Assignments by Lenders. (i) Any Lender may assign all, or if less than all, a fixed portion, of its Loans, LC Participations, Swing Loan Participations and/or Commitments and its rights and obligations hereunder to one or more Eligible Assignees, each of which shall become a party to this Agreement as a Lender by execution of an Assignment Agreement; provided, however, that: (A) except in the case of (x) an assignment of the entire remaining amount of the assigning Lender’s Loans and/or Commitments or (y) an assignment to another Lender, an Affiliate of such Lender or an Approved Fund with respect to such Lender, the aggregate amount of the Commitment so assigned (which for this purpose includes the Loans outstanding thereunder) shall not be less than $2,500,000 (unless otherwise mutually agreed upon by the Borrower and the Administrative Agent); (B) in the case of any assignment to an Eligible Assignee at the time of any such assignment the Lender Register shall be deemed modified to reflect the Commitments of such new Lender and of the existing Lenders; (C) upon surrender of the old Notes, if any, upon request of the new Lender, new Notes will be issued, at the Borrower’s expense, to such new Lender and to the assigning Lender, to the extent needed to reflect the revised Commitments; (D) unless waived by the Administrative Agent, except in the case of an assignment to another Lender, an Affiliate of such Lender or an Approved Fund with respect to such Lender, or any Lenders in connection with the initial syndication of the Credit Facilities on or after the Closing Date, the Administrative Agent shall receive at the time of each such assignment, from the assigning or assignee Lender, the payment of a non-refundable assignment fee of $3,500; and (E) any such assignment shall require the prior written consent (such consent (except with respect to assignments to competitors of the Borrower) not to be unreasonably withheld or delayed) of: (1) the Borrower; provided that no consent of the Borrower shall be required for an assignment (x) by a Lender to any Lender or a U.S. based-Affiliate of any Lender, (y) by a Lender to an Approved Fund and (z) during a Specified Event of Default (unless such assignment is to a Disqualified Lender). Notwithstanding anything in this Section 11.06 to the contrary, if the Borrower has not given the Administrative Agent written notice of its objection to an assignment of Loans within fifteen (15) Business Days after written notice of such assignment, the Borrower shall be deemed to have consented to such assignment; (2) the Administrative Agent; provided that no consent of the Administrative Agent shall be required for an assignment of a Loan to a Lender, an Affiliate of a Lender or an Approved Fund; and (3) each LC Issuer and Swing Line Lender; provided that no consent of an LC Issuer or Swing Line Lender shall be required for an assignment of a Loan to a Lender, an Affiliate of a Lender or an Approved Fund. (ii) To the extent of any assignment pursuant to this subsection (c), the assigning Lender shall be relieved of its obligations hereunder with respect to its assigned Commitments. (iii) At the time of each assignment pursuant to this subsection (c) to a Person that is not already a Lender hereunder, the respective assignee Lender shall provide to the Borrower and the Administrative Agent the applicable Internal Revenue Service Forms (and any necessary additional documentation) described in Section 3.02(e). (iv) With respect to any Lender, the transfer of any Commitment of such Lender and the rights to the principal of, and interest on, any Loan made pursuant to such Commitment shall not be effective until such transfer is recorded on the Lender Register maintained by the Administrative Agent (on behalf of and acting solely for this purpose as a non-fiduciary agent of the applicable Borrower) with respect to ownership of such Commitment and Loans, including the name and address of the Lenders and the principal amount of the Loans (and stated interest thereon). Prior to such recordation, all amounts owing to the transferor with respect to such Commitment and Loans shall remain owing to the transferor. The registration of assignment or transfer of all or part of any Commitments and Loans shall be recorded by the Administrative Agent on the Lender Register only upon the acceptance by the Administrative Agent of a properly executed and delivered Assignment Agreement pursuant to this subsection (c). The entries in the Lender Register shall be conclusive absent manifest error, and the Borrower, the Administrative Agent and each Lender shall treat each person whose name is recorded in the Lender Register as a Lender hereunder for all purposes of this Agreement notwithstanding any notice to the contrary. The Lender Register shall be available for the inspection by the Borrower and any Lender (solely with respect to its own interest in any Loan or Commitment) at any reasonable time and from time to time upon reasonable prior notice. (v) [Reserved]. (vi) Nothing in this Section 11.06(c) shall prevent or prohibit (A) any Lender that is a bank, trust company or other financial institution from pledging its Notes or Loans to a Federal Reserve Bank or to any Person that extends credit to such Lender in support of borrowings made by such Lender from such Federal Reserve Bank or such other Person, or (B) any Lender that is a trust, limited liability company, partnership or other investment company from pledging its Notes or Loans to a trustee or agent for the benefit of holders of certificates or debt securities issued by it. No such pledge, or any assignment pursuant to or in lieu of an enforcement of such a pledge, shall relieve the transferor Lender from its obligations hereunder. In connection with any assignment of rights and obligations of any Defaulting Lender hereunder, no such assignment shall be effective unless and until, in addition to the other conditions thereto set forth herein, the parties to the assignment shall make such additional payments to the Administrative Agent in an aggregate amount sufficient, upon distribution thereof as appropriate (which may be outright payment, purchases by the assignee of participations or sub-participations, or other compensating actions, including funding, with the consent of the Borrower and the Administrative Agent, the applicable pro rata share of Loans previously requested but not funded by the Defaulting Lender, to each of which the applicable assignee and assignor hereby irrevocably consent), to (x) pay and satisfy in full all payment liabilities then owed by such Defaulting Lender to the Administrative Agent or any Lender hereunder (and interest accrued thereon) and (y) acquire (and fund as appropriate) its full pro rata share of all Loans and participations in Letters of Credit and Swing Loans in accordance with its Applicable Percentage. Notwithstanding the foregoing, in the event that any assignment of rights and obligations of any Defaulting Lender hereunder shall become effective under applicable law without compliance with the provisions of this paragraph, then the assignee of such interest shall be deemed to be a Defaulting Lender for all purposes of this Agreement until such compliance occurs.
Appears in 6 contracts
Samples: Credit Agreement (Builders FirstSource, Inc.), Credit Agreement (Builders FirstSource, Inc.), Credit Agreement (Builders FirstSource, Inc.)
Assignments by Lenders. (i) Any Subject to the conditions set forth in paragraph (b)(ii) below, any Lender may assign all, or if less than all, a fixed portion, of its Loans, LC Participations, Swing Loan Participations and/or Commitments and its rights and obligations hereunder delegate to one or more Eligible Assignees, each Assignees all or a portion of which shall become a party to its rights and obligations under this Agreement as (including all or a Lender by execution portion of an Assignment Agreement; provided, however, that:
(A) except in the case of (x) an assignment of the entire remaining amount of the assigning Lender’s Loans and/or Commitments or (y) an assignment to another Lender, an Affiliate of such Lender or an Approved Fund with respect to such Lender, the aggregate amount of the its Commitment so assigned (which for this purpose includes and the Loans outstanding thereunder) shall not be less than $2,500,000 (unless otherwise mutually agreed upon by the Borrower and the Administrative Agent);
(B) in the case of any assignment to an Eligible Assignee at the time of any such assignment the Lender Register shall be deemed modified owing to reflect the Commitments of such new Lender and of the existing Lenders;
(Cit) upon surrender of the old Notes, if any, upon request of the new Lender, new Notes will be issued, at the Borrower’s expense, to such new Lender and to the assigning Lender, to the extent needed to reflect the revised Commitments;
(D) unless waived by the Administrative Agent, except in the case of an assignment to another Lender, an Affiliate of such Lender or an Approved Fund with respect to such Lender, or any Lenders in connection with the initial syndication of the Credit Facilities on or after the Closing Date, the Administrative Agent shall receive at the time of each such assignment, from the assigning or assignee Lender, the payment of a non-refundable assignment fee of $3,500; and
(E) any such assignment shall require the prior written consent (such consent (except with respect to assignments to competitors of the Borrower) not to be unreasonably withheld withheld, conditioned or delayed) of:
of (1A) the Borrower; provided that no consent of the Borrower shall be required (1) for an assignment (x) by and delegation to a Lender, an Affiliate of a Lender to any Lender or a U.S. based-Affiliate of any Lender, (y) by a Lender to an Approved Fund and (z2) during a Specified if an Event of Default under clause (unless such a), (b), (h) or (i) of Section 7.01 has occurred and is continuing, for any other assignment is to a Disqualified Lender). Notwithstanding anything in this Section 11.06 to the contrary, if the Borrower has not given the Administrative Agent written notice of its objection to an assignment of Loans within fifteen (15) Business Days after written notice of such assignment, and delegation; provided further that the Borrower shall be deemed to have consented to any such assignment;
assignment and delegation unless it shall object thereto by written notice to the Administrative Agent within ten Business Days after having received notice thereof, (2B) the Administrative Agent; provided that no consent of the Administrative Agent shall be required for an assignment and delegation of all or any portion of a Term Loan to a Lender, an Affiliate of a Lender or an Approved Fund; and, and (C) each Issuing Bank, in the case of any assignment and delegation of all or a portion of a Revolving Commitment or any Lender’s obligations in respect of its LC Exposure.
(3ii) each LC Issuer Assignments and Swing Line Lender; provided that no consent delegations shall be subject to the following additional conditions: (A) except in the case of an LC Issuer or Swing Line Lender shall be required for an assignment of a Loan and delegation to a Lender, an Affiliate of a Lender or an Approved Fund.
(ii) To Fund or an assignment and delegation of the extent entire remaining amount of the assigning Lender’s Commitment or Loans of any assignment pursuant to this subsection (c)Class, the amount of the Commitment or Loans of the assigning Lender shall be relieved subject to each such assignment and delegation (determined as of its obligations hereunder the trade date specified in the Assignment and Assumption with respect to its assigned Commitments.
(iiisuch assignment and delegation or, if no trade date is so specified, as of the date the Assignment and Assumption with respect to such assignment and delegation is delivered to the Administrative Agent) At shall not be less than $5,000,000 or, in the time case of Term Loans, $1,000,000, unless each assignment pursuant to this subsection (c) to a Person that is not already a Lender hereunder, the respective assignee Lender shall provide to of the Borrower and the Administrative Agent otherwise consents (such consent not to be unreasonably withheld, conditioned or delayed); provided that no such consent of the Borrower shall be required if an Event of Default has occurred and is continuing, (B) each partial assignment and delegation shall be made as an assignment and delegation of a proportionate part of all the assigning Lender’s rights and obligations under this Agreement; provided that this clause (B) shall not be construed to prohibit the assignment and delegation of a proportionate part of all the assigning Lender’s rights and obligations in respect of one Class of Commitments or Loans, (C) the parties to each assignment and delegation shall execute and deliver to the Administrative Agent an Assignment and Assumption, together with a processing and recordation fee of $3,500 (which fee may be waived or reduced in the sole discretion of the Administrative Agent); provided that (1) only one such processing and recordation fee shall be payable in the event of simultaneous assignments and delegations from any Lender or its Approved Funds to one or more other Approved Funds of such Lender, (2) no such fee shall apply to an assignment and delegation by a Lender to its Affiliate and (3) with respect to any assignment and delegation pursuant to Section 2.18(b) or 9.02(c), the parties hereto agree that such assignment and delegation may be effected pursuant to an Assignment and Assumption executed by the Borrower, the Administrative Agent and the assignee and that the Lender required to make such assignment and delegation need not be a party thereto, and (D) the assignee, if it shall not be a Lender, shall deliver to the Administrative Agent any tax forms required by Section 2.16(f) and an Administrative Questionnaire in which the assignee designates one or more credit contacts to whom all syndicate-level information (which may contain MNPI) will be made available and who may receive such information in accordance with the assignee’s compliance procedures and applicable Internal Revenue Service Forms law, including Federal, State and foreign securities laws.
(iii) Subject to acceptance and recording thereof pursuant to paragraph (b)(v) of this Section, from and after the effective date specified in each Assignment and Assumption, the assignee thereunder shall be a party hereto and, to the extent of the interest assigned and delegated by such Assignment and Assumption, have the rights and obligations of a Lender under this Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned and delegated by such Assignment and Assumption, be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption covering all the assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto but shall continue to be entitled to the benefits of (and subject to the obligations and limitations of) Sections 2.14, 2.15, 2.16 and 9.03 and to any necessary additional documentation) described fees payable hereunder that have accrued for such Lender’s account but have not yet been paid). Any assignment, delegation or other transfer by a Lender of rights or obligations under this Agreement that does not comply with this Section shall be treated for purposes of this Agreement as a sale by such Lender of a participation in such rights and obligations in accordance with Section 3.02(e9.04(c).
(iv) With respect to any LenderThe Administrative Agent, the transfer of any Commitment of such Lender and the rights to the principal of, and interest on, any Loan made pursuant to such Commitment shall not be effective until such transfer is recorded on the Lender Register maintained by the Administrative Agent (on behalf of and acting solely for this purpose as a non-fiduciary agent of the applicable Borrower) with respect , shall maintain at one of its offices a copy of each Assignment and Assumption delivered to ownership of such Commitment it and Loans, including a register for the name and address recordation of the Lenders names and addresses of the Lenders, and the Commitment of, and principal amount of the Loans (and stated interest thereon). Prior to such recordationon) the Loans and LC Disbursements owing to, all amounts owing each Lender pursuant to the transferor with respect terms hereof from time to such Commitment and Loans shall remain owing to time (the transferor. The registration of assignment or transfer of all or part of any Commitments and Loans shall be recorded by the Administrative Agent on the Lender Register only upon the acceptance by the Administrative Agent of a properly executed and delivered Assignment Agreement pursuant to this subsection (c“Register”). The entries in the Lender Register shall be conclusive absent manifest error, and the Borrower, the Administrative Agent Agent, the Issuing Banks and each Lender the Lenders shall treat each person Person whose name is recorded in the Lender Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement Agreement, notwithstanding any notice to the contrary. The Lender Register shall be available for the inspection by the Borrower and any Lender (solely with respect to its own interest in Issuing Bank or any Loan or Commitment) Lender, at any reasonable time and from time to time upon reasonable prior notice.
(v) [Reserved]Upon receipt by the Administrative Agent of a duly completed Assignment and Assumption executed by an assigning Lender and an assignee, the assignee’s completed Administrative Questionnaire and any tax forms required by Section 2.16(f) (unless the assignee shall already be a Lender hereunder), the processing and recordation fee referred to in paragraph (b) of this Section and any written consent to such assignment and delegation required by paragraph (b) of this Section, the Administrative Agent shall accept such Assignment and Assumption and record the information contained therein in the Register; provided that the Administrative Agent shall not be required to accept such Assignment and Assumption or so record the information contained therein if the Administrative Agent reasonably believes that such Assignment and Assumption lacks any written consent required by this Section or is otherwise not in proper form, it being acknowledged that the Administrative Agent shall have no duty or obligation (and shall incur no liability) with respect to obtaining (or confirming the receipt) of any such written consent or with respect to the form of (or any defect in) such Assignment and Assumption, any such duty and obligation being solely with the assigning Lender and the assignee. No assignment or delegation shall be effective for purposes of this Agreement unless it has been recorded in the Register as provided in this paragraph and, following such recording, unless otherwise determined by the Administrative Agent (such determination to be made in the sole discretion of the Administrative Agent, which determination may be conditioned on the consent of the assigning Lender and the assignee), shall be effective notwithstanding any defect in the Assignment and Assumption relating thereto. Each assigning Lender and the assignee, by its execution and delivery of an Assignment and Assumption, shall be deemed to have represented to the Administrative Agent that all written consents required by this Section with respect thereto (other than the consent of the Administrative Agent) have been obtained and that such Assignment and Assumption is otherwise duly completed and in proper form, and each assignee, by its execution and delivery of an Assignment and Assumption, shall be deemed to have represented to the assigning Lender and the Administrative Agent that such assignee is an Eligible Assignee.
(vi) Nothing The words “execution”, “signed”, “signature” and words of like import in this Section 11.06(c) shall prevent or prohibit (A) any Lender that is a bank, trust company or other financial institution from pledging its Notes or Loans to a Federal Reserve Bank or to any Person that extends credit to such Lender in support of borrowings made by such Lender from such Federal Reserve Bank or such other Person, or (B) any Lender that is a trust, limited liability company, partnership or other investment company from pledging its Notes or Loans to a trustee or agent for the benefit of holders of certificates or debt securities issued by it. No such pledge, or any assignment pursuant to or in lieu of an enforcement of such a pledge, shall relieve the transferor Lender from its obligations hereunder. In connection with any assignment of rights Assignment and obligations of any Defaulting Lender hereunder, no such assignment shall be effective unless and until, in addition to the other conditions thereto set forth herein, the parties to the assignment shall make such additional payments to the Administrative Agent in an aggregate amount sufficient, upon distribution thereof as appropriate (which may be outright payment, purchases by the assignee of participations or sub-participations, or other compensating actions, including funding, with the consent of the Borrower and the Administrative Agent, the applicable pro rata share of Loans previously requested but not funded by the Defaulting Lender, to each of which the applicable assignee and assignor hereby irrevocably consent), to (x) pay and satisfy in full all payment liabilities then owed by such Defaulting Lender to the Administrative Agent or any Lender hereunder (and interest accrued thereon) and (y) acquire (and fund as appropriate) its full pro rata share of all Loans and participations in Letters of Credit and Swing Loans in accordance with its Applicable Percentage. Notwithstanding the foregoing, in the event that any assignment of rights and obligations of any Defaulting Lender hereunder shall become effective under applicable law without compliance with the provisions of this paragraph, then the assignee of such interest Assumption shall be deemed to include electronic signatures or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a Defaulting Lender manually executed signature or the use of a paper-based recordkeeping system, as applicable, to the extent and as provided for all purposes of this Agreement until such compliance occursin any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act or any other similar State laws based on the Uniform Electronic Transactions Act.
Appears in 4 contracts
Samples: Credit Agreement (YETI Holdings, Inc.), Credit Agreement (YETI Holdings, Inc.), Credit Agreement (YETI Holdings, Inc.)
Assignments by Lenders. (i) Any Lender may assign all, or if less than all, a fixed portion, of its Loans, LC Participations, Swing Loan Participations Loans and/or Commitments and its rights and obligations hereunder to one or more Eligible Assignees, each of which shall become a party to this Agreement as a Lender by execution of an Assignment Agreement; provided, however, that:
(A) except in the case of (x) an assignment of the entire remaining amount of the assigning Lender’s Loans and/or Commitments or (y) an assignment to another Lender, an Affiliate of such Lender or an Approved Fund with respect to such Lender, the aggregate amount of the Commitment so assigned (which for this purpose includes the Loans outstanding thereunder) shall not be less than $2,500,000 (unless otherwise mutually agreed upon by the Borrower and the Administrative Agent)1,000,000;
(B) in the case of any assignment to an Eligible Assignee at the time of any such assignment the Lender Register shall be deemed modified to reflect the Commitments of such new Lender and of the existing Lenders;
(C) upon surrender of the old Notes, if any, upon request of the new Lender, new Notes will be issued, at the Borrower’s expense, to such new Lender and to the assigning Lender, to the extent needed to reflect the revised Commitments;; and
(D) unless waived by the Administrative Agent, except in the case of an assignment to another Lender, an Affiliate of such Lender or an Approved Fund with respect to such Lender, or any Lenders in connection with the initial syndication of the Credit Facilities on or after the Closing Date, the Administrative Agent shall receive at the time of each such assignment, from the assigning or assignee Lender, the payment of a non-refundable assignment fee of $3,500; and
(E) any such assignment shall require the prior written consent (such consent (except with respect to assignments to competitors of the Borrower) not to be unreasonably withheld or delayed) of:
(1) the Borrower; provided that no consent of the Borrower shall be required for an assignment (x) by a Lender to any Lender or a U.S. based-Affiliate of any Lender, (y) by a Lender to an Approved Fund and (z) during a Specified Event of Default (unless such assignment is to a Disqualified Lender). Notwithstanding anything in this Section 11.06 to the contrary, if the Borrower has not given the Administrative Agent written notice of its objection to an assignment of Loans within fifteen (15) Business Days after written notice of such assignment, the Borrower shall be deemed to have consented to such assignment;
(2) the Administrative Agent; provided that no consent of the Administrative Agent shall be required for an assignment of a Loan to a Lender, an Affiliate of a Lender or an Approved Fund; and
(3) each LC Issuer and Swing Line Lender; provided that no consent of an LC Issuer or Swing Line Lender shall be required for an assignment of a Loan to a Lender, an Affiliate of a Lender or an Approved Fund.
(ii) To the extent of any assignment pursuant to this subsection subpart (c), the assigning Lender shall be relieved of its obligations hereunder with respect to its assigned CommitmentsCommitments provided, that except to the extent otherwise expressly agreed by the affected parties, no assignment by a Defaulting Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender’s having been a Defaulting Lender.
(iii) At the time of each assignment pursuant to this subsection subpart (c) ), to a Person that is not already a Lender hereunder, the respective assignee Lender shall provide to the Borrower and the Administrative Agent the applicable Internal Revenue Service Forms (and any necessary additional documentation) described in Section 3.02(e3.03(g).
(iv) With respect to any Lender, the transfer of any Commitment of such Lender and the rights to the principal of, and interest on, any Loan made pursuant to such Commitment shall not be effective until such transfer is recorded on the Lender Register maintained by the Administrative Agent at its office in Cleveland, Ohio (on behalf of and acting solely for this purpose as a non-fiduciary agent of the applicable Borrower) with respect to ownership of such Commitment and Loans, including the name and address of the Lenders and the principal amount of the Loans (and stated interest thereon). Prior to such recordation, all amounts owing to the transferor with respect to such Commitment and Loans shall remain owing to the transferor. The registration of assignment or transfer of all or part of any Commitments and Loans shall be recorded by the Administrative Agent on the Lender Register only upon the acceptance by the Administrative Agent of a properly executed and delivered Assignment Agreement pursuant to this subsection subpart (c). The entries in the Lender Register shall be conclusive absent manifest error, and the Borrower, the Administrative Agent and each Lender the Lenders shall treat each person Person whose name is recorded in the Lender Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement notwithstanding any notice to the contraryAgreement. The Lender Register shall be available for the inspection by the Lender or the Borrower and any Lender (solely with respect to its own interest in any Loan or Commitment) at any reasonable time and from time to time upon reasonable prior notice.
(v) [Reserved].
