~ Commitment ~~hereunder under such Facility and has requested~~ hereunder, a ~~replacement Note, an amended and restated~~ new Note to the order of such assigning Lender in an amount equal to the ~~Term Loan Commitment~~ portion of the Borrowing retained by it hereunder. Such ~~amended and restated~~ 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 Assignment and Acceptance and shall otherwise be in substantially the form of Exhibit A hereto. (gf) Each Lender may sell participations to one or more Persons (other than any Loan Party or any of its Affiliates) in or to all or a portion of its rights and obligations under this Agreement (~~including~~ including, without limitation, all or a portion of its ~~Term Loan Commitments~~Commitment, the ~~Term Loan Advances~~ Advance owing to it and the Note or Notes (if any) held by it); provided, however, that (i) such ~~Lender’s~~ Lender obligations under this Agreement (~~including~~ including, without limitation, its ~~Term Loan Commitments~~Commitment) shall remain unchanged, (ii) 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, (iv) the ~~Borrowers~~Borrower, the ~~Agents~~ Administrative Agent and the other ~~Lenders~~ Lender shall continue to deal solely and directly with such Lender in connection with such ~~Lender’s~~ Lender rights and obligations under this Agreement and (v) no participant under any such participation shall have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by or on behalf of any Loan Party therefrom, except to the extent that such amendment, waiver or consent ~~requires~~ would reduce the ~~consent~~ principal of, or interest on, the Notes or other amounts payable hereunder, in each case to the extent subject to such participation, postpone any date fixed for any payment of ~~all Lenders~~principal of, or interest on, the Notes or other amounts payable hereunder, in each case to the extent subject to such participation, or release any Subsidiary Guarantor. (hg) Any Lender may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section 8.07, disclose to the assignee or participant or proposed assignee or participant any information relating to the ~~Borrowers~~ Borrower furnished to such Lender by or on behalf of the ~~Borrowers~~Borrower; provided, however, 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 (as defined in Section 8.09) received by it from such Lender in accordance with ~~the terms of~~ Section 8.09. (ih) Notwithstanding any other provision set forth in this Agreement, any Lender may at any time ~~create a security interest in~~ pledge or assign all or any portion of its rights under this Agreement ~~(including the Term Loan Advances owing~~ to ~~it and the Note or Notes held by it)~~ secure obligations of such Lender, including, without limitation, any pledge in favor of any Federal Reserve Bank in accordance with Regulation A of the Board of Governors of the Federal Reserve System~~. (j) Notwithstanding anything to the contrary contained herein, any Lender~~ ; provided that is a fund that invests in bank loans may create a security interest in all or any portion of the Term Loan Advances owing to it and the Note or Notes held by it to the trustee for holders of obligations owed, or securities issued, by such fund as security for such obligations or securities, provided, that unless and until such trustee actually becomes a Lender in compliance with the other provisions of this Section 8.07, (i) no such pledge or assignment shall release ~~the pledging~~ a Lender from any of its obligations ~~under the Loan Documents and (ii)~~ hereunder or substitute any such ~~trustee shall not be entitled to exercise any of the rights of~~ pledgee or assignee for such Lender as a ~~Lender under the Loan Documents even though such trustee may have acquired ownership rights with respect to the pledged interest through foreclosure or otherwise~~party hereto. (k) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Lender”) may grant to a special purpose funding vehicle identified as such in writing from time to time by the Granting Lender to the Administrative Agent and BMCA (an “SPC”) the option to provide all or any part of any Term Loan Advance that such Granting Lender would otherwise be obligated to make pursuant to this Agreement, provided that (i) nothing herein shall constitute a commitment by any SPC to fund any Term Loan Advance, and (ii) if an SPC elects not to exercise such option or otherwise fails to make all or any part of such Term Loan Advance, the Granting Lender shall be obligated to make such Term Loan Advance pursuant to the terms hereof. The making of an Advance by an SPC hereunder shall utilize the Term Loan Commitment of the Granting Lender to the same extent, and as if, such Term Loan Advance were made by such Granting Lender. Each party hereto hereby agrees that (i) no SPC shall be liable for any indemnity or similar payment obligation under this Agreement for which a Lender would be liable, (ii) no SPC shall be entitled to the benefits of Sections 2.09 and 2.11 (or any other increased costs protection provision) and (iii) the Granting Bank shall for all purposes, including the approval of any amendment or waiver of any provision of any Loan Document, remain the Lender of record hereunder. In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior Debt of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency, or liquidation proceeding under the laws of the United States or any State thereof. Notwithstanding anything to the contrary contained in this Agreement, any SPC may (i) with notice to, but without prior consent of, BMCA and the Administrative Agent and with the payment of a processing fee of $500 and without paying any processing fee therefor, assign all or any portion of its interest in any Term Loan Advance to the Granting Lender and (ii) disclose on a confidential basis any non-public information relating to its funding of Term Loan Advance to any rating agency, commercial paper dealer or provider of any surety or guarantee or credit or liquidity enhancement to such SPC. This subsection (k) may not be amended without the prior written consent of each Granting Lender, all or any part of whose Term Loan Advances are being funded by the SPC at the time of such amendment.

Appears in 1 contract

Samples: Term Loan Agreement (Alliance Resource Partners Lp)

Common use of Assignments and Participations Clause in Contracts