(vi) Nothing in this Section 11.06(c) shall prevent or prohibit (A) any Lender that is a bank, trust company or other financial institution from pledging its Notes or Loans to a Federal Reserve Bank or other central bank or to any Person that extends credit to such Lender in support of borrowings made by such Lender from such Federal Reserve Bank or other central bank or such other Person, or (B) any Lender that is a trust, limited liability company, partnership or other investment company from pledging its Notes or Loans to a trustee or agent for the benefit of holders of certificates or debt securities issued by it. No such pledge, or any assignment pursuant to or in lieu of an enforcement of such a pledge, shall relieve the transferor Lender from its obligations hereunder. .
(vi) In connection with any assignment of rights and obligations of any Defaulting Lender hereunder, no such assignment shall be effective unless and until, in addition to the other conditions thereto set forth herein, the parties to the assignment shall make such additional payments to the Administrative Agent in an aggregate amount sufficient, upon distribution thereof as appropriate (which may be outright payment, purchases by the assignee of participations or sub-participationssubparticipations, or other compensating actions, including funding, with the consent of the Borrower and the Administrative Agent, the applicable pro rata share of Loans previously requested but not funded by the Defaulting Lender, to each of which the applicable assignee and assignor hereby irrevocably consent), to (x) pay and satisfy in full all payment liabilities then owed by such Defaulting Lender to the Administrative Agent or any and each other Lender hereunder (and interest accrued thereon) ), and (y) acquire (and fund as appropriate) its full pro rata share of all Loans and participations in Letters of Credit and Swing Loans in accordance with its Applicable PercentageLoans. Notwithstanding the foregoing, in the event that any assignment of rights and obligations of any Defaulting Lender hereunder shall become effective under applicable law without compliance with the provisions of this paragraph, then the assignee of such interest shall be deemed to be a Defaulting Lender for all purposes of this Agreement until such compliance occurs.
Appears in 4 contracts
Samples: Credit Agreement (DigitalOcean Holdings, Inc.), Credit Agreement (DigitalOcean Holdings, Inc.), Second Amended and Restated Credit Agreement (DigitalOcean Holdings, Inc.)
Assignments by Lenders. (i) Any Lender may assign all, or if less than all, a fixed portion, of its Loans, LC Participations, Swing Loan Participations Loans and/or Commitments and its rights and obligations hereunder to one or more Eligible Assignees, each of which shall become a party to this Agreement as a Lender by execution of an Assignment Agreement; provided, however, that:
(A) except in the case of (x) an assignment of the entire remaining amount of the assigning Lender’s Loans and/or Commitments or (y) an assignment to another Lender, an Affiliate of such Lender or an Approved Fund with respect to such Lender, the aggregate amount of the Commitment so assigned (which for this purpose includes the Loans outstanding thereunder) shall not be less than $2,500,000 (unless otherwise mutually agreed upon by the Borrower and the Administrative Agent)5,000,000;
(B) in the case of any assignment to an Eligible Assignee at the time of any such assignment the Lender Register shall be deemed modified to reflect the Commitments of such new Lender and of the existing Lenders;
(C) upon surrender of the old Notes, if any, upon request of the new Lender, new Notes will be issued, at the Borrower’s expense, to such new Lender and to the assigning Lender, to the extent needed to reflect the revised Commitments;; and
(D) unless waived by the Administrative Agent, except in the case of an assignment to another Lender, an Affiliate of such Lender or an Approved Fund with respect to such Lender, or any Lenders in connection with the initial syndication of the Credit Facilities on or after the Closing Date, the Administrative Agent shall receive at the time of each such assignment, from the assigning or assignee Lender, the payment of a non-refundable assignment fee of $3,500; and
(E) any such assignment shall require the prior written consent (such consent (except with respect to assignments to competitors of the Borrower) not to be unreasonably withheld or delayed) of:
(1) the Borrower; provided that no consent of the Borrower shall be required for an assignment (x) by a Lender to any Lender or a U.S. based-Affiliate of any Lender, (y) by a Lender to an Approved Fund and (z) during a Specified Event of Default (unless such assignment is to a Disqualified Lender). Notwithstanding anything in this Section 11.06 to the contrary, if the Borrower has not given the Administrative Agent written notice of its objection to an assignment of Loans within fifteen (15) Business Days after written notice of such assignment, the Borrower shall be deemed to have consented to such assignment;
(2) the Administrative Agent; provided that no consent of the Administrative Agent shall be required for an assignment of a Loan to a Lender, an Affiliate of a Lender or an Approved Fund; and
(3) each LC Issuer and Swing Line Lender; provided that no consent of an LC Issuer or Swing Line Lender shall be required for an assignment of a Loan to a Lender, an Affiliate of a Lender or an Approved Fund.
(ii) To the extent of any assignment pursuant to this subsection subpart (c), the assigning Lender shall be relieved of its obligations hereunder with respect to its assigned CommitmentsCommitments provided, that except to the extent otherwise expressly agreed by the affected parties, no assignment by a Defaulting Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender’s having been a Defaulting Lender.
(iii) At the time of each assignment pursuant to this subsection subpart (c) ), to a Person that is not already a Lender hereunderhereunder and that is not a U.S. Person for Federal income tax purposes, the respective assignee Lender shall provide to the Borrower and the Administrative Agent the applicable Internal Revenue Service Forms (and any necessary additional documentation) described in Section 3.02(e3.03(g).
(iv) With respect to any Lender, the transfer of any Commitment of such Lender and the rights to the principal of, and interest on, any Loan made pursuant to such Commitment shall not be effective until such transfer is recorded on the Lender Register maintained by the Administrative Agent (on behalf of and acting solely for this purpose as a non-fiduciary agent of the applicable Borrower) with respect to ownership of such Commitment and Loans, including the name and address of the Lenders and the principal amount of the Loans (and stated interest thereon). Prior to such recordation, all amounts owing to the transferor with respect to such Commitment and Loans shall remain owing to the transferor. The registration of assignment or transfer of all or part of any Commitments and Loans shall be recorded by the Administrative Agent on the Lender Register only upon the acceptance by the Administrative Agent of a properly executed and delivered Assignment Agreement pursuant to this subsection subpart (c). The entries in the Lender Register shall be conclusive absent manifest error, and the Borrower, the Administrative Agent and each Lender shall treat each person whose name is recorded in the Lender Register as a Lender hereunder for all purposes of this Agreement notwithstanding any notice to the contrary. The Lender Register shall be available for the inspection by the Borrower and any Lender (solely with respect to its own interest in any Loan or Commitment) at any reasonable time and from time to time upon reasonable prior notice.
(v) [Reserved].
(vi) Nothing in this Section 11.06(c) shall prevent or prohibit (A) any Lender that is a bank, trust company or other financial institution from pledging its Notes or Loans to a Federal Reserve Bank or to any Person that extends credit to such Lender in support of borrowings made by such Lender from such Federal Reserve Bank or such other Person, or (B) any Lender that is a trust, limited liability company, partnership or other investment company from pledging its Notes or Loans to a trustee or agent for the benefit of holders of certificates or debt securities issued by it. No such pledge, or any assignment pursuant to or in lieu of an enforcement of such a pledge, shall relieve the transferor Lender from its obligations hereunder. .
(vi) In connection with any assignment of rights and obligations of any Defaulting Lender hereunder, no such assignment shall be effective unless and until, in addition to the other conditions thereto set forth herein, the parties to the assignment shall make such additional payments to the Administrative Agent in an aggregate amount sufficient, upon distribution thereof as appropriate (which may be outright payment, purchases by the assignee of participations or sub-participationssubparticipations, or other compensating actions, including funding, with the consent of the Borrower and the Administrative Agent, the applicable pro rata share of Loans previously requested but not funded by the Defaulting Lender, to each of which the applicable assignee and assignor hereby irrevocably consent), to (x) pay and satisfy in full all payment liabilities then owed by such Defaulting Lender to the Administrative Agent or any and each other Lender hereunder (and interest accrued thereon) ), and (y) acquire (and fund as appropriate) its full pro rata share of all Loans and participations in Letters of Credit and Swing Loans in accordance with its Applicable Revolving Facility Percentage. Notwithstanding the foregoing, in the event that any assignment of rights and obligations of any Defaulting Lender hereunder shall become effective under applicable law without compliance with the provisions of this paragraph, then the assignee of such interest shall be deemed to be a Defaulting Lender for all purposes of this Agreement until such compliance occurs. Notwithstanding anything contained herein, no Lender may assign, sell, negotiate or otherwise transfer (a “Sale”) its Loans and/or Commitments to Advisor, PAC REIT, any other Credit Party or any Affiliate of any of the foregoing.
Appears in 3 contracts
Samples: Credit Agreement (Preferred Apartment Communities Inc), Credit Agreement (Preferred Apartment Communities Inc), Credit Agreement (Preferred Apartment Communities Inc)
Assignments by Lenders. (i) Any Lender may assign all, or if less than all, a fixed portion, of its Loans, LC Participations, Swing Loan Participations Loans and/or Commitments Commitment and its rights and obligations hereunder to one or more Eligible Assignees, each of which shall become a party to this Agreement as a Lender by execution of an Assignment Agreement; provided, however, provided that:
(Ai) except in the case of (x) an assignment of the entire remaining amount of the assigning Lender’s Loans and/or Commitments Commitment or (y) an assignment to another Lender, an Affiliate of such Lender or an Approved Fund with respect to such Lender, the aggregate amount of the each such assignment of such Commitment so assigned (which for this purpose includes the Loans outstanding thereunder) ), shall not be less than $2,500,000 5,000,000 (unless otherwise mutually agreed upon by the Borrower and the Administrative Agentor, if greater, in integral multiples of $1,000,000);,
(Bii) in the case of any assignment to an Eligible Assignee at the time of any such assignment the Lender Register shall be deemed modified to reflect the Commitments of such new Lender and of the existing Lenders;,
(Ciii) upon surrender of the old Notes, if any, upon request of the new Lender, new Notes will be issued, at the Borrower’s expense, to such new Lender and to the assigning Lender, such new Notes to be in conformity with the requirements of Section 2.4 (with appropriate modifications) to the extent needed to reflect the revised Commitments;,
(Div) unless waived by the Administrative Agent, except in the case of an assignment to another Lender, an Affiliate of such Lender or an Approved Fund with respect to such Lender, or any Lenders in connection with the initial syndication of the Credit Facilities on or after the Closing Date, the Administrative Agent shall receive at the time of each such assignment, from the assigning or assignee Lender, the payment of a non-refundable assignment fee of $3,500; , and
(E) any , provided further, that such transfer or assignment shall require will not be effective until the prior written consent (such consent (except with Assignment Agreement in respect to assignments to competitors of the Borrower) not to be unreasonably withheld or delayed) of:
(1) the Borrower; provided that no consent of the Borrower shall be required for an assignment (x) thereof is recorded by a Lender to any Lender or a U.S. based-Affiliate of any Lender, (y) by a Lender to an Approved Fund and (z) during a Specified Event of Default (unless such assignment is to a Disqualified Lender). Notwithstanding anything in this Section 11.06 to the contrary, if the Borrower has not given the Administrative Agent written notice of its objection to an assignment of Loans within fifteen (15) Business Days after written notice of such assignment, on the Borrower shall be deemed to have consented to such assignment;
(2) the Administrative Agent; Lender Register maintained by it as provided that no consent of the Administrative Agent shall be required for an assignment of a Loan to a Lender, an Affiliate of a Lender or an Approved Fund; and
(3) each LC Issuer and Swing Line Lender; provided that no consent of an LC Issuer or Swing Line Lender shall be required for an assignment of a Loan to a Lender, an Affiliate of a Lender or an Approved Fund.
(ii) herein. To the extent of any assignment pursuant to this subsection (c), Section 11.4(c) the assigning Lender shall be relieved of its obligations hereunder with respect to its assigned Commitments.
(iii) . At the time of each assignment pursuant to this subsection (cSection 11.4(c) to a Person that is not already a Lender hereunderhereunder and that is not a United States Person (as such term is defined in Section 7701(a)(30) of the Code) for Federal income tax purposes, the respective assignee Lender shall provide to the Borrower and the Administrative Agent the applicable appropriate Internal Revenue Service Forms (and any necessary additional documentationand, if applicable, an Exemption Certificate) described in Section 3.02(e4.5(b).
(iv. To the extent that an assignment of all or any portion of a Lender’s Commitment and related outstanding Obligations pursuant to this Section 11.4(c) With respect to any Lenderwould, at the transfer of any Commitment time of such assignment, result in increased costs under Section 4.5 from those being charged by the respective assigning Lender and the rights to the principal of, and interest on, any Loan made pursuant prior to such Commitment assignment, then the Borrower shall not be effective until obligated to pay such transfer is recorded on increased costs (although the Lender Register maintained by the Administrative Agent (on behalf of and acting solely for this purpose as a non-fiduciary agent Borrower shall be obligated to pay any other increased costs of the applicable Borrower) with respect to ownership of such Commitment and Loans, including type described above resulting from changes after the name and address date of the Lenders and the principal amount of the Loans (and stated interest thereonrespective assignment). Prior to such recordation, all amounts owing to the transferor with respect to such Commitment and Loans shall remain owing to the transferor. The registration of assignment or transfer of all or part of any Commitments and Loans shall be recorded by the Administrative Agent on the Lender Register only upon the acceptance by the Administrative Agent of a properly executed and delivered Assignment Agreement pursuant to this subsection (c). The entries in the Lender Register shall be conclusive absent manifest error, and the Borrower, the Administrative Agent and each Lender shall treat each person whose name is recorded in the Lender Register as a Lender hereunder for all purposes of this Agreement notwithstanding any notice to the contrary. The Lender Register shall be available for the inspection by the Borrower and any Lender (solely with respect to its own interest in any Loan or Commitment) at any reasonable time and from time to time upon reasonable prior notice.
(v) [Reserved].
(vi) Nothing in this Section 11.06(c11.4(c) shall prevent or prohibit (Ai) any Lender that is a bank, trust company or other financial institution from pledging its Notes or Loans to a Federal Reserve Bank or to any Person that extends credit to such Lender in support of borrowings made by such Lender from such Federal Reserve Bank or such other PersonBank, or (Bii) any Lender that is a trust, limited liability company, partnership or other investment company from pledging its Notes or Loans to a trustee or agent for the benefit of holders of certificates or debt securities issued by it. No such pledge, or any assignment pursuant to or in lieu of an enforcement of such a pledge, shall relieve the transferor Lender from its obligations hereunder. In connection with any assignment of rights and obligations of any Defaulting Lender hereunder, no such assignment shall be effective unless and until, in addition to the other conditions thereto set forth herein, the parties to the assignment shall make such additional payments to the Administrative Agent in an aggregate amount sufficient, upon distribution thereof as appropriate (which may be outright payment, purchases by the assignee of participations or sub-participations, or other compensating actions, including funding, with the consent of the Borrower and the Administrative Agent, the applicable pro rata share of Loans previously requested but not funded by the Defaulting Lender, to each of which the applicable assignee and assignor hereby irrevocably consent), to (x) pay and satisfy in full all payment liabilities then owed by such Defaulting Lender to the Administrative Agent or any Lender hereunder (and interest accrued thereon) and (y) acquire (and fund as appropriate) its full pro rata share of all Loans and participations in Letters of Credit and Swing Loans in accordance with its Applicable Percentage. Notwithstanding the foregoing, in the event that any assignment of rights and obligations of any Defaulting Lender hereunder shall become effective under applicable law without compliance with the provisions of this paragraph, then the assignee of such interest shall be deemed to be a Defaulting Lender for all purposes of this Agreement until such compliance occurs.
Appears in 3 contracts
Samples: Credit Agreement (DPL Inc), Credit Agreement (DPL Inc), Term Loan Agreement (DPL Inc)
Assignments by Lenders. (i) Any If any Lender may assign all, assigns all or if less than all, a fixed portion, any of its Loans, LC Participations, Swing Loan Participations and/or Commitments and its rights and benefits under the Senior Finance Documents in accordance with Clause 21.4 (Assignment and Transfer by Lenders), then, unless and until the assignee has delivered:
(a) a notice to the Intercreditor Agent (which the Intercreditor Agent shall promptly copy to the Company and the other Senior Secured Creditors) confirming in favour of the Senior Secured Creditors that it shall be under the same obligations hereunder to one or more Eligible Assignees, towards each of them as it would have been under if it had been an original party hereto as a Lender and to the relevant Facility Agreement as a Hotel Facility Lender, Project Facility Lender, Additional Lender or Revolving Credit Facility Lender (as the case may be); and
(b) a duly completed Finance Party Accession Undertaking executed by such Lender, such assignee, the Intercreditor Agent and all other parties hereto acting through the Intercreditor Agent for this purpose (the authority for which is hereby conferred on the Intercreditor Agent and which the Intercreditor Agent shall promptly deliver to the Security Agent), (whereupon such assignee shall become a party to this Agreement hereto as a Lender by execution of an Assignment Agreement; provided“Lender” or thereto as a “Hotel Facility Lender”, however“Project Facility Lender”, that:
(A) except in the case of (x) an assignment of the entire remaining amount of the assigning “Additional Lender’s Loans and/or Commitments ” or (y) an assignment to another “Revolving Credit Facility Lender, an Affiliate of such Lender or an Approved Fund with respect to such Lender”), the aggregate amount of Company and the Commitment so assigned (which for this purpose includes the Loans outstanding thereunder) Senior Secured Creditors shall not be less than $2,500,000 (unless otherwise mutually agreed upon by the Borrower and the Administrative Agent);
(B) in the case of any assignment obliged to an Eligible Assignee at the time of any recognise such assignment the Lender Register shall be deemed modified to reflect the Commitments of such new Lender and of the existing Lenders;
(C) upon surrender of the old Notes, if any, upon request of the new Lender, new Notes will be issued, at the Borrower’s expense, to such new Lender and to the assigning Lender, to the extent needed to reflect the revised Commitments;
(D) unless waived by the Administrative Agent, except in the case of an assignment to another Lender, an Affiliate of such Lender or an Approved Fund with respect to such Lender, or any Lenders in connection with the initial syndication of the Credit Facilities on or after the Closing Date, the Administrative Agent shall receive at the time of each such assignment, from the assigning or assignee Lender, the payment of a non-refundable assignment fee of $3,500; and
(E) any such assignment shall require the prior written consent (such consent (except with respect to assignments to competitors of the Borrower) not to be unreasonably withheld or delayed) of:
(1) the Borrower; provided that no consent of the Borrower shall be required for an assignment (x) by a Lender to any Lender or a U.S. based-Affiliate of any Lender, (y) by a Lender to an Approved Fund and (z) during a Specified Event of Default (unless such assignment is to a Disqualified Lender). Notwithstanding anything in this Section 11.06 to the contrary, if the Borrower has not given the Administrative Agent written notice of its objection to an assignment of Loans within fifteen (15) Business Days after written notice of such assignment, the Borrower shall be deemed to have consented to such assignment;
(2) the Administrative Agent; provided that no consent of the Administrative Agent shall be required for an assignment of a Loan to a Lender, an Affiliate of a Lender or an Approved Fund; and
(3) each LC Issuer and Swing Line Lender; provided that no consent of an LC Issuer or Swing Line Lender shall be required for an assignment of a Loan to a Lender, an Affiliate of a Lender or an Approved Fund.
(ii) To the extent of any assignment pursuant to this subsection (c), the assigning Lender shall be relieved of its obligations hereunder with respect to its assigned Commitments.
(iii) At the time of each assignment pursuant to this subsection (c) to a Person that is not already a Lender hereunder, the respective assignee Lender shall provide to the Borrower and the Administrative Agent the applicable Internal Revenue Service Forms (and any necessary additional documentation) described in Section 3.02(e).
(iv) With respect to any Lender, the transfer of any Commitment of such Lender and as having the rights to the principal of, and interest on, any Loan made pursuant to such Commitment shall not be effective until such transfer is recorded on the Lender Register maintained by the Administrative Agent (on behalf against each of and acting solely for this purpose as a non-fiduciary agent of the applicable Borrower) with respect to ownership of such Commitment and Loans, including the name and address of the Lenders and the principal amount of the Loans (and stated interest thereon). Prior to such recordation, all amounts owing to the transferor with respect to such Commitment and Loans shall remain owing to the transferor. The registration of assignment or transfer of all or part of any Commitments and Loans shall be recorded by the Administrative Agent on the Lender Register only upon the acceptance by the Administrative Agent of a properly executed and delivered Assignment Agreement pursuant to this subsection (c). The entries in the Lender Register shall be conclusive absent manifest error, and the Borrower, the Administrative Agent and each Lender shall treat each person whose name is recorded in the Lender Register as a Lender hereunder for all purposes of this Agreement notwithstanding any notice to the contrary. The Lender Register shall be available for the inspection by the Borrower and any Lender (solely with respect to its own interest in any Loan or Commitment) at any reasonable time and from time to time upon reasonable prior notice.
(v) [Reserved].
(vi) Nothing in this Section 11.06(c) shall prevent or prohibit (A) any Lender that is a bank, trust company or other financial institution from pledging its Notes or Loans to a Federal Reserve Bank or to any Person that extends credit to such Lender in support of borrowings made by such Lender from such Federal Reserve Bank or such other Person, or (B) any Lender that is a trust, limited liability company, partnership or other investment company from pledging its Notes or Loans to a trustee or agent for the benefit of holders of certificates or debt securities issued by it. No such pledge, or any assignment pursuant to or in lieu of an enforcement of them which it would have had if it had been such a pledge, shall relieve the transferor Lender from its obligations hereunder. In connection with any assignment of rights and obligations of any Defaulting Lender hereunder, no such assignment shall be effective unless and until, in addition to the other conditions thereto set forth herein, the parties to the assignment shall make such additional payments to the Administrative Agent in an aggregate amount sufficient, upon distribution thereof as appropriate (which may be outright payment, purchases by the assignee of participations party hereto or sub-participations, or other compensating actions, including funding, with the consent of the Borrower and the Administrative Agent, the applicable pro rata share of Loans previously requested but not funded by the Defaulting Lender, to each of which the applicable assignee and assignor hereby irrevocably consent), to (x) pay and satisfy in full all payment liabilities then owed by such Defaulting Lender to the Administrative Agent or any Lender hereunder (and interest accrued thereon) and (y) acquire (and fund as appropriate) its full pro rata share of all Loans and participations in Letters of Credit and Swing Loans in accordance with its Applicable Percentage. Notwithstanding the foregoing, in the event that any assignment of rights and obligations of any Defaulting Lender hereunder shall become effective under applicable law without compliance with the provisions of this paragraph, then the assignee of such interest shall be deemed to be a Defaulting Lender for all purposes of this Agreement until such compliance occursthereto.
Appears in 3 contracts
Samples: Common Terms Agreement (Wynn Resorts LTD), Common Terms Agreement (Wynn Resorts LTD), Loan Agreement (Wynn Resorts LTD)
Assignments by Lenders. (i) Any Lender may assign all, or if less than all, a fixed portion, of its Loans, LC Participations, Swing Loan Participations and/or Commitments (in each case together with a proportional interest in the Security Documents governed by Swedish law, if any) and its rights and obligations hereunder to one or more Eligible Assignees, each of which shall become a party to this Agreement as a Lender by execution of an Assignment Agreement; provided, however, that:
(A) except in the case of (x) an assignment of the entire remaining amount of the assigning Lender’s Loans and/or Commitments or (y) an assignment to another Lender, an Affiliate of such Lender or an Approved Fund with respect to such Lender, the aggregate amount of the Commitment so assigned (which for this purpose includes the Loans outstanding thereunder) shall not be less than $2,500,000 (unless otherwise mutually agreed upon by 1,000,000 in the Borrower case of any assignment in respect of the Revolving Facility and $1,000,000 in the Administrative Agent)case of any assignment in respect of the Term Loans;
(B) in the case of any assignment to an Eligible Assignee at the time of any such assignment the Lender Register shall be deemed modified to reflect the Commitments of such new Lender and of the existing Lenders;; and
(C) upon surrender of the old Notes, if any, upon request of the new Lender, new Notes will be issued, at the U.S. Borrower’s expense, to such new Lender and to the assigning Lender, to the extent needed to reflect the revised Commitments;
(D) unless waived by the Administrative Agent, except in the case of an assignment to another Lender, an Affiliate of such Lender or an Approved Fund with respect to such Lender, or any Lenders in connection with the initial syndication of the Credit Facilities on or after the Closing Date, the Administrative Agent shall receive at the time of each such assignment, from the assigning or assignee Lender, the payment of a non-refundable assignment fee of $3,500; and
(E) any such assignment shall require the prior written consent (such consent (except with respect to assignments to competitors of the Borrower) not to be unreasonably withheld or delayed) of:
(1) the Borrower; provided that no consent of the Borrower shall be required for an assignment (x) by a Lender to any Lender or a U.S. based-Affiliate of any Lender, (y) by a Lender to an Approved Fund and (z) during a Specified Event of Default (unless such assignment is to a Disqualified Lender). Notwithstanding anything in this Section 11.06 to the contrary, if the Borrower has not given the Administrative Agent written notice of its objection to an assignment of Loans within fifteen (15) Business Days after written notice of such assignment, the Borrower shall be deemed to have consented to such assignment;
(2) the Administrative Agent; provided that no consent of the Administrative Agent shall be required for an assignment of a Loan to a Lender, an Affiliate of a Lender or an Approved Fund; and
(3) each LC Issuer and Swing Line Lender; provided that no consent of an LC Issuer or Swing Line Lender shall be required for an assignment of a Loan to a Lender, an Affiliate of a Lender or an Approved Fund.
(ii) To the extent of any assignment pursuant to this subsection subpart (c), the assigning Lender shall be relieved of its obligations hereunder with respect to its assigned Commitments; provided that, except to the extent otherwise expressly agreed by the affected parties, no assignment by a Defaulting Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender’s having been a Defaulting Lender.
(iii) At the time of each assignment pursuant to this subsection subpart (c) ), to a Person that is not already a Lender hereunder, the respective assignee Lender shall provide to the U.S. Borrower and the Administrative Agent the applicable Internal Revenue Service Forms (and any necessary additional documentation) all other documentation described in Section 3.02(e3.03(g).
(iv) With respect to any Lender, the transfer of any Commitment of such Lender and the rights to the principal of, and interest on, any Loan made pursuant to such Commitment shall not be effective until such transfer is recorded on the Lender Register maintained by the Administrative Agent (on behalf of and acting solely for this purpose as a non-fiduciary agent of the applicable U.S. Borrower) with respect to ownership of such Commitment and Loans, including the name and address of the Lenders and the principal amount of the Loans (and stated interest thereon). Prior to such recordation, all amounts owing to the transferor with respect to such Commitment and Loans shall remain owing to the transferor. The registration of assignment or transfer of all or part of any Commitments and Loans shall be recorded by the Administrative Agent on the Lender Register only upon the acceptance by the Administrative Agent of a properly executed and delivered Assignment Agreement pursuant to this subsection subpart (c). The entries in the Lender Register shall be conclusive absent manifest error, and the Borrower, the Administrative Agent and each Lender shall treat each person whose name is recorded in the Lender Register as a Lender hereunder for all purposes of this Agreement notwithstanding any notice to the contrary. The Lender Register shall be available for the inspection by the Borrower and any Lender (solely with respect to its own interest in any Loan or Commitment) at any reasonable time and from time to time upon reasonable prior notice.
(v) [Reserved].
(vi) Nothing in this Section 11.06(c) shall prevent or prohibit (A) any Lender that is a bank, trust company or other financial institution from pledging its Notes or Loans to a Federal Reserve Bank Bank, central banking authority or to any Person that extends credit to such Lender in support of borrowings made by such Lender from such Federal Reserve Bank Bank, central banking authority or such other Person, or (B) any Lender that is a trust, limited liability company, partnership or other investment company from pledging its Notes or Loans to a trustee or agent for the benefit of holders of certificates or debt securities issued by it. No such pledge, or any assignment pursuant to or in lieu of an enforcement of such a pledge, shall relieve the transferor Lender from its obligations hereunder. .
(vi) In connection with any assignment of rights and obligations of any Defaulting Lender hereunder, no such assignment shall be effective unless and until, in addition to the other conditions thereto set forth herein, the parties to the assignment shall make such additional payments to the Administrative Agent in an aggregate amount sufficient, upon distribution thereof as appropriate (which may be outright payment, purchases by the assignee of participations or sub-participationssubparticipations, or other compensating actions, including funding, with the consent of the U.S. Borrower and the Administrative Agent, the applicable pro rata share of Loans previously requested but not funded by the Defaulting Lender, to each of which the applicable assignee and assignor hereby irrevocably consent), to (x) pay and satisfy in full all payment liabilities then owed by such Defaulting Lender to the Administrative Agent or any Agent, each LC Issuer and each other Lender hereunder (and interest accrued thereon) ), and (y) acquire (and fund as appropriate) its full pro rata share of all Loans and participations in Letters of Credit and Swing Loans in accordance with its Applicable Revolving Facility Percentage. Notwithstanding the foregoing, in the event that any assignment of rights and obligations of any Defaulting Lender hereunder shall become effective under applicable law without compliance with the provisions of this paragraph, then the assignee of such interest shall be deemed to be a Defaulting Lender for all purposes of this Agreement until such compliance occurs.
Appears in 3 contracts
Samples: Credit Agreement (GTT Communications, Inc.), Credit Agreement (GTT Communications, Inc.), Credit Agreement (GTT Communications, Inc.)
Assignments by Lenders. (i) Any Lender may assign all, or if less than all, a fixed portion, of its Loans, LC Participations, Swing Loan Participations and/or Commitments and its rights and obligations hereunder to one or more Eligible Assignees, each of which shall become a party to this Agreement as a Lender by execution of an Assignment Agreement; provided, however, that:
(A) except in the case of (x) an assignment of the entire remaining amount of the assigning Lender’s Loans and/or Commitments or (y) an assignment to another Lender, an Affiliate of such Lender or an Approved Fund with respect to such Lender, the aggregate amount of the Commitment so assigned (which for this purpose includes the Loans outstanding thereunder) shall not be less than $2,500,000 7,500,000 (unless otherwise mutually agreed upon by the Borrower and the Administrative Agentor an integral multiple of $1,000,000 in excess thereof);
(B) in the case of any assignment to an Eligible Assignee at the time of any such assignment the Lender Register shall be deemed modified to reflect the Commitments of such new Lender and of the existing LendersLenders (and no assignment shall be effective hereunder unless recorded in the Lender Register as provided herein);
(C) upon surrender of the old Notes, if any, upon request of the new Lender, new Notes will be issued, at the Borrower’s expense, to such new Lender and to the assigning Lender, to the extent needed to reflect the revised Commitments;
(D) unless waived by the Administrative Agent, except in the case of an assignment to another Lender, an Affiliate of such Lender or an Approved Fund with respect to such Lender, or any Lenders in connection with the initial syndication of the Credit Facilities on or after the Closing Date, the Administrative Agent shall receive at the time of each such assignment, from the assigning or assignee Lender, the payment of a non-refundable assignment fee of $3,500;
(E) no such assignment shall be made to any Defaulting Lender or any Impacted Lender; and
(EF) in connection with any assignment of rights and obligations of any Defaulting Lender or Impacted Lender hereunder, no such assignment shall require the prior written consent (such consent (except with respect to assignments to competitors of the Borrower) not to be unreasonably withheld or delayed) of:
(1) the Borrower; provided that no consent of the Borrower shall be required for an assignment (x) by a Lender to any Lender or a U.S. based-Affiliate of any Lendereffective unless and until, (y) by a Lender to an Approved Fund and (z) during a Specified Event of Default (unless such assignment is to a Disqualified Lender). Notwithstanding anything in this Section 11.06 addition to the contraryother conditions thereto set forth herein, if the Borrower has not given parties to the assignment shall make such additional payments to the Administrative Agent written notice in an aggregate amount sufficient, upon distribution thereof as appropriate (which may be outright payment, purchases by the assignee of its objection participations or subparticipations, or other compensating actions, to an assignment each of Loans within fifteen (15) Business Days after written notice of such assignmentwhich the applicable assignees and assignor hereby irrevocably consent), the Borrower shall be deemed to have consented pay and satisfy in full all Defaulted Credits and Defaulted Payments and interest accrued thereon attributable to such assignment;
(2) the Administrative Agent; provided that no consent of the Administrative Agent shall be required for an assignment of a Loan to a Defaulting Lender or Impacted Lender, an Affiliate of a Lender or an Approved Fund; and
(3) each LC Issuer and Swing Line Lender; provided that no consent of an LC Issuer or Swing Line Lender shall be required for an assignment of a Loan to a Lender, an Affiliate of a Lender or an Approved Fundas the case may be.
(ii) To the extent of any assignment pursuant to this subsection subpart (c), the assigning Lender shall be relieved of its obligations hereunder with respect to its assigned Commitments.
(iii) At the time of each assignment pursuant to this subsection subpart (c) ), to a Person that is not already a Lender hereunder, the respective assignee Lender shall provide to the Borrower and the Administrative Agent the applicable Internal Revenue Service Forms (and any necessary additional documentation) described in Section 3.02(e3.03(b) or (c), as appropriate.
(iv) With respect to any Lender, the transfer of any Commitment of such Lender and the rights to the principal of, and interest on, any Loan made pursuant to such Commitment shall not be effective until such transfer is recorded on the Lender Register maintained by the Administrative Agent (on behalf of and acting solely for this purpose as a non-fiduciary agent of the applicable Borrower) with respect to ownership of such Commitment and Loans, including the name Loans and address of the Lenders and the principal amount of the Loans (and stated interest thereon). Prior prior to such recordation, recordation all amounts owing to the transferor with respect to such Commitment and Loans shall remain owing to the transferor. The registration of assignment or transfer of all or part of any Commitments and Loans shall be recorded by the Administrative Agent on the Lender Register only upon the acceptance by the Administrative Agent of a properly executed and delivered Assignment Agreement pursuant to this subsection subpart (c). The entries in the Lender Register shall be conclusive absent manifest error, and the Borrower, the Administrative Agent and each Lender shall treat each person whose name is recorded in the Lender Register as a Lender hereunder for all purposes of this Agreement notwithstanding any notice to the contrary. The Lender Register shall be available for the inspection by the Borrower and any Lender (solely with respect to its own interest in any Loan or Commitment) at any reasonable time and from time to time upon reasonable prior notice.
(v) [Reserved].
(vi) Nothing in this Section 11.06(c) shall prevent or prohibit (A) any Lender that is a bank, trust company or other financial institution from pledging its Notes or Loans to a Federal Reserve Bank or to any Person that extends credit to such Lender in support of borrowings made by such Lender from such Federal Reserve Bank or such other PersonBank, or (B) any Lender that is a trust, limited liability company, partnership or other investment company from pledging its Notes or Loans to a trustee or agent for the benefit of holders of certificates or debt securities issued by it. No such pledge, or any assignment pursuant to or in lieu of an enforcement of such a pledge, shall relieve the transferor Lender from its obligations hereunder. In connection with any assignment of rights and obligations of any Defaulting Lender hereunder, no such assignment shall be effective unless and until, in addition to the other conditions thereto set forth herein, the parties to the assignment shall make such additional payments to the Administrative Agent in an aggregate amount sufficient, upon distribution thereof as appropriate (which may be outright payment, purchases by the assignee of participations or sub-participations, or other compensating actions, including funding, with the consent of the Borrower and the Administrative Agent, the applicable pro rata share of Loans previously requested but not funded by the Defaulting Lender, to each of which the applicable assignee and assignor hereby irrevocably consent), to (x) pay and satisfy in full all payment liabilities then owed by such Defaulting Lender to the Administrative Agent or any Lender hereunder (and interest accrued thereon) and (y) acquire (and fund as appropriate) its full pro rata share of all Loans and participations in Letters of Credit and Swing Loans in accordance with its Applicable Percentage. Notwithstanding the foregoing, in the event that any assignment of rights and obligations of any Defaulting Lender hereunder shall become effective under applicable law without compliance with the provisions of this paragraph, then the assignee of such interest shall be deemed to be a Defaulting Lender for all purposes of this Agreement until such compliance occurs.
Appears in 2 contracts
Samples: Credit Agreement (Circor International Inc), Credit Agreement (Circor International Inc)
Assignments by Lenders. (i) Any Lender may assign all, to one or if less than all, more Persons all or a fixed portion, portion of its Loans, LC Participations, Swing Loan Participations and/or Commitments and its rights and obligations hereunder to one or more Eligible Assignees, each of which shall become a party to under this Agreement as (including all or a Lender by execution portion of an Assignment Agreementits Loan at the time owing to it); provided, however, provided that:
(Ai) except in the case of (x) an assignment of the entire remaining amount of the assigning Lender’s Loans and/or Commitments or (y) an assignment to another Lender, an Affiliate of such Lender or an Approved Fund with respect to such Lender, the aggregate amount of the Commitment so assigned (which for this purpose includes the Loans outstanding thereunder) shall not be less than $2,500,000 (unless otherwise mutually agreed upon by the Borrower and the Administrative Agent);
(B) in the case of any assignment to an Eligible Assignee at the time of any such assignment the Lender Register shall be deemed modified to reflect the Commitments of such new Lender and of the existing Lenders;
(C) upon surrender of the old Notes, if any, upon request of the new Lender, new Notes will be issued, at the Borrower’s expense, to such new Lender and to the assigning Lender, to the extent needed to reflect the revised Commitments;
(D) unless waived by the Administrative Agent, except in the case of an assignment to another a Lender or an Affiliate or Related Fund of a Lender, the amount of the Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent) shall not be less than $500,000 unless the Borrower and the Administrative Agent otherwise consent;
(ii) except in the case of an assignment to a Lender or an Affiliate or Related Fund of a Lender, the Borrower and the Administrative Agent must each give its prior written consent to such assignment; provided that (x) in the case of the Administrative Agent, such consent shall not be unreasonably withheld, conditioned or delayed and (y) in the case of the Borrower, such consent shall not be unreasonably withheld, conditioned or delayed if such assignment is to an Approved Fund and such consent shall be given in the Borrower’s sole discretion if the assignment is to any other Person (other than a Lender, an Affiliate or Related Fund of such a Lender or an Approved Fund with respect to such LenderFund) (and provided further that, or any Lenders in connection with the initial syndication case of the Credit Facilities on or after Borrower, such consent shall be deemed to be given if the Closing DateBorrower has not responded within five (5) Business Days of any request for consent);
(iii) 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;
(iv) except in the case of an assignment to an Affiliate, the parties to each assignment shall execute and deliver to the Administrative Agent shall receive at the time of each such assignmentan Assignment and Assumption, from the assigning or assignee Lender, the payment of together with a non-refundable assignment processing and recordation fee of $3,500; and
(E) any such assignment shall require the prior written consent (such consent (except with respect to assignments to competitors of the Borrower) not to be unreasonably withheld or delayed) of:
(1v) the Borrower; provided that no consent of the Borrower shall be required for an assignment (x) by a Lender to any Lender or a U.S. based-Affiliate of any Lender, (y) by a Lender to an Approved Fund and (z) during a Specified Event of Default (unless such assignment is to a Disqualified Lender). Notwithstanding anything in this Section 11.06 to the contraryassignee, if the Borrower has it shall not given the Administrative Agent written notice of its objection to an assignment of Loans within fifteen (15) Business Days after written notice of such assignment, the Borrower shall be deemed to have consented to such assignment;
(2) the Administrative Agent; provided that no consent of the Administrative Agent shall be required for an assignment of a Loan to a Lender, an Affiliate of a Lender or an Approved Fund; and
(3) each LC Issuer and Swing Line Lender; provided that no consent of an LC Issuer or Swing Line Lender shall be required for an assignment of a Loan to a Lender, an Affiliate of a Lender or an Approved Fund.
(ii) To the extent of any assignment pursuant to this subsection (c), the assigning Lender shall be relieved of its obligations hereunder with respect to its assigned Commitments.
(iii) At the time of each assignment pursuant to this subsection (c) to a Person that is not already a Lender hereunder, the respective assignee Lender shall provide to the Borrower and the Administrative Agent the applicable Internal Revenue Service Forms (and any necessary additional documentation) described in Section 3.02(e).
(iv) With respect to any Lender, the transfer of any Commitment of such Lender and the rights to the principal of, and interest on, any Loan made pursuant to such Commitment shall not be effective until such transfer is recorded on the Lender Register maintained by the Administrative Agent (on behalf of and acting solely for this purpose as a non-fiduciary agent of the applicable Borrower) with respect to ownership of such Commitment and Loans, including the name and address of the Lenders and the principal amount of the Loans (and stated interest thereon). Prior to such recordation, all amounts owing to the transferor with respect to such Commitment and Loans shall remain owing to the transferor. The registration of assignment or transfer of all or part of any Commitments and Loans shall be recorded by the Administrative Agent on the Lender Register only upon the acceptance by the Administrative Agent of a properly executed and delivered Assignment Agreement pursuant to this subsection (c). The entries in the Lender Register shall be conclusive absent manifest error, and the Borrower, the Administrative Agent and each Lender shall treat each person whose name is recorded in the Lender Register as a Lender hereunder for all purposes of this Agreement notwithstanding any notice to the contrary. The Lender Register shall be available for the inspection by the Borrower and any Lender (solely with respect to its own interest in any Loan or Commitment) at any reasonable time and from time to time upon reasonable prior notice.
(v) [Reserved].
(vi) Nothing in this Section 11.06(c) shall prevent or prohibit (A) any Lender that is a bank, trust company or other financial institution from pledging its Notes or Loans to a Federal Reserve Bank or to any Person that extends credit to such Lender in support of borrowings made by such Lender from such Federal Reserve Bank or such other Person, or (B) any Lender that is a trust, limited liability company, partnership or other investment company from pledging its Notes or Loans to a trustee or agent for the benefit of holders of certificates or debt securities issued by it. No such pledge, or any assignment pursuant to or in lieu of an enforcement of such a pledge, shall relieve the transferor Lender from its obligations hereunder. In connection with any assignment of rights and obligations of any Defaulting Lender hereunder, no such assignment shall be effective unless and until, in addition to the other conditions thereto set forth herein, the parties to the assignment shall make such additional payments deliver to the Administrative Agent in an aggregate amount sufficient, upon distribution thereof as appropriate (which may be outright payment, purchases by the assignee of participations or sub-participations, or other compensating actions, including funding, with the consent of the Borrower and the Administrative Agent, the applicable pro rata share of Loans previously requested but not funded by the Defaulting Lender, to each of which the applicable assignee and assignor hereby irrevocably consent), to (x) pay and satisfy in full all payment liabilities then owed by such Defaulting Lender to the Administrative Agent or any Lender hereunder (and interest accrued thereon) and (y) acquire (and fund as appropriate) its full pro rata share of all Loans and participations in Letters of Credit and Swing Loans in accordance with its Applicable Percentage. Notwithstanding the foregoing, in the event that any assignment of rights and obligations of any Defaulting Lender hereunder shall become effective under applicable law without compliance with the provisions of this paragraph, then the assignee of such interest shall be deemed to be a Defaulting Lender for all purposes of this Agreement until such compliance occurs.Questionnaire;
Appears in 2 contracts
Samples: Credit Agreement (Fuelcell Energy Inc), Credit Agreement (Fuelcell Energy Inc)
Assignments by Lenders. (i) Any Lender may assign all, or if less than all, a fixed portion, of its Loans, LC Participations, Swing Loan Participations and/or Commitments and its rights and obligations hereunder to one or more Eligible Assignees, each of which shall become a party to this Agreement as a Lender by execution of an Assignment Agreement; provided, however, that:
(A) except in the case of (x) an assignment of the entire remaining amount of the assigning Lender’s Loans and/or Commitments or (y) an assignment to another Lender, an Affiliate of such Lender or an Approved Fund with respect to such Lender, the aggregate amount of the Commitment so assigned (which for this purpose includes the Loans outstanding thereunder) shall not be less than $2,500,000 (unless otherwise mutually agreed upon by the Borrower and the Administrative Agent)2,000,000;
(B) in the case of any assignment to an Eligible Assignee at the time of any such assignment the Lender Register shall be deemed modified to reflect the Commitments of such new Lender and of the existing Lenders;
(C) upon surrender of the old Notes, if any, upon request of the new Lender, new Notes will be issued, at the Borrower’s expense, to such new Lender and to the assigning Lender, to the extent needed to reflect the revised Commitments;; and
(D) unless waived by the Administrative Agent, except in the case of an assignment to another Lender, an Affiliate of such Lender or an Approved Fund with respect to such Lender, or any Lenders in connection with the initial syndication of the Credit Facilities on or after the Closing Date, the Administrative Agent shall receive at the time of each such assignment, from the assigning or assignee Lender, the payment of a non-refundable assignment fee of $3,500; and
(E) any such assignment shall require the prior written consent (such consent (except with respect to assignments to competitors of the Borrower) not to be unreasonably withheld or delayed) of:
(1) the Borrower; provided that no consent of the Borrower shall be required for an assignment (x) by a Lender to any Lender or a U.S. based-Affiliate of any Lender, (y) by a Lender to an Approved Fund and (z) during a Specified Event of Default (unless such assignment is to a Disqualified Lender). Notwithstanding anything in this Section 11.06 to the contrary, if the Borrower has not given the Administrative Agent written notice of its objection to an assignment of Loans within fifteen (15) Business Days after written notice of such assignment, the Borrower shall be deemed to have consented to such assignment;
(2) the Administrative Agent; provided that no consent of the Administrative Agent shall be required for an assignment of a Loan to a Lender, an Affiliate of a Lender or an Approved Fund; and
(3) each LC Issuer and Swing Line Lender; provided that no consent of an LC Issuer or Swing Line Lender shall be required for an assignment of a Loan to a Lender, an Affiliate of a Lender or an Approved Fund.
(ii) To the extent of any assignment pursuant to this subsection subpart (c), the assigning Lender shall be relieved of its obligations hereunder with respect to its assigned CommitmentsCommitments provided, that except to the extent otherwise expressly agreed by the affected parties, no assignment by a Defaulting Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender’s having been a Defaulting Lender.
(iii) At the time of each assignment pursuant to this subsection subpart (c) ), to a Person that is not already a Lender hereunderhereunder and that is not a U.S. Person for Federal income tax purposes, the respective assignee Lender shall provide to the Borrower and the Administrative Agent the applicable Internal Revenue Service Forms (and any necessary additional documentation) described in Section 3.02(e3.03(g).
(iv) With respect to any Lender, the transfer of any Commitment of such Lender and the rights to the principal of, and interest on, any Loan made pursuant to such Commitment shall not be effective until such transfer is recorded on the Lender Register maintained by the Administrative Agent (on behalf of and acting solely for this purpose as a non-fiduciary agent of the applicable Borrower) with respect to ownership of such Commitment and Loans, including the name and address of the Lenders and the principal amount of the Loans (and stated interest thereon). Prior to such recordation, all amounts owing to the transferor with respect to such Commitment and Loans shall remain owing to the transferor. The registration of assignment or transfer of all or part of any Commitments and Loans shall be recorded by the Administrative Agent on the Lender Register only upon the acceptance by the Administrative Agent of a properly executed and delivered Assignment Agreement pursuant to this subsection subpart (c). The entries in the Lender Register shall be conclusive absent manifest error, and the Borrower, the Administrative Agent and each Lender shall treat each person whose name is recorded in the Lender Register as a Lender hereunder for all purposes of this Agreement notwithstanding any notice to the contrary. The Lender Register shall be available for the inspection by the Borrower and any Lender (solely with respect to its own interest in any Loan or Commitment) at any reasonable time and from time to time upon reasonable prior notice.
(v) [Reserved].
(vi) Nothing in this Section 11.06(c) shall prevent or prohibit (A) any Lender that is a bank, trust company or other financial institution from pledging its Notes or Loans to a Federal Reserve Bank or to any Person that extends credit to such Lender in support of borrowings made by such Lender from such Federal Reserve Bank or such other Person, or (B) any Lender that is a trust, limited liability company, partnership or other investment company from pledging its Notes or Loans to a trustee or agent for the benefit of holders of certificates or debt securities issued by it. No such pledge, or any assignment pursuant to or in lieu of an enforcement of such a pledge, shall relieve the transferor Lender from its obligations hereunder. .
(vi) In connection with any assignment of rights and obligations of any Defaulting Lender hereunder, no such assignment shall be effective unless and until, in addition to the other conditions thereto set forth herein, the parties to the assignment shall make such additional payments to the Administrative Agent in an aggregate amount sufficient, upon distribution thereof as appropriate (which may be outright payment, purchases by the assignee of participations or sub-participationssubparticipations, or other compensating actions, including funding, with the consent of the Borrower and the Administrative Agent, the applicable pro rata share of Loans previously requested but not funded by the Defaulting Lender, to each of which the applicable assignee and assignor hereby irrevocably consent), to (x) pay and satisfy in full all payment liabilities then owed by such Defaulting Lender to the Administrative Agent or any Agent, each LC Issuer, each Swing Line Lender and each other Lender hereunder (and interest accrued thereon) ), and (y) acquire (and fund as appropriate) its full pro rata share of all Loans and participations in Letters of Credit and Swing Loans in accordance with its Applicable Revolving Facility Percentage. Notwithstanding the foregoing, in the event that any assignment of rights and obligations of any Defaulting Lender hereunder shall become effective under applicable law without compliance with the provisions of this paragraph, then the assignee of such interest shall be deemed to be a Defaulting Lender for all purposes of this Agreement until such compliance occurs. Notwithstanding anything contained herein, no Lender may assign, sell, negotiate or otherwise transfer its Loans, LC Participations, Swing Loan Participations and/or Commitments to any Credit Party or any Affiliate of any of the foregoing.
Appears in 2 contracts
Samples: Credit Agreement (Kona Grill Inc), Credit Agreement (Kona Grill Inc)
Assignments by Lenders. (i) Any Lender may assign all, or if less than all, a fixed portion, of its Loans, LC Participations, Swing Loan Participations and/or Commitments and its rights and obligations hereunder to one or more Eligible Assignees, each of which shall become a party to this Agreement as a Lender by execution of an Assignment Agreement; provided, however, that:
(A) except in the case of (x) an assignment of the entire remaining amount of the assigning Lender’s Loans and/or Commitments or (y) an assignment to another Lender, an Affiliate of such Lender or an Approved Fund with respect to such Lender, the aggregate amount of the Commitment so assigned (which for this purpose includes the Loans outstanding thereunder) shall not be less than $2,500,000 (unless otherwise mutually agreed upon by the Borrower and the Administrative Agent)5,000,000;
(B) in the case of any assignment to an Eligible Assignee at the time of any such assignment the Lender Register shall be deemed modified to reflect the Commitments of such new Lender and of the existing Lenders;
(C) upon surrender of the old Notes, if any, upon request of the new Lender, new Notes will be issued, at the Borrower’s expense, to such new Lender and to the assigning Lender, to the extent needed to reflect the revised Commitments;; and
(D) unless waived by the Administrative Agent, except in the case of an assignment to another Lender, an Affiliate of such Lender or an Approved Fund with respect to such Lender, or any Lenders in connection with the initial syndication of the Credit Facilities on or after the Closing Date, the Administrative Agent shall receive at the time of each such assignment, from the assigning or assignee Lender, the payment of a non-refundable assignment fee of $3,500; and
(E) any such assignment shall require the prior written consent (such consent (except with respect to assignments to competitors of the Borrower) not to be unreasonably withheld or delayed) of:
(1) the Borrower; provided that no consent of the Borrower shall be required for an assignment (x) by a Lender to any Lender or a U.S. based-Affiliate of any Lender, (y) by a Lender to an Approved Fund and (z) during a Specified Event of Default (unless such assignment is to a Disqualified Lender). Notwithstanding anything in this Section 11.06 to the contrary, if the Borrower has not given the Administrative Agent written notice of its objection to an assignment of Loans within fifteen (15) Business Days after written notice of such assignment, the Borrower shall be deemed to have consented to such assignment;
(2) the Administrative Agent; provided that no consent of the Administrative Agent shall be required for an assignment of a Loan to a Lender, an Affiliate of a Lender or an Approved Fund; and
(3) each LC Issuer and Swing Line Lender; provided that no consent of an LC Issuer or Swing Line Lender shall be required for an assignment of a Loan to a Lender, an Affiliate of a Lender or an Approved Fund.
(ii) To the extent of any assignment pursuant to this subsection subpart (c), the assigning Lender shall be relieved of its obligations hereunder with respect to its assigned Commitments.
(iii) At the time of each assignment pursuant to this subsection subpart (c) ), to a Person that is not already a Lender hereunderhereunder and that is not a United States Person (as such term is defined in Section 7701(a)(30) of the Code) for Federal income tax purposes, the respective assignee Lender shall provide to the Borrower and the Administrative Agent the applicable Internal Revenue Service Forms (and any necessary additional documentation) described in Section 3.02(e3.03(b).
(iv) With respect to any Lender, the transfer of any Commitment of such Lender and the rights to the principal of, and interest on, any Loan made pursuant to such Commitment shall not be effective until such transfer is recorded on the Lender Register maintained by the Administrative Agent (on behalf of and acting solely for this purpose as a non-fiduciary agent of the applicable Borrower) with respect to ownership of such Commitment and Loans, including the name Loans and address of the Lenders and the principal amount of the Loans (and stated interest thereon). Prior prior to such recordation, recordation all amounts owing to the transferor with respect to such Commitment and Loans shall remain owing to the transferor. The registration of assignment or transfer of all or part of any Commitments and Loans shall be recorded by the Administrative Agent on the Lender Register only upon the acceptance by the Administrative Agent of a properly executed and delivered Assignment Agreement pursuant to this subsection subpart (c). The entries in the Lender Register shall be conclusive absent manifest error, and the Borrower, the Administrative Agent and each Lender shall treat each person whose name is recorded in the Lender Register as a Lender hereunder for all purposes of this Agreement notwithstanding any notice to the contrary. The Lender Register shall be available for the inspection by the Borrower and any Lender (solely with respect to its own interest in any Loan or Commitment) at any reasonable time and from time to time upon reasonable prior notice.
(v) [Reserved].
(vi) Nothing in this Section 11.06(c) shall prevent or prohibit (A) any Lender that is a bank, trust company or other financial institution from pledging its Notes or Loans to a Federal Reserve Bank or to any Person that extends credit to such Lender in support of borrowings made by such Lender from such Federal Reserve Bank or such other PersonBank, or (B) any Lender that is a trust, limited liability company, partnership or other investment company from pledging its Notes or Loans to a trustee or agent for the benefit of holders of certificates or debt securities issued by it. No such pledge, or any assignment pursuant to or in lieu of an enforcement of such a pledge, shall relieve the transferor Lender from its obligations hereunder. In connection with any assignment of rights and obligations of any Defaulting Lender hereunder, no such assignment shall be effective unless and until, in addition to the other conditions thereto set forth herein, the parties to the assignment shall make such additional payments to the Administrative Agent in an aggregate amount sufficient, upon distribution thereof as appropriate (which may be outright payment, purchases by the assignee of participations or sub-participations, or other compensating actions, including funding, with the consent of the Borrower and the Administrative Agent, the applicable pro rata share of Loans previously requested but not funded by the Defaulting Lender, to each of which the applicable assignee and assignor hereby irrevocably consent), to (x) pay and satisfy in full all payment liabilities then owed by such Defaulting Lender to the Administrative Agent or any Lender hereunder (and interest accrued thereon) and (y) acquire (and fund as appropriate) its full pro rata share of all Loans and participations in Letters of Credit and Swing Loans in accordance with its Applicable Percentage. Notwithstanding the foregoing, in the event that any assignment of rights and obligations of any Defaulting Lender hereunder shall become effective under applicable law without compliance with the provisions of this paragraph, then the assignee of such interest shall be deemed to be a Defaulting Lender for all purposes of this Agreement until such compliance occurs.
Appears in 2 contracts
Samples: Credit Agreement (Viasys Healthcare Inc), Credit Agreement (Standex International Corp/De/)
Assignments by Lenders. (i) Any Lender may assign all, or if less than all, a fixed portion, of its Loans, LC Letter of Credit Participations, Swing Loan Participations and/or and Commitments and its rights and obligations hereunder to one or more Eligible Assignees, each of which shall become a party to this Agreement as a Lender by execution of an Assignment Agreement; provided, however, provided that:,
(A) except in the case of (x) of an assignment of the entire remaining amount of the assigning Lender’s Loans and/or Commitments or (y) an assignment to another Lender, an Affiliate of such Lender Lender, the Administrative Agent or an Approved Fund with respect to such Lender, the aggregate amount of the Commitment so assigned (which for this purpose includes the Loans outstanding thereunder) ), shall not be less than $2,500,000 (unless otherwise mutually agreed upon by the Borrower and the Administrative Agent)1,000,000;
(B) in the case of any assignment to an Eligible Assignee at the time of any such assignment the Lender Register shall be deemed modified to reflect the Commitments of such new Lender and of the existing Lenders;
(C) upon surrender of the old Notes, if any, upon request of the new Lender, new Notes will be issued, at the Borrower’s expense, to such new Lender and to the assigning Lender, to the extent needed to reflect the revised Commitments;; and
(D) unless waived by the Administrative Agent, except in the case of an assignment to another Lender, an Affiliate of such Lender or an Approved Fund with respect to such Lender, or any Lenders in connection with the initial syndication of the Credit Facilities on or after the Closing Date, the Administrative Agent shall receive at the time of each such assignment, from the assigning or assignee Lender, the payment of a non-refundable assignment fee of $3,500; , and
(E) any , provided further, that such transfer or assignment shall require will not be effective until the prior written consent (such consent (except with Assignment Agreement in respect to assignments to competitors of the Borrower) not to be unreasonably withheld or delayed) of:
(1) the Borrower; provided that no consent of the Borrower shall be required for an assignment (x) thereof is recorded by a Lender to any Lender or a U.S. based-Affiliate of any Lender, (y) by a Lender to an Approved Fund and (z) during a Specified Event of Default (unless such assignment is to a Disqualified Lender). Notwithstanding anything in this Section 11.06 to the contrary, if the Borrower has not given the Administrative Agent written notice of its objection to an assignment of Loans within fifteen (15) Business Days after written notice of such assignment, on the Borrower shall be deemed to have consented to such assignment;
(2) the Administrative Agent; Lender Register maintained by it as provided that no consent of the Administrative Agent shall be required for an assignment of a Loan to a Lender, an Affiliate of a Lender or an Approved Fund; and
(3) each LC Issuer and Swing Line Lender; provided that no consent of an LC Issuer or Swing Line Lender shall be required for an assignment of a Loan to a Lender, an Affiliate of a Lender or an Approved Fundherein.
(ii) To the extent of any assignment pursuant to this subsection (c), Section 13.5(c) the assigning Lender shall be relieved of its obligations hereunder with respect to its assigned Commitments.
(iii) At the time of each assignment pursuant to this subsection (cSection 13.5(c) to a Person person that is not already a Lender hereunderhereunder and that is not a United States person (as such term is defined in Section 7701(a)(30) of the Code) for Federal income tax purposes, the respective assignee Lender shall provide to the Borrower and the Administrative Agent the applicable Internal Revenue Service Forms (and, if applicable, an Exemption Certificate and any necessary additional documentation) described in Section 3.02(e5.3(b).
(iv) With respect to any Lender, the transfer of any Commitment of such Lender and the rights to the principal of, and interest on, any Loan made pursuant to such Commitment shall not be effective until such transfer is recorded on the Lender Register maintained by the Administrative Agent (on behalf of and acting solely for this purpose as a non-fiduciary agent of the applicable Borrower) with respect to ownership of such Commitment and Loans, including the name Loans and address of the Lenders and the principal amount of the Loans (and stated interest thereon). Prior prior to such recordation, recordation all amounts owing to the transferor with respect to such Commitment and Loans shall remain owing to the transferor. The registration of assignment or transfer of all or part of any Commitments and Loans shall be recorded by the Administrative Agent on the Lender Register only upon the acceptance by the Administrative Agent of a properly executed and delivered Assignment Agreement pursuant to this subsection subpart (c). The entries in the Lender Register shall be conclusive absent manifest error, and the Borrower, the Administrative Agent and each Lender shall treat each person whose name is recorded in the Lender Register as a Lender hereunder for all purposes of this Agreement notwithstanding any notice to the contrary. The Lender Register shall be available for the inspection by the Borrower and any Lender (solely with respect to its own interest in any Loan or Commitment) at any reasonable time and from time to time upon reasonable prior notice.
(v) [Reserved].
(vi) Nothing in this Section 11.06(c13.5(c) shall prevent or prohibit (Ai) any Lender that is a bank, trust company or other financial institution from pledging its Notes or Loans to a Federal Reserve Bank or to any Person that extends credit to such Lender in support of borrowings made by such Lender from such Federal Reserve Bank or such other PersonBank, or (Bii) any Lender that is a trust, limited liability company, partnership or other investment company from pledging its Notes or Loans to a trustee or agent for the benefit of holders of certificates or debt securities issued by it. No such pledge, or any assignment pursuant to or in lieu of an enforcement of such a pledge, shall relieve the transferor Lender from its obligations hereunder. In connection with any assignment of rights and obligations of any Defaulting Lender hereunder, no such assignment shall be effective unless and until, in addition to the other conditions thereto set forth herein, the parties to the assignment shall make such additional payments to the Administrative Agent in an aggregate amount sufficient, upon distribution thereof as appropriate (which may be outright payment, purchases by the assignee of participations or sub-participations, or other compensating actions, including funding, with the consent of the Borrower and the Administrative Agent, the applicable pro rata share of Loans previously requested but not funded by the Defaulting Lender, to each of which the applicable assignee and assignor hereby irrevocably consent), to (x) pay and satisfy in full all payment liabilities then owed by such Defaulting Lender to the Administrative Agent or any Lender hereunder (and interest accrued thereon) and (y) acquire (and fund as appropriate) its full pro rata share of all Loans and participations in Letters of Credit and Swing Loans in accordance with its Applicable Percentage. Notwithstanding the foregoing, in the event that any assignment of rights and obligations of any Defaulting Lender hereunder shall become effective under applicable law without compliance with the provisions of this paragraph, then the assignee of such interest shall be deemed to be a Defaulting Lender for all purposes of this Agreement until such compliance occurs.
Appears in 2 contracts
Samples: Credit Agreement (American Dental Partners Inc), Credit Agreement (American Dental Partners Inc)
Assignments by Lenders. (i) Any Lender may assign all, or if less than all, a fixed portion, of its Loans, LC Participations, Swing Loan Participations Loans and/or Commitments Commitment and its rights and obligations hereunder to one or more Eligible AssigneesAssignees (so long as after giving effect to each such assignment, such Lender’s Commitment shall not be less than $5,000,000), each of which shall become a party to this Agreement as a Lender by execution of an Assignment Agreement; provided, however, provided that:
(Ai) except in the case of (x) of an assignment of the entire remaining amount of the assigning Lender’s Loans and/or Commitments Commitment or (y) an assignment to another Lender, an Affiliate of such Lender or an Approved Fund with respect to such Lender, the aggregate amount of the Commitment so assigned (which for this purpose includes the Loans outstanding thereunder) ), shall not be less than $2,500,000 (unless otherwise mutually agreed upon by the Borrower and the Administrative Agent);5,000,000,
(Bii) in the case of any assignment to an Eligible Assignee at the time of any such assignment the Lender Register shall be deemed modified to reflect the Commitments of such new Lender and of the existing Lenders;,
(Ciii) upon surrender of the old Notes, if any, upon request of the new Lender, new Notes will be issued, at the Borrower’s expense, to such new Lender and to the assigning Lender, such new Notes to be in conformity with the requirements of Section 2.4(d) (with appropriate modifications) to the extent needed to reflect the revised Commitments;,
(Div) unless waived by the Administrative Agent, except in the case of an assignment to another Lender, an Affiliate of such Lender or an Approved Fund with respect to such Lender, or any Lenders in connection with the initial syndication of the Credit Facilities on or after the Closing Date, the Administrative Agent shall receive at the time of each such assignment, from the assigning or assignee Lender, the payment of a non-refundable assignment fee of $3,500; , and
(E) any , provided further, that such transfer or assignment shall require will not be effective until the prior written consent (such consent (except with Assignment Agreement in respect to assignments to competitors of the Borrower) not to be unreasonably withheld or delayed) of:
(1) the Borrower; provided that no consent of the Borrower shall be required for an assignment (x) thereof is recorded by a Lender to any Lender or a U.S. based-Affiliate of any Lender, (y) by a Lender to an Approved Fund and (z) during a Specified Event of Default (unless such assignment is to a Disqualified Lender). Notwithstanding anything in this Section 11.06 to the contrary, if the Borrower has not given the Administrative Agent written notice of its objection to an assignment of Loans within fifteen (15) Business Days after written notice of such assignment, on the Borrower shall be deemed to have consented to such assignment;
(2) the Administrative Agent; Lender Register maintained by it as provided that no consent of the Administrative Agent shall be required for an assignment of a Loan to a Lender, an Affiliate of a Lender or an Approved Fund; and
(3) each LC Issuer and Swing Line Lender; provided that no consent of an LC Issuer or Swing Line Lender shall be required for an assignment of a Loan to a Lender, an Affiliate of a Lender or an Approved Fund.
(ii) herein. To the extent of any assignment pursuant to this subsection (c), Section 12.4(c) the assigning Lender shall be relieved of its obligations hereunder with respect to its assigned Commitments.
(iii) . At the time of each assignment pursuant to this subsection (cSection 12.4(c) to a Person person that is not already a Lender hereunderhereunder and that is not a United States person (as such term is defined in Section 7701(a)(30) of the Code) for Federal income tax purposes, the respective assignee Lender shall provide to the Borrower and the Administrative Agent the applicable appropriate Internal Revenue Service Forms (and any necessary additional documentationand, if applicable an Exemption Certificate) described in Section 3.02(e5.4(b).
(iv. To the extent that an assignment of all or any portion of a Lender’s Commitment and related outstanding Obligations pursuant to this Section 12.4(c) With respect to any Lenderwould, at the transfer of any Commitment time of such assignment, result in increased costs under Section 2.6 from those being charged by the respective assigning Lender and the rights to the principal of, and interest on, any Loan made pursuant prior to such Commitment assignment, then the Borrower shall not be effective until obligated to pay such transfer is recorded on increased costs (although the Lender Register maintained by the Administrative Agent (on behalf of and acting solely for this purpose as a non-fiduciary agent Borrower shall be obligated to pay any other increased costs of the applicable Borrower) with respect to ownership of such Commitment and Loans, including type described above resulting from changes after the name and address date of the Lenders and the principal amount of the Loans (and stated interest thereonrespective assignment). Prior to such recordation, all amounts owing to the transferor with respect to such Commitment and Loans shall remain owing to the transferor. The registration of assignment or transfer of all or part of any Commitments and Loans shall be recorded by the Administrative Agent on the Lender Register only upon the acceptance by the Administrative Agent of a properly executed and delivered Assignment Agreement pursuant to this subsection (c). The entries in the Lender Register shall be conclusive absent manifest error, and the Borrower, the Administrative Agent and each Lender shall treat each person whose name is recorded in the Lender Register as a Lender hereunder for all purposes of this Agreement notwithstanding any notice to the contrary. The Lender Register shall be available for the inspection by the Borrower and any Lender (solely with respect to its own interest in any Loan or Commitment) at any reasonable time and from time to time upon reasonable prior notice.
(v) [Reserved].
(vi) Nothing in this Section 11.06(c12.4(c) shall prevent or prohibit (Ai) any Lender that is a bank, trust company or other financial institution from pledging its Notes or Loans to a Federal Reserve Bank or to any Person that extends credit to such Lender in support of borrowings made by such Lender from such Federal Reserve Bank or such other PersonBank, or (Bii) any Lender that is a trust, limited liability company, partnership or other investment company from pledging its Notes or Loans to a trustee or agent for the benefit of holders of certificates or debt securities issued by it. No such pledge, or any assignment pursuant to or in lieu of an enforcement of such a pledge, shall relieve the transferor Lender from its obligations hereunder. In connection with any assignment of rights and obligations of any Defaulting Lender hereunder, no such assignment shall be effective unless and until, in addition to the other conditions thereto set forth herein, the parties to the assignment shall make such additional payments to the Administrative Agent in an aggregate amount sufficient, upon distribution thereof as appropriate (which may be outright payment, purchases by the assignee of participations or sub-participations, or other compensating actions, including funding, with the consent of the Borrower and the Administrative Agent, the applicable pro rata share of Loans previously requested but not funded by the Defaulting Lender, to each of which the applicable assignee and assignor hereby irrevocably consent), to (x) pay and satisfy in full all payment liabilities then owed by such Defaulting Lender to the Administrative Agent or any Lender hereunder (and interest accrued thereon) and (y) acquire (and fund as appropriate) its full pro rata share of all Loans and participations in Letters of Credit and Swing Loans in accordance with its Applicable Percentage. Notwithstanding the foregoing, in the event that any assignment of rights and obligations of any Defaulting Lender hereunder shall become effective under applicable law without compliance with the provisions of this paragraph, then the assignee of such interest shall be deemed to be a Defaulting Lender for all purposes of this Agreement until such compliance occurs.
Appears in 2 contracts
Samples: Credit Agreement (American Dental Partners Inc), Credit Agreement (American Dental Partners Inc)
Assignments by Lenders. (i) Any Lender may assign all, to one or if less than all, more assignees all or a fixed portion, portion of its Loans, LC Participations, Swing Loan Participations and/or Commitments and its rights and obligations hereunder to one or more Eligible Assignees, each of which shall become a party to under this Agreement as (including all or a Lender by execution portion of an Assignment Agreementits Commitment); provided, however, provided that:
(Ai) except in the case of an assignment to a Lender or an Affiliate of a Lender: (x) in the case of an assignment of any LC Commitment, LC Loan or any LC Exposure, each of the Borrower, the Issuing Banks and the Co-Administrative Agents and (y) in the case of an assignment of Revolving Loans or Revolving Loan Commitments, each of the Borrower and the Revolving Loan Administrative Agent must in each case give their prior written consent to such assignment (which consent shall not be unreasonably withheld),
(ii) except in the case of an assignment to a Lender or an Affiliate of a Lender or an assignment of the entire remaining amount of the assigning Lender’s Loans and/or Commitments or Commitment, the amount of the Commitment of the assigning Lender subject to each such assignment (y) an assignment to another Lender, an Affiliate determined as of such Lender or an Approved Fund the date the Assignment and Acceptance with respect to such Lender, assignment is delivered to the aggregate amount of the Commitment so assigned (which for this purpose includes the Loans outstanding thereunderapplicable Administrative Agents) shall not be less than $2,500,000 (5,000,000 unless otherwise mutually agreed upon by each of the Borrower and the applicable Administrative Agent);Agents otherwise consent,
(Biii) in the case of any each partial assignment to an Eligible Assignee at the time of any such assignment the Lender Register shall be deemed modified to reflect the Commitments made as an assignment of such new Lender and a proportionate part of the existing Lenders;
(C) upon surrender of the old Notes, if any, upon request of the new Lender, new Notes will be issued, at the Borrower’s expense, to such new Lender and to all the assigning Lender’s rights and obligations under this Agreement, and
(iv) the parties to each assignment shall execute and deliver to the Administrative Agent an Assignment and Acceptance, and deliver to the Payment Agent a processing and recordation fee of $3,500; provided further that any consent of the Borrower otherwise required under this paragraph shall not be required if an Event of Default under clause (a) or (d) of Article VI has occurred and is continuing. Upon acceptance and recording pursuant to paragraph (d) of this Section, from and after the effective date specified in each Assignment and Acceptance, the assignee thereunder shall be a party hereto and, to the extent needed of the interest assigned by such Assignment and Acceptance, have the rights and obligations of a Lender (either an LC Lender or a Revolving Loan Lender, as applicable) under this Agreement, and the assigning Lender thereunder shall, to reflect the revised Commitments;
extent of the interest assigned by such Assignment and Acceptance, be released from its obligations under this Agreement (D) unless waived by the Administrative Agentand, except in the case of an assignment Assignment and Acceptance covering all of the assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to another Lenderbe a party hereto but shall continue to be entitled to the benefits of Sections 2.11, an Affiliate 2.12 and 8.03, but only to the extent relating to or in respect of periods prior to the effective date of such Lender Assignment and Acceptance). Any assignment or an Approved Fund with respect to such Lender, or any Lenders in connection with the initial syndication of the Credit Facilities on or after the Closing Date, the Administrative Agent shall receive at the time of each such assignment, from the assigning or assignee Lender, the payment of a non-refundable assignment fee of $3,500; and
(E) any such assignment shall require the prior written consent (such consent (except with respect to assignments to competitors of the Borrower) not to be unreasonably withheld or delayed) of:
(1) the Borrower; provided that no consent of the Borrower shall be required for an assignment (x) transfer by a Lender to any Lender of rights or a U.S. based-Affiliate of any Lender, (y) by a Lender to an Approved Fund and (z) during a Specified Event of Default (unless such assignment is to a Disqualified Lender). Notwithstanding anything in obligations under this Section 11.06 to the contrary, if the Borrower has Agreement that does not given the Administrative Agent written notice of its objection to an assignment of Loans within fifteen (15) Business Days after written notice of such assignment, the Borrower comply with this paragraph shall be deemed to have consented to such assignment;
(2) the Administrative Agent; provided that no consent of the Administrative Agent shall be required treated for an assignment of a Loan to a Lender, an Affiliate of a Lender or an Approved Fund; and
(3) each LC Issuer and Swing Line Lender; provided that no consent of an LC Issuer or Swing Line Lender shall be required for an assignment of a Loan to a Lender, an Affiliate of a Lender or an Approved Fund.
(ii) To the extent of any assignment pursuant to this subsection (c), the assigning Lender shall be relieved of its obligations hereunder with respect to its assigned Commitments.
(iii) At the time of each assignment pursuant to this subsection (c) to a Person that is not already a Lender hereunder, the respective assignee Lender shall provide to the Borrower and the Administrative Agent the applicable Internal Revenue Service Forms (and any necessary additional documentation) described in Section 3.02(e).
(iv) With respect to any Lender, the transfer of any Commitment of such Lender and the rights to the principal of, and interest on, any Loan made pursuant to such Commitment shall not be effective until such transfer is recorded on the Lender Register maintained by the Administrative Agent (on behalf of and acting solely for this purpose as a non-fiduciary agent of the applicable Borrower) with respect to ownership of such Commitment and Loans, including the name and address of the Lenders and the principal amount of the Loans (and stated interest thereon). Prior to such recordation, all amounts owing to the transferor with respect to such Commitment and Loans shall remain owing to the transferor. The registration of assignment or transfer of all or part of any Commitments and Loans shall be recorded by the Administrative Agent on the Lender Register only upon the acceptance by the Administrative Agent of a properly executed and delivered Assignment Agreement pursuant to this subsection (c). The entries in the Lender Register shall be conclusive absent manifest error, and the Borrower, the Administrative Agent and each Lender shall treat each person whose name is recorded in the Lender Register as a Lender hereunder for all purposes of this Agreement notwithstanding any notice to the contrary. The Lender Register shall be available for the inspection by the Borrower and any Lender (solely with respect to its own interest in any Loan or Commitment) at any reasonable time and from time to time upon reasonable prior notice.
(v) [Reserved].
(vi) Nothing in this Section 11.06(c) shall prevent or prohibit (A) any Lender that is as a bank, trust company or other financial institution from pledging its Notes or Loans to a Federal Reserve Bank or to any Person that extends credit to such Lender in support of borrowings made sale by such Lender from of a participation in such Federal Reserve Bank or such other Person, or (B) any Lender that is a trust, limited liability company, partnership or other investment company from pledging its Notes or Loans to a trustee or agent for the benefit of holders of certificates or debt securities issued by it. No such pledge, or any assignment pursuant to or in lieu of an enforcement of such a pledge, shall relieve the transferor Lender from its obligations hereunder. In connection with any assignment of rights and obligations of any Defaulting Lender hereunder, no such assignment shall be effective unless and until, in addition to the other conditions thereto set forth herein, the parties to the assignment shall make such additional payments to the Administrative Agent in an aggregate amount sufficient, upon distribution thereof as appropriate (which may be outright payment, purchases by the assignee of participations or sub-participations, or other compensating actions, including funding, with the consent of the Borrower and the Administrative Agent, the applicable pro rata share of Loans previously requested but not funded by the Defaulting Lender, to each of which the applicable assignee and assignor hereby irrevocably consent), to (x) pay and satisfy in full all payment liabilities then owed by such Defaulting Lender to the Administrative Agent or any Lender hereunder (and interest accrued thereon) and (y) acquire (and fund as appropriate) its full pro rata share of all Loans and participations in Letters of Credit and Swing Loans in accordance with its Applicable Percentage. Notwithstanding the foregoing, in the event that any assignment of rights and obligations of any Defaulting Lender hereunder shall become effective under applicable law without compliance with the provisions paragraph (e) of this paragraph, then the assignee of such interest shall be deemed to be a Defaulting Lender for all purposes of this Agreement until such compliance occursSection.
Appears in 2 contracts
Samples: Credit Agreement, Credit Agreement (Dynegy Holdings Inc)
Assignments by Lenders. (i) Any Lender may assign all, or if less than all, a fixed portion, of its Loans, LC Participations, Swing Loan Participations and/or Commitments Commitment and its rights and obligations hereunder to one or more Eligible Assignees, each of which shall become a party to this Agreement as a Lender by execution of an Assignment Agreement; provided, however, provided that:
(Ai) except in the case of (x) an assignment of the entire remaining amount of the assigning Lender’s Loans and/or Commitments Commitment or (y) an assignment to another Lender, an Affiliate of such Lender or an Approved Fund with respect to such Lender, the aggregate amount of the each such assignment of such Commitment so assigned (which for this purpose includes the Loans outstanding thereunder) ), shall not be less than $2,500,000 5,000,000 (unless otherwise mutually agreed upon by the Borrower and the Administrative Agentor, if greater, in integral multiples of $1,000,000);,
(Bii) in the case of any assignment to an Eligible Assignee at the time of any such assignment the Lender Register shall be deemed modified to reflect the Commitments of such new Lender and of the existing Lenders;,
(Ciii) upon surrender of the old Notes, if any, upon request of the new Lender, new Notes will be issued, at the Borrower’s expense, to such new Lender and to the assigning Lender, such new Notes to be in conformity with the requirements of Section 2.6 (with appropriate modifications) to the extent needed to reflect the revised Commitments;,
(Div) unless waived by the Administrative Agent, except in the case of an assignment to another Lender, an Affiliate of such Lender or an Approved Fund with respect to such Lender, or any Lenders in connection with the initial syndication of the Credit Facilities on or after the Closing Date, the Administrative Agent shall receive at the time of each such assignment, from the assigning or assignee Lender, the payment of a non-refundable assignment fee of $3,500; , and
(E) any , provided further, that such transfer or assignment shall require will not be effective until the prior written consent (such consent (except with Assignment Agreement in respect to assignments to competitors of the Borrower) not to be unreasonably withheld or delayed) of:
(1) the Borrower; provided that no consent of the Borrower shall be required for an assignment (x) thereof is recorded by a Lender to any Lender or a U.S. based-Affiliate of any Lender, (y) by a Lender to an Approved Fund and (z) during a Specified Event of Default (unless such assignment is to a Disqualified Lender). Notwithstanding anything in this Section 11.06 to the contrary, if the Borrower has not given the Administrative Agent written notice of its objection to an assignment of Loans within fifteen (15) Business Days after written notice of such assignment, on the Borrower shall be deemed to have consented to such assignment;
(2) the Administrative Agent; Lender Register maintained by it as provided that no consent of the Administrative Agent shall be required for an assignment of a Loan to a Lender, an Affiliate of a Lender or an Approved Fund; and
(3) each LC Issuer and Swing Line Lender; provided that no consent of an LC Issuer or Swing Line Lender shall be required for an assignment of a Loan to a Lender, an Affiliate of a Lender or an Approved Fund.
(ii) herein. To the extent of any assignment pursuant to this subsection (c), Section 11.4(c) the assigning Lender shall be relieved of its obligations hereunder with respect to its assigned Commitments.
(iii) . At the time of each assignment pursuant to this subsection (cSection 11.4(c) to a Person that is not already a Lender hereunderhereunder and that is not a United States Person (as such term is defined in Section 7701(a)(30) of the Code) for Federal income tax purposes, the respective assignee Lender shall provide to the Borrower and the Administrative Agent the applicable appropriate Internal Revenue Service Forms (and any necessary additional documentationand, if applicable, an Exemption Certificate) described in Section 3.02(e4.5(b).
(iv. To the extent that an assignment of all or any portion of a Lender’s Commitment and related outstanding Obligations pursuant to this Section 11.4(c) With respect to any Lenderwould, at the transfer of any Commitment time of such assignment, result in increased costs under Section 4.5 from those being charged by the respective assigning Lender and the rights to the principal of, and interest on, any Loan made pursuant prior to such Commitment assignment, then the Borrower shall not be effective until obligated to pay such transfer is recorded on increased costs (although the Lender Register maintained by the Administrative Agent (on behalf of and acting solely for this purpose as a non-fiduciary agent Borrower shall be obligated to pay any other increased costs of the applicable Borrower) with respect to ownership of such Commitment and Loans, including type described above resulting from changes after the name and address date of the Lenders and the principal amount of the Loans (and stated interest thereonrespective assignment). Prior to such recordation, all amounts owing to the transferor with respect to such Commitment and Loans shall remain owing to the transferor. The registration of assignment or transfer of all or part of any Commitments and Loans shall be recorded by the Administrative Agent on the Lender Register only upon the acceptance by the Administrative Agent of a properly executed and delivered Assignment Agreement pursuant to this subsection (c). The entries in the Lender Register shall be conclusive absent manifest error, and the Borrower, the Administrative Agent and each Lender shall treat each person whose name is recorded in the Lender Register as a Lender hereunder for all purposes of this Agreement notwithstanding any notice to the contrary. The Lender Register shall be available for the inspection by the Borrower and any Lender (solely with respect to its own interest in any Loan or Commitment) at any reasonable time and from time to time upon reasonable prior notice.
(v) [Reserved].
(vi) Nothing in this Section 11.06(c11.4(c) shall prevent or prohibit (Ai) any Lender that is a bank, trust company or other financial institution from pledging its Notes or Loans to a Federal Reserve Bank or to any Person that extends credit to such Lender in support of borrowings made by such Lender from such Federal Reserve Bank or such other PersonBank, or (Bii) any Lender that is a trust, limited liability company, partnership or other investment company from pledging its Notes or Loans to a trustee or agent for the benefit of holders of certificates or debt securities issued by it. No such pledge, or any assignment pursuant to or in lieu of an enforcement of such a pledge, shall relieve the transferor Lender from its obligations hereunder. In connection with any assignment of rights and obligations of any Defaulting Lender hereunder, no such assignment shall be effective unless and until, in addition to the other conditions thereto set forth herein, the parties to the assignment shall make such additional payments to the Administrative Agent in an aggregate amount sufficient, upon distribution thereof as appropriate (which may be outright payment, purchases by the assignee of participations or sub-participations, or other compensating actions, including funding, with the consent of the Borrower and the Administrative Agent, the applicable pro rata share of Loans previously requested but not funded by the Defaulting Lender, to each of which the applicable assignee and assignor hereby irrevocably consent), to (x) pay and satisfy in full all payment liabilities then owed by such Defaulting Lender to the Administrative Agent or any Lender hereunder (and interest accrued thereon) and (y) acquire (and fund as appropriate) its full pro rata share of all Loans and participations in Letters of Credit and Swing Loans in accordance with its Applicable Percentage. Notwithstanding the foregoing, in the event that any assignment of rights and obligations of any Defaulting Lender hereunder shall become effective under applicable law without compliance with the provisions of this paragraph, then the assignee of such interest shall be deemed to be a Defaulting Lender for all purposes of this Agreement until such compliance occurs.
Appears in 2 contracts
Samples: Credit Agreement (DPL Inc), Credit Agreement (Dayton Power & Light Co)
Assignments by Lenders. (i) Any Lender may assign all, or if less than all, a fixed portion, of its Loans, LC Participations, Swing Loan Participations Loans and/or Commitments Commitment and its rights and obligations hereunder to one or more Eligible Assignees, each of which shall become a party to this Agreement as a Lender by execution of an Assignment Agreement; provided, however, provided that:
(Ai) except in the case of (x) an assignment of the entire remaining amount of the assigning Lender’s Loans and/or Commitments Commitment or (y) an assignment to another Lender, an Affiliate of such Lender or an Approved Fund with respect to such Lender, the aggregate amount of the each such assignment of such Commitment so assigned (which for this purpose includes the Loans outstanding thereunder) ), shall not be less than $2,500,000 5,000,000 (unless otherwise mutually agreed upon by the Borrower and the Administrative Agentor, if greater, in integral multiples of $1,000,000 in excess thereof);,
(Bii) the Swing Line Lender may only assign its Swing Line Commitment and its Swing Line Loans as an entirety and only if the assignee thereof is or becomes a Lender with a Revolving Commitment,
(iii) in the case of any assignment to an Eligible Assignee at the time of any such assignment the Lender Register shall be deemed modified to reflect the Commitments of such new Lender and of the existing Lenders;,
(Civ) upon surrender of the old Notes, if any, upon request of the new Lender, new Notes will be issued, at the Borrower’s expense, to such new Lender and to the assigning Lender, such new Notes to be in conformity with the requirements of Section 2.4 (with appropriate modifications) to the extent needed to reflect the revised Commitments;,
(Dv) unless waived by the Administrative Agent, except in the case of an assignment to another Lender, an Affiliate of such Lender or an Approved Fund with respect to such Lender, or any Lenders in connection with the initial syndication of the Credit Facilities on or after the Closing Date, the Administrative Agent shall receive at the time of each such assignment, from the assigning or assignee Lender, the payment of a non-refundable assignment fee of $3,500; , and
(E) any , provided further, that such transfer or assignment shall require will not be effective until the prior written consent (such consent (except with Assignment Agreement in respect to assignments to competitors of the Borrower) not to be unreasonably withheld or delayed) of:
(1) the Borrower; provided that no consent of the Borrower shall be required for an assignment (x) thereof is recorded by a Lender to any Lender or a U.S. based-Affiliate of any Lender, (y) by a Lender to an Approved Fund and (z) during a Specified Event of Default (unless such assignment is to a Disqualified Lender). Notwithstanding anything in this Section 11.06 to the contrary, if the Borrower has not given the Administrative Agent written notice of its objection to an assignment of Loans within fifteen (15) Business Days after written notice of such assignment, on the Borrower shall be deemed to have consented to such assignment;
(2) the Administrative Agent; Lender Register maintained by it as provided that no consent of the Administrative Agent shall be required for an assignment of a Loan to a Lender, an Affiliate of a Lender or an Approved Fund; and
(3) each LC Issuer and Swing Line Lender; provided that no consent of an LC Issuer or Swing Line Lender shall be required for an assignment of a Loan to a Lender, an Affiliate of a Lender or an Approved Fund.
(ii) herein. To the extent of any assignment pursuant to this subsection (c), Section 12.4(c) the assigning Lender shall be relieved of its obligations hereunder with respect to its assigned Commitments.
(iii) . At the time of each assignment pursuant to this subsection (cSection 12.4(c) to a Person that is not already a Lender hereunderhereunder and that is not a United States Person (as such term is defined in Section 7701(a)(30) of the Code) for Federal income tax purposes, the respective assignee Lender shall provide to the Borrower Borrowers and the Administrative Agent the applicable appropriate Internal Revenue Service Forms (and any necessary additional documentationand, if applicable an Exemption Certificate) described in Section 3.02(e5.5(b).
(iv. To the extent that an assignment of all or any portion of a Lender’s Commitment and related outstanding Obligations pursuant to this Section 12.4(c) With respect to any Lenderwould, at the transfer of any Commitment time of such assignment, result in increased costs under Section 5.5 from those being charged by the respective assigning Lender and the rights to the principal of, and interest on, any Loan made pursuant prior to such Commitment assignment, then the Borrowers shall not be effective until obligated to pay such transfer is recorded on increased costs (although the Lender Register maintained by the Administrative Agent (on behalf of and acting solely for this purpose as a non-fiduciary agent Borrowers shall be obligated to pay any other increased costs of the applicable Borrower) with respect to ownership of such Commitment and Loans, including type described above resulting from changes after the name and address date of the Lenders and the principal amount of the Loans (and stated interest thereonrespective assignment). Prior to such recordation, all amounts owing to the transferor with respect to such Commitment and Loans shall remain owing to the transferor. The registration of assignment or transfer of all or part of any Commitments and Loans shall be recorded by the Administrative Agent on the Lender Register only upon the acceptance by the Administrative Agent of a properly executed and delivered Assignment Agreement pursuant to this subsection (c). The entries in the Lender Register shall be conclusive absent manifest error, and the Borrower, the Administrative Agent and each Lender shall treat each person whose name is recorded in the Lender Register as a Lender hereunder for all purposes of this Agreement notwithstanding any notice to the contrary. The Lender Register shall be available for the inspection by the Borrower and any Lender (solely with respect to its own interest in any Loan or Commitment) at any reasonable time and from time to time upon reasonable prior notice.
(v) [Reserved].
(vi) Nothing in this Section 11.06(c12.4(c) shall prevent or prohibit (Ai) any Lender that is a bank, trust company or other financial institution from pledging its Notes or Loans to a Federal Reserve Bank or to any Person that extends credit to such Lender in support of borrowings made by such Lender from such Federal Reserve Bank or such other PersonBank, or (Bii) any Lender that is a trust, limited liability company, partnership or other investment company from pledging its Notes or Loans to a trustee or agent for the benefit of holders of certificates or debt securities issued by it. No such pledge, or any assignment pursuant to or in lieu of an enforcement of such a pledge, shall relieve the transferor Lender from its obligations hereunder. In connection with any assignment of rights and obligations of any Defaulting Lender hereunder, no such assignment shall be effective unless and until, in addition to the other conditions thereto set forth herein, the parties to the assignment shall make such additional payments to the Administrative Agent in an aggregate amount sufficient, upon distribution thereof as appropriate (which may be outright payment, purchases by the assignee of participations or sub-participations, or other compensating actions, including funding, with the consent of the Borrower and the Administrative Agent, the applicable pro rata share of Loans previously requested but not funded by the Defaulting Lender, to each of which the applicable assignee and assignor hereby irrevocably consent), to (x) pay and satisfy in full all payment liabilities then owed by such Defaulting Lender to the Administrative Agent or any Lender hereunder (and interest accrued thereon) and (y) acquire (and fund as appropriate) its full pro rata share of all Loans and participations in Letters of Credit and Swing Loans in accordance with its Applicable Percentage. Notwithstanding the foregoing, in the event that any assignment of rights and obligations of any Defaulting Lender hereunder shall become effective under applicable law without compliance with the provisions of this paragraph, then the assignee of such interest shall be deemed to be a Defaulting Lender for all purposes of this Agreement until such compliance occurs.
Appears in 2 contracts
Samples: Credit Agreement (Ch Energy Group Inc), Credit Agreement (Central Hudson Gas & Electric Corp)
Assignments by Lenders. (i) Any Subject to the conditions set forth in paragraph (b)(ii) below, any Lender may assign all, or if less than all, a fixed portion, of its Loans, LC Participations, Swing Loan Participations and/or Commitments and its rights and obligations hereunder delegate to one or more Eligible Assignees, each Assignees all or a portion of which shall become a party to its rights and obligations under this Agreement as (including all or a Lender by execution portion of an Assignment Agreement; provided, however, that:
(A) except in the case of (x) an assignment of the entire remaining amount of the assigning Lender’s Loans and/or its Commitments or (y) an assignment to another Lender, an Affiliate of such Lender or an Approved Fund with respect to such Lender, the aggregate amount of the Commitment so assigned (which for this purpose includes and the Loans outstanding thereunder) shall not be less than $2,500,000 (unless otherwise mutually agreed upon by the Borrower and the Administrative Agent);
(B) in the case of any assignment to an Eligible Assignee at the time of any such assignment the Lender Register shall be deemed modified owing to reflect the Commitments of such new Lender and of the existing Lenders;
(Cit) upon surrender of the old Notes, if any, upon request of the new Lender, new Notes will be issued, at the Borrower’s expense, to such new Lender and to the assigning Lender, to the extent needed to reflect the revised Commitments;
(D) unless waived by the Administrative Agent, except in the case of an assignment to another Lender, an Affiliate of such Lender or an Approved Fund with respect to such Lender, or any Lenders in connection with the initial syndication of the Credit Facilities on or after the Closing Date, the Administrative Agent shall receive at the time of each such assignment, from the assigning or assignee Lender, the payment of a non-refundable assignment fee of $3,500; and
(E) any such assignment shall require the prior written consent (such consent (except with respect to assignments to competitors of the Borrower) not to be unreasonably withheld or delayed) of:
of (1A) the Borrower; provided that provided, that, no consent of the Borrower shall be required (1) for an assignment (x) by and delegation to a Lender, an Affiliate of a Lender to any Lender or a U.S. based-Affiliate of any Lender, (y) by a Lender to an Approved Fund and or (z2) during a Specified if an Event of Default under clause (unless such a), (b), (h) or (i) of Section 7.01 has occurred and is continuing; provided, further, that, that it shall be reasonable for the Borrower to withhold its consent to any assignment is to a Person known to or reasonably believed by it to be a Disqualified Lender). Notwithstanding anything in this Section 11.06 to the contraryInstitution or an Affiliate of a Disqualified Institution, if the Borrower has whether or not given the Administrative Agent written notice of its objection to an assignment of Loans within fifteen (15) Business Days after written notice of such assignmentPerson is listed as a Disqualified Institution at such time; provided, further, that, the Borrower shall be deemed to have consented to any such assignment;
assignment and delegation unless it shall object thereto by written notice to the Administrative Agent within ten Business Days after having received notice thereof, (2B) the Administrative Agent; provided that provided, that, no consent of the Administrative Agent shall be required for an assignment and delegation (1) of all or any portion of a Term Loan to a Lender, an Affiliate of a Lender or an Approved Fund; andFund or (2) of all or any portion of a Revolving Commitment or Revolving Loans to an existing Revolving Lender, an Affiliate of an existing Revolving Lender or an Approved Fund with respect to a Revolving Lender, (C) each Issuing Bank, in the case of any assignment and delegation of all or a portion of a Revolving Commitment or any Lender’s obligations in respect of its LC Exposure (other than to an existing Revolving Lender) and (D) the Swingline Lender, in the case of any assignment and delegation of all or a portion of a Revolving Commitment or any Lender’s obligations in respect of its Swingline Exposure (other than to an existing Revolving Lender).
(3ii) each LC Issuer Assignments and Swing Line Lender; provided that no consent delegations shall be subject to the following additional conditions: (A) except in the case of an LC Issuer or Swing Line Lender shall be required for an assignment of a Loan and delegation to a Lender, an Affiliate of a Lender or an Approved Fund.
(ii) To Fund or an assignment and delegation of the extent entire remaining amount of the assigning Lender’s Commitments or Loans of any assignment pursuant to this subsection (c)Class, the amount of the Commitments or Loans of the assigning Lender shall be relieved subject to each such assignment and delegation (determined as of its obligations hereunder the trade date specified in the Assignment and Assumption with respect to its assigned Commitments.
(iiisuch assignment and delegation or, if no trade date is so specified, as of the date the Assignment and Assumption with respect to such assignment and delegation is delivered to the Administrative Agent) At shall not be less than $5,000,000 or, in the time case of Term Loans, $1,000,000, unless each assignment pursuant to this subsection (c) to a Person that is not already a Lender hereunder, the respective assignee Lender shall provide to of the Borrower and the Administrative Agent otherwise consents (such consent not to be unreasonably withheld or delayed); provided, that, no such consent of the Borrower shall be required if an Event of Default under clause (a), (b), (h) or (i) of Section 7.01 has occurred and is continuing, (B) each partial assignment and delegation shall be made as an assignment and delegation of a proportionate part of all the assigning Lender’s rights and obligations under this Agreement; provided, that, this clause (B) shall not be construed to prohibit the assignment and delegation of a proportionate part of all the assigning Lender’s rights and obligations in respect of one Class of Commitments or Loans, (C) the parties to each assignment and delegation shall execute and deliver to the Administrative Agent an Assignment and Assumption, together with a processing and recordation fee of $3,500; provided, that, (1) only one such processing and recordation fee shall be payable in the event of simultaneous assignments and delegations from any Lender or its Approved Funds to one or more other Approved Funds of such Lender, (2) with respect to any assignment and delegation pursuant to Section 2.21(b) or 9.02(c), the parties hereto agree that such assignment and delegation may be effected pursuant to an Assignment and Assumption executed by the Borrower, the Administrative Agent and the assignee and that the Lender required to make such assignment and delegation need not be a party thereto and (3) the Administrative Agent may, in its sole discretion, elect to waive such processing and recordation fee in the case of any assignment, and (D) the assignee, if it shall not be a Lender, shall (1) deliver to the Administrative Agent and to the Borrower any tax forms required by Section 2.19(f) and (2) to the Administrative Agent an Administrative Questionnaire in which the assignee designates one or more credit contacts to whom all syndicate-level information (which may contain MNPI) will be made available and who may receive such information in accordance with the assignee’s compliance procedures and applicable Internal Revenue Service Forms law, including Federal, State and foreign securities laws.
(iii) Subject to acceptance and recording thereof pursuant to paragraph (b)(v) of this Section 9.04, from and after the effective date specified in each Assignment and Assumption, the assignee thereunder shall be a party hereto and, to the extent of the interest assigned and delegated by such Assignment and Assumption, have the rights and obligations of a Lender under this Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned and delegated by such Assignment and Assumption, be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption covering all the assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto but shall continue to be entitled to the benefits of (and subject to the obligations and limitations of) Sections 2.14, 2.17, 2.18 and 9.03 and to any necessary additional documentation) described fees payable hereunder that have accrued for such Lender’s account but have not yet been paid). Any assignment, delegation or other transfer by a Lender of rights or obligations under this Agreement that does not comply with this Section 9.04 shall be treated for purposes of this Agreement as a sale by such Lender of a participation in such rights and obligations in accordance with Section 3.02(e9.04(c).
(iv) With respect to any LenderThe Administrative Agent, the transfer of any Commitment of such Lender and the rights to the principal of, and interest on, any Loan made pursuant to such Commitment shall not be effective until such transfer is recorded on the Lender Register maintained by the Administrative Agent (on behalf of and acting solely for this purpose as a non-fiduciary agent of the applicable Borrower) with respect , shall maintain at one of its offices a copy of each Assignment and Assumption delivered to ownership of such Commitment it and Loans, including a register for the name and address recordation of the Lenders names and addresses of the Lenders, and the Commitment of, and principal amount (and stated interest) of the Loans (and stated interest thereon). Prior to such recordationLC Disbursements owing to, all amounts owing each Lender pursuant to the transferor with respect terms hereof from time to such Commitment and Loans shall remain owing to time (the transferor. The registration of assignment or transfer of all or part of any Commitments and Loans shall be recorded by the Administrative Agent on the Lender Register only upon the acceptance by the Administrative Agent of a properly executed and delivered Assignment Agreement pursuant to this subsection (c“Register”). The entries in the Lender Register shall be conclusive absent manifest error, and Holdings, the Borrower, the Administrative Agent Agent, the Issuing Banks and each Lender the Lenders shall treat each person Person whose name is recorded in the Lender Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement Agreement, notwithstanding any notice to the contrary. The Lender Register shall be available for the inspection by the Borrower and and, as to entries pertaining to it, any Lender (solely with respect to its own interest in Issuing Bank or any Loan or Commitment) Lender, at any reasonable time and from time to time upon reasonable prior notice.
(v) [Reserved].
Upon receipt by the Administrative Agent of a duly completed Assignment and Assumption executed by an assigning Lender and an assignee, the assignee’s completed Administrative Questionnaire and any tax forms required by Section 2.19(f) (viunless the assignee shall already be a Lender hereunder), the processing and recordation fee referred to in paragraph (b) Nothing in of this Section 11.06(c) shall prevent or prohibit (A) 9.04 and any Lender that is a bank, trust company or other financial institution from pledging its Notes or Loans to a Federal Reserve Bank or to any Person that extends credit written consent to such assignment and delegation required by paragraph (b) of this Section 9.04, the Administrative Agent shall accept such Assignment and Assumption and record the information contained therein in the Register; provided, that, the Administrative Agent shall not be required to accept such Assignment and Assumption or so record the information contained therein if the Administrative Agent reasonably believes that such Assignment and Assumption lacks any written consent required by this Section 9.04 or is otherwise not in proper form, it being acknowledged that the Administrative Agent shall have no duty or obligation (and shall incur no liability) with respect to obtaining (or confirming the receipt) of any such written consent or with respect to the form of (or any defect in) such Assignment and Assumption, any such duty and obligation being solely with the assigning Lender in support of borrowings made by such Lender from such Federal Reserve Bank or such other Person, or (B) any Lender that is a trust, limited liability company, partnership or other investment company from pledging its Notes or Loans to a trustee or agent for and the benefit of holders of certificates or debt securities issued by itassignee. No such pledge, assignment or any assignment pursuant to or in lieu of an enforcement of such a pledge, shall relieve the transferor Lender from its obligations hereunder. In connection with any assignment of rights and obligations of any Defaulting Lender hereunder, no such assignment delegation shall be effective for purposes of this Agreement unless it has been recorded in the Register as provided in this paragraph and, following such recording, unless otherwise determined by the Administrative Agent (such determination to be made in the sole discretion of the Administrative Agent, which determination may be conditioned on the consent of the assigning Lender and untilthe assignee), shall be effective notwithstanding any defect in addition the Assignment and Assumption relating thereto. Each assigning Lender and the assignee, by its execution and delivery of an Assignment and Assumption, shall be deemed to the other conditions thereto set forth herein, the parties to the assignment shall make such additional payments have represented to the Administrative Agent in an aggregate amount sufficient, upon distribution thereof as appropriate that all written consents required by this Section 9.04 with respect thereto (which may be outright payment, purchases by the assignee of participations or sub-participations, or other compensating actions, including funding, with than the consent of the Borrower and the Administrative Agent) have been obtained and that such Assignment and Assumption is otherwise duly completed and in proper form, the applicable pro rata share and each assignee, by its execution and delivery of Loans previously requested but not funded by the Defaulting Lenderan Assignment and Assumption, to each of which the applicable assignee and assignor hereby irrevocably consent), to (x) pay and satisfy in full all payment liabilities then owed by such Defaulting Lender to the Administrative Agent or any Lender hereunder (and interest accrued thereon) and (y) acquire (and fund as appropriate) its full pro rata share of all Loans and participations in Letters of Credit and Swing Loans in accordance with its Applicable Percentage. Notwithstanding the foregoing, in the event that any assignment of rights and obligations of any Defaulting Lender hereunder shall become effective under applicable law without compliance with the provisions of this paragraph, then the assignee of such interest shall be deemed to be a Defaulting have represented to the assigning Lender for all purposes of this Agreement until and the Administrative Agent that such compliance occursassignee is an Eligible Assignee.
Appears in 2 contracts
Samples: Credit Agreement (Trinet Group, Inc.), Credit Agreement (Trinet Group Inc)
Assignments by Lenders. (i) Any Lender may assign all, or if less than all, a fixed portion, any portion of its Loans, LC Participations, Swing Loan Participations Loans and/or Commitments and its rights and obligations hereunder to one or more Eligible Assignees, each of which shall become a party to this Agreement as a Lender by execution of an Assignment Agreement; provided, however, that:
(A) except in the case of (x) of an assignment of the entire remaining amount of the assigning Lender’s Loans and/or Commitments or (y) an assignment to another Lender, an Affiliate of such Lender or an Approved Fund with respect to such of any Lender, the aggregate amount of the Commitment so assigned (which for this purpose includes the Loans outstanding thereunder) shall not be less than $2,500,000 (unless otherwise mutually agreed upon by the Borrower and the Administrative Agent)5,000,000;
(B) in the case of any assignment to an Eligible Assignee at the effective time of any such assignment assignment, as determined by the Administrative Agent in accordance with subsection (iv) below, the Lender Register shall be deemed modified to reflect the Commitments of such new Lender and of the existing Lenders;
(C) upon surrender of the old Notes, if any, upon request of the new Lender, new Notes will be issued, at the Borrower’s expense, to such new Lender and to the assigning Lender, to the extent needed to reflect the revised Commitments;; and
(D) unless waived by the Administrative Agent, except in the case of an assignment to another Lender, an Affiliate of such Lender or an Approved Fund with respect to such Lender, or any Lenders in connection with the initial syndication of the Credit Facilities on or after the Closing Date, the Administrative Agent shall receive at the time of each such assignment, from the assigning or assignee Lender, the payment of a non-refundable assignment fee of $3,500; and
3,500 (E) any such assignment shall require the prior written consent (such consent (except with respect to treating multiple contemporaneous assignments to competitors or from Approved Funds of the Borrower) not to be unreasonably withheld or delayed) of:
(1) the Borrower; provided that no consent of the Borrower shall be required a single Lender as one assignment for an assignment (x) by a Lender to any Lender or a U.S. based-Affiliate of any Lender, (y) by a Lender to an Approved Fund and (z) during a Specified Event of Default (unless such assignment is to a Disqualified Lender). Notwithstanding anything in this Section 11.06 to the contrary, if the Borrower has not given the Administrative Agent written notice of its objection to an assignment of Loans within fifteen (15) Business Days after written notice purposes of such assignment, the Borrower shall be deemed to have consented to such assignment;
(2) the Administrative Agent; provided that no consent of the Administrative Agent shall be required for an assignment of a Loan to a Lender, an Affiliate of a Lender or an Approved Fund; and
(3) each LC Issuer and Swing Line Lender; provided that no consent of an LC Issuer or Swing Line Lender shall be required for an assignment of a Loan to a Lender, an Affiliate of a Lender or an Approved Fundrequirement).
(ii) To the extent of any assignment pursuant to this subsection subpart (c), the assigning Lender shall be relieved of its obligations hereunder with respect to its assigned Commitments.
(iii) At the time of each assignment pursuant to this subsection subpart (c) to a Person that is not already a Lender hereunder, the respective assignee Lender shall provide to the Borrower and the Administrative Agent the applicable Internal Revenue Service Forms (and any necessary additional documentation) described in Section 3.02(e3.03(b).
(iv) With respect to any Lender, the transfer of any Commitment of such Lender and the rights to the principal of, and interest on, any Loan made pursuant to such Commitment (whether or not evidenced by a Note) shall not be effective until such transfer is recorded on the Lender Register maintained by the Administrative Agent (on behalf of and acting solely for this purpose as a non-fiduciary agent of the applicable Borrower) with respect to ownership of such Commitment and Loans, including the name Loans and address of the Lenders and the principal amount of the Loans (and stated interest thereon). Prior prior to such recordation, recordation all amounts owing to the transferor with respect to such Commitment and Loans shall remain owing to the transferor. The registration of assignment or transfer of all or part of any Commitments and Loans shall be recorded by the Administrative Agent on the Lender Register only upon the acceptance by the Administrative Agent of a properly executed and delivered Assignment Agreement pursuant to this subsection subpart (c). The entries in the Lender Register shall be conclusive absent manifest error, and the Borrower, the Administrative Agent and each Lender shall treat each person whose name is recorded in the Lender Register as a Lender hereunder for all purposes of this Agreement notwithstanding any notice to the contrary. The Lender Register shall be available for the inspection by the Borrower and any Lender (solely with respect to its own interest in any Loan or Commitment) at any reasonable time and from time to time upon reasonable prior notice.
(v) [Reserved].
(vi) Nothing in this Section 11.06(c) shall prevent or prohibit (A) any Lender that is a bank, trust company or other financial institution from pledging its Notes or Loans to a Federal Reserve Bank or to any Person that extends credit to such Lender in support of borrowings made by such Lender from such Federal Reserve Bank or such other PersonBank, or (B) any Lender that is a trust, limited liability company, partnership partnership, fund or other investment company from pledging its Notes or Loans to a trustee or agent for the benefit of holders of certificates or debt securities issued by it. No such pledge, or any assignment pursuant to or in lieu of an enforcement of such a pledge, shall relieve the transferor Lender from its obligations hereunder. In connection with any assignment of rights and obligations of any Defaulting Lender hereunder, no such assignment shall be effective unless and until, in addition to the other conditions thereto set forth herein, the parties to the assignment shall make such additional payments to the Administrative Agent in an aggregate amount sufficient, upon distribution thereof as appropriate (which may be outright payment, purchases by the assignee of participations or sub-participations, or other compensating actions, including funding, with the consent of the Borrower and the Administrative Agent, the applicable pro rata share of Loans previously requested but not funded by the Defaulting Lender, to each of which the applicable assignee and assignor hereby irrevocably consent), to (x) pay and satisfy in full all payment liabilities then owed by such Defaulting Lender to the Administrative Agent or any Lender hereunder (and interest accrued thereon) and (y) acquire (and fund as appropriate) its full pro rata share of all Loans and participations in Letters of Credit and Swing Loans in accordance with its Applicable Percentage. Notwithstanding the foregoing, in the event that any assignment of rights and obligations of any Defaulting Lender hereunder shall become effective under applicable law without compliance with the provisions of this paragraph, then the assignee of such interest shall be deemed to be a Defaulting Lender for all purposes of this Agreement until such compliance occurs.
Appears in 2 contracts
Samples: Term Loan Agreement (Cooper Companies Inc), Term Loan Agreement (Cooper Companies Inc)
Assignments by Lenders. (i) Any Lender may assign all, or if less than all, a fixed portion, of its Loans, LC Participations, Swing Loan Participations and/or Commitments and its rights and obligations hereunder to one or more Eligible Assignees, each of which shall become a party to this Agreement as a Lender by execution of an Assignment Agreement; provided, however, that:
(A) except in the case of (x) an assignment of the entire remaining amount of the assigning Lender’s Loans and/or Commitments or (y) an assignment to another Lender, an Affiliate of such Lender or an Approved Fund with respect to such Lender, the aggregate amount of the Commitment so assigned (which for this purpose includes the Loans outstanding thereunder) shall not be less than $2,500,000 (unless otherwise mutually agreed upon by the Borrower and the Administrative Agent)2,500,000;
(B) in the case of any assignment to an Eligible Assignee at the time of any such assignment the Lender Register shall be deemed modified to reflect the Commitments of such new Lender and of the existing Lenders;
(C) upon surrender of the old Notes, if any, upon request of the new Lender, new Notes will be issued, at the Borrower’s expense, to such new Lender and to the assigning Lender, to the extent needed to reflect the revised Commitments;
(D) unless waived by the Administrative Agent, except in the case of an assignment to another Lender, an Affiliate of such Lender or an Approved Fund with respect to such Lender, or any Lenders in connection with the initial syndication of the Credit Facilities on or after the Closing Date, the Administrative Agent shall receive at the time of each such assignment, from the assigning or assignee Lender, the payment of a non-refundable assignment fee of $3,500; and;
(E) any no such assignment shall require the prior written consent (such consent (except with respect be made to assignments to competitors any Defaulting Lender or any of its Subsidiaries, or any Person who, upon becoming a Lender hereunder, would constitute any of the Borrower) not to be unreasonably withheld or delayed) of:
(1) the Borrower; provided that no consent of the Borrower shall be required for an assignment (x) by a Lender to any Lender or a U.S. based-Affiliate of any Lender, (y) by a Lender to an Approved Fund and (z) during a Specified Event of Default (unless such assignment is to a Disqualified Lender). Notwithstanding anything foregoing Persons described in this Section 11.06 to the contrary, if the Borrower has not given the Administrative Agent written notice of its objection to an assignment of Loans within fifteen sub-clause (15) Business Days after written notice of such assignment, the Borrower shall be deemed to have consented to such assignment;
(2) the Administrative Agent; provided that no consent of the Administrative Agent shall be required for an assignment of a Loan to a Lender, an Affiliate of a Lender or an Approved Fund; and
(3) each LC Issuer and Swing Line Lender; provided that no consent of an LC Issuer or Swing Line Lender shall be required for an assignment of a Loan to a Lender, an Affiliate of a Lender or an Approved Fund.E)
(ii) To the extent of any assignment pursuant to this subsection subpart (c), the assigning Lender shall be relieved of its obligations hereunder with respect to its assigned CommitmentsCommitments provided, that except to the extent otherwise expressly agreed by the affected parties, no assignment by a Defaulting Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender’s having been a Defaulting Lender.
(iii) At the time of each assignment pursuant to this subsection subpart (c) ), to a Person that is not already a Lender hereunderhereunder and that is not a U.S. Person for Federal income tax purposes, the respective assignee Lender shall provide to the Borrower and the Administrative Agent the applicable Internal Revenue Service Forms (and any necessary additional documentation) described in Section 3.02(e3.03(g).
(iv) With respect to any Lender, the transfer of any Commitment of such Lender and the rights to the principal of, and interest on, any Loan made pursuant to such Commitment shall not be effective until such transfer is recorded on the Lender Register maintained by the Administrative Agent (on behalf of and acting solely for this purpose as a non-fiduciary agent of the applicable Borrower) with respect to ownership of such Commitment and Loans, including the name and address of the Lenders and the principal amount of the Loans (and stated interest thereon). Prior to such recordation, all amounts owing to the transferor with respect to such Commitment and Loans shall remain owing to the transferor. The registration of assignment or transfer of all or part of any Commitments and Loans shall be recorded by the Administrative Agent on the Lender Register only upon the acceptance by the Administrative Agent of a properly executed and delivered Assignment Agreement pursuant to this subsection subpart (c). The entries in the Lender Register shall be conclusive absent manifest error, and the Borrower, the Administrative Agent and each Lender shall treat each person whose name is recorded in the Lender Register as a Lender hereunder for all purposes of this Agreement notwithstanding any notice to the contrary. The Lender Register shall be available for the inspection by the Borrower and any Lender (solely with respect to its own interest in any Loan or Commitment) at any reasonable time and from time to time upon reasonable prior notice.
(v) [Reserved].
(vi) Nothing in this Section 11.06(c) shall prevent or prohibit (A) any Lender that is a bank, trust company or other financial institution from pledging its Notes or Loans to a Federal Reserve Bank or to any Person that extends credit to such Lender in support of borrowings made by such Lender from such Federal Reserve Bank or such other Person, or (B) any Lender that is a trust, limited liability company, partnership or other investment company from pledging its Notes or Loans to a trustee or agent for the benefit of holders of certificates or debt securities issued by it. No such pledge, or any assignment pursuant to or in lieu of an enforcement of such a pledge, shall relieve the transferor Lender from its obligations hereunder. .
(vi) In connection with any assignment of rights and obligations of any Defaulting Lender hereunder, no such assignment shall be effective unless and until, in addition to the other conditions thereto set forth herein, the parties to the assignment shall make such additional payments to the Administrative Agent in an aggregate amount sufficient, upon distribution thereof as appropriate (which may be outright payment, purchases by the assignee of participations or sub-participationssubparticipations, or other compensating actions, including funding, with the consent of the Borrower and the Administrative Agent, the applicable pro rata share of Loans previously requested but not funded by the Defaulting Lender, to each of which the applicable assignee and assignor hereby irrevocably consent), to (x) pay and satisfy in full all payment liabilities then owed by such Defaulting Lender to the Administrative Agent or any Agent, each LC Issuer, each Swing Line Lender and each other Lender hereunder (and interest accrued thereon) ), and (y) acquire (and fund as appropriate) its full pro rata share of all Loans and participations in Letters of Credit and Swing Loans in accordance with its Applicable Revolving Facility Percentage. Notwithstanding the foregoing, in the event that any assignment of rights and obligations of any Defaulting Lender hereunder shall become effective under applicable law without compliance with the provisions of this paragraph, then the assignee of such interest shall be deemed to be a Defaulting Lender for all purposes of this Agreement until such compliance occurs.
Appears in 1 contract
Assignments by Lenders. (i) Any Lender may assign all, or if less than all, a fixed portion, any portion of its Loans, LC Participations, Swing Loan Participations and/or Revolving Commitments and its rights and obligations hereunder to one or more Eligible Assignees, each of which shall become a party to this Agreement as a Lender by execution of an Assignment Agreement; provided, however, that:
(A) except in the case of (x) of an assignment of the entire remaining amount of the assigning Lender’s Loans and/or Revolving Commitments or (y) an assignment to another Lender, an Affiliate of such Lender or an Approved Fund with respect to such of any Lender, the aggregate amount of the Revolving Commitment so assigned (which for this purpose includes the Loans outstanding thereunder) shall not be less than $2,500,000 (unless otherwise mutually agreed upon by the Borrower and the Administrative Agent)5,000,000;
(B) in the case of any assignment to an Eligible Assignee at the effective time of any such assignment assignment, as determined by the Administrative Agent in accordance with subsection (iv) below, the Lender Register shall be deemed modified to reflect the Revolving Commitments of such new Lender and of the existing Lenders;
(C) upon surrender of the old Notes, if any, upon request of the new Lender, new Notes will be issued, at the Borrower’s expense, to such new Lender and to the assigning Lender, to the extent needed to reflect the revised Revolving Commitments;; and
(D) unless waived by the Administrative Agent, except in the case of an assignment to another Lender, an Affiliate of such Lender or an Approved Fund with respect to such Lender, or any Lenders in connection with the initial syndication of the Credit Facilities on or after the Closing Date, the Administrative Agent shall receive at the time of each such assignment, from the assigning or assignee Lender, the payment of a non-refundable assignment fee of $3,500; and
3,500 (E) any such assignment shall require the prior written consent (such consent (except with respect to treating multiple contemporaneous assignments to competitors or from Approved Funds of the Borrower) not to be unreasonably withheld or delayed) of:
(1) the Borrower; provided that no consent of the Borrower shall be required a single Lender as one assignment for an assignment (x) by a Lender to any Lender or a U.S. based-Affiliate of any Lender, (y) by a Lender to an Approved Fund and (z) during a Specified Event of Default (unless such assignment is to a Disqualified Lender). Notwithstanding anything in this Section 11.06 to the contrary, if the Borrower has not given the Administrative Agent written notice of its objection to an assignment of Loans within fifteen (15) Business Days after written notice purposes of such assignment, the Borrower shall be deemed to have consented to such assignment;
(2) the Administrative Agent; provided that no consent of the Administrative Agent shall be required for an assignment of a Loan to a Lender, an Affiliate of a Lender or an Approved Fund; and
(3) each LC Issuer and Swing Line Lender; provided that no consent of an LC Issuer or Swing Line Lender shall be required for an assignment of a Loan to a Lender, an Affiliate of a Lender or an Approved Fundrequirement).
(ii) To the extent of any assignment pursuant to this subsection subpart (c), the assigning Lender shall be relieved of its obligations hereunder with respect to its assigned Revolving Commitments.
(iii) At the time of each assignment pursuant to this subsection subpart (c) to a Person that is not already a Lender hereunder, the respective assignee Lender shall provide to the Borrower and the Administrative Agent the applicable Internal Revenue Service Forms (and any necessary additional documentation) described in Section 3.02(e)3.3(b) to the extent it is legally able to do so.
(iv) With respect to any Lender, the transfer of any Commitment commitment of such Lender and the rights to the principal of, and interest on, any Loan made pursuant to such Revolving Commitment shall not be effective until such transfer is recorded on the Lender Register maintained by the Administrative Agent (on behalf of and acting solely for this purpose as a non-fiduciary agent of the applicable Borrower) with respect to ownership of such Revolving Commitment and Loans, including the name Loans and address of the Lenders and the principal amount of the Loans (and stated interest thereon). Prior prior to such recordation, recordation all amounts owing to the transferor with respect to such Revolving Commitment and Loans shall remain owing to the transferor. The registration of assignment or transfer of all or part of any Revolving Commitments and Loans shall be recorded by the Administrative Agent on the Lender Register only upon the acceptance by the Administrative Agent of a properly executed and delivered Assignment Agreement pursuant to this subsection subpart (c). The entries in the Lender Register shall be conclusive absent manifest error, and the Borrower, the Administrative Agent and each Lender shall treat each person whose name is recorded in the Lender Register as a Lender hereunder for all purposes of this Agreement notwithstanding any notice to the contrary. The Lender Register shall be available for the inspection by the Borrower and any Lender (solely with respect to its own interest in any Loan or Commitment) at any reasonable time and from time to time upon reasonable prior notice.
(v) [Reserved].
(vi) Nothing in this Section 11.06(c) shall prevent or prohibit (A) any Lender that is a bank, trust company or other financial institution from pledging its Notes or Loans to a Federal Reserve Bank or to any Person that extends credit to such Lender in support of borrowings made by such Lender from such Federal Reserve Bank or such other PersonBank, or (B) any Lender that is a trust, limited liability company, partnership partnership, fund or other investment company from pledging its Notes or Loans to a trustee or agent for the benefit of holders of certificates or debt securities issued by it. No such pledge, or any assignment pursuant to or in lieu of an enforcement of such a pledge, shall relieve the transferor Lender from its obligations hereunder. In connection with any assignment of rights and obligations of any Defaulting Lender hereunder, no such assignment shall be effective unless and until, in addition to the other conditions thereto set forth herein, the parties to the assignment shall make such additional payments to the Administrative Agent in an aggregate amount sufficient, upon distribution thereof as appropriate (which may be outright payment, purchases by the assignee of participations or sub-participations, or other compensating actions, including funding, with the consent of the Borrower and the Administrative Agent, the applicable pro rata share of Loans previously requested but not funded by the Defaulting Lender, to each of which the applicable assignee and assignor hereby irrevocably consent), to (x) pay and satisfy in full all payment liabilities then owed by such Defaulting Lender to the Administrative Agent or any Lender hereunder (and interest accrued thereon) and (y) acquire (and fund as appropriate) its full pro rata share of all Loans and participations in Letters of Credit and Swing Loans in accordance with its Applicable Percentage. Notwithstanding the foregoing, in the event that any assignment of rights and obligations of any Defaulting Lender hereunder shall become effective under applicable law without compliance with the provisions of this paragraph, then the assignee of such interest shall be deemed to be a Defaulting Lender for all purposes of this Agreement until such compliance occurs.
Appears in 1 contract
Samples: Credit Agreement (RBC Bearings INC)
Assignments by Lenders. (i) Any Lender may assign all, or if less than all, a fixed portion, of its Loans, LC Participations, Swing Loan Participations and/or Commitments and its rights and obligations hereunder to one or more Eligible Assignees, each of which shall become a party to this Agreement as a Lender by execution of an Assignment Agreement; provided, however, that:
(A) except in the case of (x) an assignment of the entire remaining amount of the assigning Lender’s Loans and/or Commitments or (y) an assignment to another Lender, an Affiliate of such Lender or an Approved Fund with respect to such Lender, the aggregate amount of the Commitment so assigned (which for this purpose includes the Loans outstanding thereunder) shall not be less than $2,500,000 (unless otherwise mutually agreed upon by the Borrower and the Administrative Agent)2,500,000;
(B) in the case of any assignment to an Eligible Assignee at the time of any such assignment the Lender Register shall be deemed modified to reflect the Commitments of such new Lender and of the existing Lenders;
(C) upon surrender of the old Notes, if any, upon request of the new Lender, new Notes will be issued, at the Borrower’s expense, to such new Lender and to the assigning Lender, to the extent needed to reflect the revised Commitments;; and
(D) unless waived by the Administrative Agent, except in the case of an assignment to another Lender, an Affiliate of such Lender or an Approved Fund with respect to such Lender, or any Lenders in connection with the initial syndication of the Credit Facilities on or after the Closing Date, the Administrative Agent shall receive at the time of each such assignment, from the assigning or assignee Lender, the payment of a non-refundable assignment fee of $3,500; and
(E) any such assignment shall require the prior written consent (such consent (except with respect to assignments to competitors of the Borrower) not to be unreasonably withheld or delayed) of:
(1) the Borrower; provided that no consent of the Borrower shall be required for an assignment (x) by a Lender to any Lender or a U.S. based-Affiliate of any Lender, (y) by a Lender to an Approved Fund and (z) during a Specified Event of Default (unless such assignment is to a Disqualified Lender). Notwithstanding anything in this Section 11.06 to the contrary, if the Borrower has not given the Administrative Agent written notice of its objection to an assignment of Loans within fifteen (15) Business Days after written notice of such assignment, the Borrower shall be deemed to have consented to such assignment;
(2) the Administrative Agent; provided that no consent of the Administrative Agent shall be required for an assignment of a Loan to a Lender, an Affiliate of a Lender or an Approved Fund; and
(3) each LC Issuer and Swing Line Lender; provided that no consent of an LC Issuer or Swing Line Lender shall be required for an assignment of a Loan to a Lender, an Affiliate of a Lender or an Approved Fund.
(ii) To the extent of any assignment pursuant to this subsection subpart (c), the assigning Lender shall be relieved of its obligations hereunder with respect to its assigned Commitments.
(iii) At the time of each assignment pursuant to this subsection subpart (c) ), to a Person that is not already a Lender hereunderhereunder and that is not a United States Person (as such term is defined in Section 7701(a)(30) of the Code) for Federal income tax purposes, the respective assignee Lender shall provide to the Borrower and the Administrative Agent the applicable Internal Revenue Service Forms (and any necessary additional documentation) described in Section 3.02(e3.03(b).
(iv) With respect to any Lender, the transfer of any Commitment of such Lender and the rights to the principal of, and interest on, any Loan made pursuant to such Commitment shall not be effective until such transfer is recorded on the Lender Register maintained by the Administrative Agent (on behalf of and acting solely for this purpose as a non-fiduciary agent of the applicable Borrower) with respect to ownership of such Commitment and Loans, including the name Loans and address of the Lenders and the principal amount of the Loans (and stated interest thereon). Prior prior to such recordation, recordation all amounts owing to the transferor with respect to such Commitment and Loans shall remain owing to the transferor. The registration of assignment or transfer of all or part of any Commitments and Loans shall be recorded by the Administrative Agent on the Lender Register only upon the acceptance by the Administrative Agent of a properly executed and delivered Assignment Agreement pursuant to this subsection subpart (c). The entries in the Lender Register shall be conclusive absent manifest error, and the Borrower, the Administrative Agent and each Lender shall treat each person whose name is recorded in the Lender Register as a Lender hereunder for all purposes of this Agreement notwithstanding any notice to the contrary. The Lender Register shall be available for the inspection by the Borrower and any Lender (solely with respect to its own interest in any Loan or Commitment) at any reasonable time and from time to time upon reasonable prior notice.
(v) [Reserved].
(vi) Nothing in this Section 11.06(c) shall prevent or prohibit (A) any Lender that is a bank, trust company or other financial institution from pledging its Notes or Loans to a Federal Reserve Bank or to any Person that extends credit to such Lender in support of borrowings made by such Lender from such Federal Reserve Bank or such other PersonBank, or (B) any Lender that is a trust, limited liability company, partnership or other investment company from pledging its Notes or Loans to a trustee or agent for the benefit of holders of certificates or debt securities issued by it. No such pledge, or any assignment pursuant to or in lieu of an enforcement of such a pledge, shall relieve the transferor Lender from its obligations hereunder. In connection with any assignment of rights and obligations of any Defaulting Lender hereunder, no such assignment shall be effective unless and until, in addition to the other conditions thereto set forth herein, the parties to the assignment shall make such additional payments to the Administrative Agent in an aggregate amount sufficient, upon distribution thereof as appropriate (which may be outright payment, purchases by the assignee of participations or sub-participations, or other compensating actions, including funding, with the consent of the Borrower and the Administrative Agent, the applicable pro rata share of Loans previously requested but not funded by the Defaulting Lender, to each of which the applicable assignee and assignor hereby irrevocably consent), to (x) pay and satisfy in full all payment liabilities then owed by such Defaulting Lender to the Administrative Agent or any Lender hereunder (and interest accrued thereon) and (y) acquire (and fund as appropriate) its full pro rata share of all Loans and participations in Letters of Credit and Swing Loans in accordance with its Applicable Percentage. Notwithstanding the foregoing, in the event that any assignment of rights and obligations of any Defaulting Lender hereunder shall become effective under applicable law without compliance with the provisions of this paragraph, then the assignee of such interest shall be deemed to be a Defaulting Lender for all purposes of this Agreement until such compliance occurs.
Appears in 1 contract
Samples: Credit Agreement (American Medical Systems Holdings Inc)
Assignments by Lenders. (i) Any Lender may assign all, or if less than all, a fixed portion, any portion of its Loans, LC Participations, Swing Loan Participations and/or Revolving Commitments and its rights and obligations hereunder to one or more Eligible Assignees, each of which shall become a party to this Agreement as a Lender by execution of an Assignment Agreement; provided, however, that:
(A) except in the case of (x) of an assignment of the entire remaining amount of the assigning Lender’s Loans and/or Revolving Commitments or (y) an assignment to another Lender, an Affiliate of such Lender or an Approved Fund with respect to such of any Lender, the aggregate amount of the Revolving Commitment so assigned (which for this purpose includes the Loans outstanding thereunder) shall not be less than $2,500,000 (unless otherwise mutually agreed upon by the Borrower and the Administrative Agent)5,000,000;
(B) in the case of any assignment to an Eligible Assignee at the effective time of any such assignment assignment, as determined by the Administrative Agent in accordance with subsection (iv) below, the Lender Register shall be deemed modified to reflect the Revolving Commitments of such new Lender and of the existing Lenders;
(C) upon surrender of the old Notes, if any, upon request of the new Lender, new Notes will be issued, at the Borrower’s expense, to such new Lender and to the assigning Lender, to the extent needed to reflect the revised Revolving Commitments;; and
(D) unless waived by the Administrative Agent, except in the case of an assignment to another Lender, an Affiliate of such Lender or an Approved Fund with respect to such Lender, or any Lenders in connection with the initial syndication of the Credit Facilities on or after the Closing Date, the Administrative Agent shall receive at the time of each such assignment, from the assigning or assignee Lender, the payment of a non-refundable assignment fee of $3,500; and
3,500 (E) any such assignment shall require the prior written consent (such consent (except with respect to treating multiple contemporaneous assignments to competitors or from Approved Funds of the Borrower) not to be unreasonably withheld or delayed) of:
(1) the Borrower; provided that no consent of the Borrower shall be required a single Lender as one assignment for an assignment (x) by a Lender to any Lender or a U.S. based-Affiliate of any Lender, (y) by a Lender to an Approved Fund and (z) during a Specified Event of Default (unless such assignment is to a Disqualified Lender). Notwithstanding anything in this Section 11.06 to the contrary, if the Borrower has not given the Administrative Agent written notice of its objection to an assignment of Loans within fifteen (15) Business Days after written notice purposes of such assignment, the Borrower shall be deemed to have consented to such assignment;
(2) the Administrative Agent; provided that no consent of the Administrative Agent shall be required for an assignment of a Loan to a Lender, an Affiliate of a Lender or an Approved Fund; and
(3) each LC Issuer and Swing Line Lender; provided that no consent of an LC Issuer or Swing Line Lender shall be required for an assignment of a Loan to a Lender, an Affiliate of a Lender or an Approved Fundrequirement).
(ii) To the extent of any assignment pursuant to this subsection subpart (c), the assigning Lender shall be relieved of its obligations hereunder with respect to its assigned Revolving Commitments.
(iii) At the time of each assignment pursuant to this subsection subpart (c) to a Person that is not already a Lender hereunder, the respective assignee Lender shall provide to the Borrower and the Administrative Agent the applicable Internal Revenue Service Forms (and any necessary additional documentation) described in Section 3.02(e3.03(b).
(iv) With respect to any Lender, the transfer of any Revolving Commitment of such Lender and the rights to the principal of, and interest on, any Loan made pursuant to such Commitment (whether or not evidenced by a Note) shall not be effective until such transfer is recorded on the Lender Register maintained by the Administrative Agent (on behalf of and acting solely for this purpose as a non-fiduciary agent of the applicable Borrower) with respect to ownership of such Revolving Commitment and Loans, including the name Loans and address of the Lenders and the principal amount of the Loans (and stated interest thereon). Prior prior to such recordation, recordation all amounts owing to the transferor with respect to such Revolving Commitment and Loans shall remain owing to the transferor. The registration of assignment or transfer of all or part of any Revolving Commitments and Loans shall be recorded by the Administrative Agent on the Lender Register only upon the acceptance by the Administrative Agent of a properly executed and delivered Assignment Agreement pursuant to this subsection subpart (c). The entries in the Lender Register shall be conclusive absent manifest error, and the Borrower, the Administrative Agent and each Lender shall treat each person whose name is recorded in the Lender Register as a Lender hereunder for all purposes of this Agreement notwithstanding any notice to the contrary. The Lender Register shall be available for the inspection by the Borrower and any Lender (solely with respect to its own interest in any Loan or Commitment) at any reasonable time and from time to time upon reasonable prior notice.
(v) [Reserved].
(vi) Nothing in this Section 11.06(c) shall prevent or prohibit (A) any Lender that is a bank, trust company or other financial institution from pledging its Notes or Loans to a Federal Reserve Bank or to any Person that extends credit to such Lender in support of borrowings made by such Lender from such Federal Reserve Bank or such other PersonBank, or (B) any Lender that is a trust, limited liability company, partnership partnership, fund or other investment company from pledging its Notes or Loans to a trustee or agent for the benefit of holders of certificates or debt securities issued by it. No such pledge, or any assignment pursuant to or in lieu of an enforcement of such a pledge, shall relieve the transferor Lender from its obligations hereunder. In connection with any assignment of rights and obligations of any Defaulting Lender hereunder, no such assignment shall be effective unless and until, in addition to the other conditions thereto set forth herein, the parties to the assignment shall make such additional payments to the Administrative Agent in an aggregate amount sufficient, upon distribution thereof as appropriate (which may be outright payment, purchases by the assignee of participations or sub-participations, or other compensating actions, including funding, with the consent of the Borrower and the Administrative Agent, the applicable pro rata share of Loans previously requested but not funded by the Defaulting Lender, to each of which the applicable assignee and assignor hereby irrevocably consent), to (x) pay and satisfy in full all payment liabilities then owed by such Defaulting Lender to the Administrative Agent or any Lender hereunder (and interest accrued thereon) and (y) acquire (and fund as appropriate) its full pro rata share of all Loans and participations in Letters of Credit and Swing Loans in accordance with its Applicable Percentage. Notwithstanding the foregoing, in the event that any assignment of rights and obligations of any Defaulting Lender hereunder shall become effective under applicable law without compliance with the provisions of this paragraph, then the assignee of such interest shall be deemed to be a Defaulting Lender for all purposes of this Agreement until such compliance occurs.
Appears in 1 contract
Assignments by Lenders. (i) Any Lender may assign all, or if less than all, a fixed portion, of its Loans, LC Participations, Swing Loan Participations and/or Commitments and its rights and obligations hereunder to one or more Eligible Assignees, each of which shall become a party to this Agreement as a Lender by execution of an Assignment Agreement; provided, however, that:
(A) except in the case of (x) an assignment of the entire remaining amount of the assigning Lender’s Loans and/or Commitments or (y) an assignment to another Lender, an Affiliate of such Lender or an Approved Fund with respect to such Lender, the aggregate amount of the Commitment so assigned (which for this purpose includes the Loans outstanding thereunder) shall not be less than $2,500,000 1,000,000, in the case of Term Loans or $2,000,000, in the case of Revolving Loans and Revolving Commitments (unless otherwise mutually agreed upon by the Parent Borrower and the Administrative Agent);
(B) in the case of any assignment to an Eligible Assignee at the time of any such assignment the Lender Register shall be deemed modified to reflect the Commitments of such new Lender and of the existing Lenders;
(C) upon surrender of the old Notes, if any, upon request of the new Lender, new Notes will be issued, at the Parent Borrower’s expense, to such new Lender and to the assigning Lender, to the extent needed to reflect the revised Commitments;
(D) unless waived by the Administrative Agent, except in the case of an assignment to another Lender, an Affiliate of such Lender or an Approved Fund with respect to such Lender, or any Lenders in connection with the initial syndication of the Credit Facilities on or after the Closing Date, the Administrative Agent shall receive at the time of each such assignment, from the assigning or assignee Lender, the payment of a non-refundable assignment fee of $3,500; and;
(E) any such assignment shall require the prior written consent (such consent (except with respect to assignments to competitors of the Borrower) not to be unreasonably withheld or delayed) of:
(1) the Borrower; provided that no consent of the Parent Borrower shall be required for an assignment (x) by a Lender to any Lender or a U.S. based-Affiliate of any Lender, (y) by a Lender to an Approved Fund and (z) during a Specified Event of Default (unless such assignment is to a Disqualified Lender). Notwithstanding anything in this Section 11.06 to the contrary, if the Borrower has not given the Administrative Agent written notice of its objection to an assignment of Loans within fifteen (15) Business Days after written notice of such assignment, the Borrower shall will be deemed to have consented given the consent required in the definition of “Eligible Assignee” to such assignment;
Assignment if Parent Borrower has not responded in writing within ten (210) the Administrative Agent; provided that no consent of the Administrative Agent shall be required for an assignment Business Days of a Loan to a Lender, an Affiliate of a Lender or an Approved Fund; and
(3) each LC Issuer and Swing Line Lender; provided that no consent of an LC Issuer or Swing Line Lender shall be required request for an assignment of a Loan to a Lender, an Affiliate of a Lender or an Approved Fundconsent.
(ii) To the extent of any assignment pursuant to this subsection subpart (c), the assigning Lender shall be relieved of its obligations hereunder with respect to its assigned Commitments.
(iii) At the time of each assignment pursuant to this subsection subpart (c) to a Person that is not already a Lender hereunder, the respective assignee Lender shall provide to the Parent Borrower and the Administrative Agent the applicable Internal Revenue Service Forms (and any necessary additional documentation) described in Section 3.02(e3.02(g).
(iv) With respect to any Lender, the transfer of any Commitment of such Lender and the rights to the principal of, and interest on, any Loan made pursuant to such Commitment shall not be effective until such transfer is recorded on the Lender Register maintained by the Administrative Agent (on behalf of and acting solely for this purpose as a non-fiduciary agent of the applicable BorrowerBorrowers) with respect to ownership of such Commitment and Loans, including the name and address of the Lenders and the principal amount of the Loans (and stated interest thereon). Prior to such recordation, all amounts owing to the transferor with respect to such Commitment and Loans shall remain owing to the transferor. The registration of assignment or transfer of all or part of any Commitments and Loans shall be recorded by the Administrative Agent on the Lender Register only upon the acceptance by the Administrative Agent of a properly executed and delivered Assignment Agreement pursuant to this subsection subpart (c). The entries in the Lender Register shall be conclusive absent manifest error, and the each Borrower, the Administrative Agent and each Lender shall treat each person whose name is recorded in the Lender Register as a Lender hereunder for all purposes of this Agreement notwithstanding any notice to the contrary. The Lender Register shall be available for the inspection by the Parent Borrower and any Lender (solely with respect to its own interest in any Loan or Commitment) at any reasonable time and from time to time upon reasonable prior notice.
(v) [Reserved].
(vi) Nothing in this Section 11.06(c10.06(c) shall prevent or prohibit (A) any Lender that is a bank, trust company or other financial institution from pledging its Notes or Loans to a Federal Reserve Bank or to any Person that extends credit to such Lender in support of borrowings made by such Lender from such Federal Reserve Bank or such other Person, or (B) any Lender that is a trust, limited liability company, partnership or other investment company from pledging its Notes or Loans to a trustee or agent for the benefit of holders of certificates or debt securities issued by it. No such pledge, or any assignment pursuant to or in lieu of an enforcement of such a pledge, shall relieve the transferor Lender from its obligations hereunder. In connection with any assignment of rights and obligations of any Defaulting Lender hereunder, no such assignment shall be effective unless and until, in addition to the other conditions thereto set forth herein, the parties to the assignment shall make such additional payments to the Administrative Agent in an aggregate amount sufficient, upon distribution thereof as appropriate (which may be outright payment, purchases by the assignee of participations or sub-participationssubparticipations, or other compensating actions, including funding, with the consent of the Parent Borrower and the Administrative Agent, the applicable pro rata share of Loans previously requested but not funded by the Defaulting Lender, to each of which the applicable assignee and assignor hereby irrevocably consent), to (x) pay and satisfy in full all payment liabilities then owed by such Defaulting Lender to the Administrative Agent or any Lender hereunder (and interest accrued thereon) and (y) acquire (and fund as appropriate) its full pro rata share of all Loans and participations in Letters of Credit and Swing Loans in accordance with its Applicable Percentage. Notwithstanding the foregoing, in the event that any assignment of rights and obligations of any Defaulting Lender hereunder shall become effective under applicable law without compliance with the provisions of this paragraph, then the assignee of such interest shall be deemed to be a Defaulting Lender for all purposes of this Agreement until such compliance occurs.
Appears in 1 contract
Samples: Credit Agreement (PGT, Inc.)
Assignments by Lenders. (i) Any Lender may assign all, or if less than all, a fixed portion, of its Loans, LC Participations, Swing Loan Participations and/or Commitments Loans and its rights and obligations hereunder to one or more Eligible AssigneesAssignees (so long as after giving effect to each such assignment, except in the case of an assignment of the entire remaining amount of the assigning Lender’s portion of the Term Loans, such Eligible Assignee’s portion of the Term Loans outstanding shall not be less than $1,000,000), each of which shall become a party to this Agreement as a Lender by execution of an Assignment Agreement; provided, however, provided that:
(Ai) except in the case of (x) of an assignment of the entire remaining amount of the assigning Lender’s portion of the Term Loans and/or Commitments or (y) an assignment to another Lender, an Affiliate of such Lender or an Approved Fund with respect to such Lender, the aggregate amount of the Commitment so assigned (which for this purpose includes portion of the Term Loans outstanding thereunder) hereunder owed to such Lender, Affiliate or Approved Fund, shall not be less than $2,500,000 (unless otherwise mutually agreed upon by the Borrower and the Administrative Agent);1,000,000,
(Bii) in the case of any assignment to an Eligible Assignee at the time of any such assignment the Lender Register shall be deemed modified to reflect the Commitments of such new Lender and revised allocation of the existing Lenders;Term Loans,
(Ciii) upon surrender of the old Notes, if any, upon request of the new Lender, new Notes will be issued, at the Borrower’s expense, to such new Lender and to the assigning Lender, such new Notes to be in conformity with the requirements of Section 2.4(d) (with appropriate modifications) to the extent needed to reflect the revised Commitments;allocation of the Term Loans,
(Div) unless waived by the Administrative Agent, except in the case of an assignment to another Lender, an Affiliate of such Lender or an Approved Fund with respect to such Lender, or any Lenders in connection with the initial syndication of the Credit Facilities on or after the Closing Date, the Administrative Agent shall receive at the time of each such assignment, from the assigning or assignee Lender, the payment of a non-refundable assignment fee of $3,500; , and
(E) any , provided further, that such transfer or assignment shall require will not be effective until the prior written consent (such consent (except with Assignment Agreement in respect to assignments to competitors of the Borrower) not to be unreasonably withheld or delayed) of:
(1) the Borrower; provided that no consent of the Borrower shall be required for an assignment (x) thereof is recorded by a Lender to any Lender or a U.S. based-Affiliate of any Lender, (y) by a Lender to an Approved Fund and (z) during a Specified Event of Default (unless such assignment is to a Disqualified Lender). Notwithstanding anything in this Section 11.06 to the contrary, if the Borrower has not given the Administrative Agent written notice of its objection to an assignment of Loans within fifteen (15) Business Days after written notice of such assignment, on the Borrower shall be deemed to have consented to such assignment;
(2) the Administrative Agent; Lender Register maintained by it as provided that no consent of the Administrative Agent shall be required for an assignment of a Loan to a Lender, an Affiliate of a Lender or an Approved Fund; and
(3) each LC Issuer and Swing Line Lender; provided that no consent of an LC Issuer or Swing Line Lender shall be required for an assignment of a Loan to a Lender, an Affiliate of a Lender or an Approved Fund.
(ii) herein. To the extent of any assignment pursuant to this subsection (c), Section 11.4(c) the assigning Lender shall be relieved of its obligations hereunder with respect to its assigned Commitments.
(iii) portion of the Term Loans. At the time of each assignment pursuant to this subsection (cSection 11.4(c) to a Person person that is not already a Lender hereunderhereunder and that is not a United States person (as such term is defined in Section 7701(a)(30) of the Code) for Federal income tax purposes, the respective assignee Lender shall provide to the Borrower and the Administrative Agent the applicable appropriate Internal Revenue Service Forms (and any necessary additional documentationand, if applicable an Exemption Certificate) described in Section 3.02(e4.4(b).
(iv. To the extent that an assignment of all or any portion of a Lender’s outstanding Obligations pursuant to this Section 11.4(c) With respect to any Lenderwould, at the transfer of any Commitment time of such assignment, result in increased costs under Section 2.6 from those being charged by the respective assigning Lender and the rights to the principal of, and interest on, any Loan made pursuant prior to such Commitment assignment, then the Borrower shall not be effective until obligated to pay such transfer is recorded on increased costs (although the Lender Register maintained by the Administrative Agent (on behalf of and acting solely for this purpose as a non-fiduciary agent Borrower shall be obligated to pay any other increased costs of the applicable Borrower) with respect to ownership of such Commitment and Loans, including type described above resulting from changes after the name and address date of the Lenders and the principal amount of the Loans (and stated interest thereonrespective assignment). Prior to such recordation, all amounts owing to the transferor with respect to such Commitment and Loans shall remain owing to the transferor. The registration of assignment or transfer of all or part of any Commitments and Loans shall be recorded by the Administrative Agent on the Lender Register only upon the acceptance by the Administrative Agent of a properly executed and delivered Assignment Agreement pursuant to this subsection (c). The entries in the Lender Register shall be conclusive absent manifest error, and the Borrower, the Administrative Agent and each Lender shall treat each person whose name is recorded in the Lender Register as a Lender hereunder for all purposes of this Agreement notwithstanding any notice to the contrary. The Lender Register shall be available for the inspection by the Borrower and any Lender (solely with respect to its own interest in any Loan or Commitment) at any reasonable time and from time to time upon reasonable prior notice.
(v) [Reserved].
(vi) Nothing in this Section 11.06(c11.4(c) shall prevent or prohibit (Ai) any Lender that is a bank, trust company or other financial institution from pledging its Notes or its portion of the Term Loans to a Federal Reserve Bank or to any Person that extends credit to such Lender in support of borrowings made by such Lender from such Federal Reserve Bank or such other PersonBank, or (Bii) any Lender that is a trust, limited liability company, partnership or other investment company from pledging its Notes or its portion of the Term Loans to a trustee or agent for the benefit of holders of certificates or debt securities issued by it. No such pledge, or any assignment pursuant to or in lieu of an enforcement of such a pledge, shall relieve the transferor Lender from its obligations hereunder. In connection with any assignment of rights and obligations of any Defaulting Lender hereunder, no such assignment shall be effective unless and until, in addition to the other conditions thereto set forth herein, the parties to the assignment shall make such additional payments to the Administrative Agent in an aggregate amount sufficient, upon distribution thereof as appropriate (which may be outright payment, purchases by the assignee of participations or sub-participations, or other compensating actions, including funding, with the consent of the Borrower and the Administrative Agent, the applicable pro rata share of Loans previously requested but not funded by the Defaulting Lender, to each of which the applicable assignee and assignor hereby irrevocably consent), to (x) pay and satisfy in full all payment liabilities then owed by such Defaulting Lender to the Administrative Agent or any Lender hereunder (and interest accrued thereon) and (y) acquire (and fund as appropriate) its full pro rata share of all Loans and participations in Letters of Credit and Swing Loans in accordance with its Applicable Percentage. Notwithstanding the foregoing, in the event that any assignment of rights and obligations of any Defaulting Lender hereunder shall become effective under applicable law without compliance with the provisions of this paragraph, then the assignee of such interest shall be deemed to be a Defaulting Lender for all purposes of this Agreement until such compliance occurs.
Appears in 1 contract
Assignments by Lenders. (i) Any Lender may assign all, or if less than all, a fixed portion, of its Loans, LC Participations, Swing Loan Participations and/or Commitments and its rights and obligations hereunder to one or more Eligible Assignees, each of which shall become a party to this Agreement as a Lender by execution of an Assignment Agreement; provided, however, that:
(A) except in the case of (x) an assignment of the entire remaining amount of the assigning Lender’s Loans and/or Commitments or (y) an assignment to another Lender, an Affiliate of such Lender or an Approved Fund with respect to such Lender, the aggregate amount of the Commitment so assigned (which for this purpose includes the Loans outstanding thereunder) shall not be less than than, in the case of any Revolving Commitment, $2,500,000 (unless otherwise mutually agreed upon by 5,000,000, and in the Borrower and the Administrative Agent)case of any Term Commitment, $1,000,000; provided that Approved Funds shall be aggregated for purposes of such minimum assignment amount;
(B) in the case of any assignment to an Eligible Assignee at the time of any such assignment the Lender Register shall be deemed modified to reflect the Commitments of such new Lender and of the existing Lenders;
(C) upon surrender of the old Notes, if any, upon request of the new Lender, new Notes will be issued, at the Borrower’s Borrowers’ expense, to such new Lender and to the assigning Lender, to the extent needed to reflect the revised Commitments;; and
(D) unless waived by the Administrative Agent, except in the case of an assignment to another Lender, an Affiliate of such Lender or an Approved Fund with respect to such Lender, or any Lenders in connection with the initial syndication of the Credit Facilities on or after the Closing Date, the Administrative Agent shall receive at the time of each such assignment, from the assigning or assignee Lender, the payment of a non-refundable assignment fee of $3,500; and
(E) any such assignment shall require the prior written consent (such consent (except with respect to assignments to competitors of the Borrower) not to be unreasonably withheld or delayed) of:
(1) the Borrower; , provided that no consent of the Borrower only one such fee shall be required for an assignment (x) by a Lender to any Lender or a U.S. based-Affiliate of any Lender, (y) by a Lender to an Approved Fund and (z) during a Specified Event of Default (unless such assignment is to a Disqualified Lender). Notwithstanding anything payable in this Section 11.06 to the contrary, if the Borrower has not given the Administrative Agent written notice of its objection to an assignment of Loans within fifteen (15) Business Days after written notice of such assignment, the Borrower shall be deemed to have consented to such assignment;
(2) the Administrative Agent; provided that no consent of the Administrative Agent shall be required for an assignment event of a Loan contemporaneous assignment to a Lender, an Affiliate of a Lender or an by two or more Approved Fund; and
(3) each LC Issuer and Swing Line Lender; provided that no consent of an LC Issuer or Swing Line Lender shall be required for an assignment of a Loan to a Lender, an Affiliate of a Lender or an Approved FundFunds.
(ii) To the extent of any assignment pursuant to this subsection subpart (c), the assigning Lender shall be relieved of its obligations hereunder with respect to its assigned Commitments.
(iii) At the time of each assignment pursuant to this subsection subpart (c) ), to a Person that is not already a Lender hereunderhereunder and that is not a United States Person (as such term is defined in Section 7701(a)(30) of the Code) for Federal income tax purposes, the respective assignee Lender shall provide to the Borrower Representative and the Administrative Agent the applicable Internal Revenue Service Forms (and any necessary additional documentation) described in Section 3.02(e3.03(b).
(iv) With respect to any Lender, the transfer of any Commitment of such Lender and the rights to the principal of, and interest on, any Loan made pursuant to such Commitment shall not be effective until such transfer is recorded on the Lender Register maintained by the Administrative Agent (on behalf of and acting solely for this purpose as a non-fiduciary agent of the applicable Borrower) with respect to ownership of such Commitment and Loans, including the name Loans and address of the Lenders and the principal amount of the Loans (and stated interest thereon). Prior prior to such recordation, recordation all amounts owing to the transferor with respect to such Commitment and Loans shall remain owing to the transferor. The registration of assignment or transfer of all or part of any Commitments and Loans shall be recorded by the Administrative Agent on the Lender Register only upon the acceptance by the Administrative Agent of a properly executed and delivered Assignment Agreement pursuant to this subsection subpart (c). The entries in the Lender Register shall be conclusive absent manifest error, and the Borrower, the Administrative Agent and each Lender shall treat each person whose name is recorded in the Lender Register as a Lender hereunder for all purposes of this Agreement notwithstanding any notice to the contrary. The Lender Register shall be available for the inspection by the Borrower and any Lender (solely with respect to its own interest in any Loan or Commitment) at any reasonable time and from time to time upon reasonable prior notice.
(v) [Reserved].
(vi) Nothing in this Section 11.06(c) shall prevent or prohibit (A) any Lender that is an Approved Fund, a bank, trust company or other financial institution from pledging its Notes or Loans to a Federal Reserve Bank or to any Person that extends credit to such Lender in support of borrowings made by such Lender from such Federal Reserve Bank or such other PersonBank, or (B) any Lender that is an Approved Fund, a trust, limited liability company, partnership or other investment company from pledging its Notes or Loans to a trustee or agent for the benefit of holders of certificates or debt securities issued by it, including any such pledge to any trustee or agent for, or any other representatives of, such holder. No such pledge, or any assignment pursuant to or in lieu of an enforcement of such a pledge, shall relieve the transferor Lender from its obligations hereunder. In connection with any assignment of rights and obligations of any Defaulting Lender hereunder, no such assignment shall be effective unless and until, in addition to the other conditions thereto set forth herein, the parties to the assignment shall make such additional payments to the Administrative Agent in an aggregate amount sufficient, upon distribution thereof as appropriate (which may be outright payment, purchases by the assignee of participations or sub-participations, or other compensating actions, including funding, with the consent of the Borrower and the Administrative Agent, the applicable pro rata share of Loans previously requested but not funded by the Defaulting Lender, to each of which the applicable assignee and assignor hereby irrevocably consent), to (x) pay and satisfy in full all payment liabilities then owed by such Defaulting Lender to the Administrative Agent or any Lender hereunder (and interest accrued thereon) and (y) acquire (and fund as appropriate) its full pro rata share of all Loans and participations in Letters of Credit and Swing Loans in accordance with its Applicable Percentage. Notwithstanding the foregoing, in the event that any assignment of rights and obligations of any Defaulting Lender hereunder shall become effective under applicable law without compliance with the provisions of this paragraph, then the assignee of such interest shall be deemed to be a Defaulting Lender for all purposes of this Agreement until such compliance occurs.
Appears in 1 contract
Samples: Amendment and Restatement Agreement (Gibraltar Industries, Inc.)
Assignments by Lenders. (i) Any Subject to the conditions set forth in paragraph (b)(ii) below, any Lender may assign all, to one or if less than all, more Persons all or a fixed portion, portion of its Loans, LC Participations, Swing Loan Participations and/or Commitments and its rights and obligations hereunder to one or more Eligible Assignees, each of which shall become a party to under this Agreement as (including all or a Lender by execution portion of an Assignment Agreement; provided, however, that:
(A) except in the case of (x) an assignment of the entire remaining amount of the assigning Lender’s Loans and/or Commitments or (y) an assignment to another Lender, an Affiliate of such Lender or an Approved Fund with respect to such Lender, the aggregate amount of the its Commitment so assigned (which for this purpose includes and the Loans outstanding thereunder) shall not be less than $2,500,000 (unless otherwise mutually agreed upon by the Borrower and the Administrative Agent);
(B) in the case of any assignment to an Eligible Assignee at the time of any such assignment the Lender Register shall be deemed modified owing to reflect the Commitments of such new Lender and of the existing Lenders;
(Cit) upon surrender of the old Notes, if any, upon request of the new Lender, new Notes will be issued, at the Borrower’s expense, to such new Lender and to the assigning Lender, to the extent needed to reflect the revised Commitments;
(D) unless waived by the Administrative Agent, except in the case of an assignment to another Lender, an Affiliate of such Lender or an Approved Fund with respect to such Lender, or any Lenders in connection with the initial syndication of the Credit Facilities on or after the Closing Date, the Administrative Agent shall receive at the time of each such assignment, from the assigning or assignee Lender, the payment of a non-refundable assignment fee of $3,500; and
(E) any such assignment shall require the prior written consent (such consent (except with respect to assignments to competitors of the Borrower) not to be unreasonably withheld or delayedwithheld) of:
(1A) the Borrower, provided that the Borrower shall be deemed to have consented to an assignment unless, within ten Business Days after receipt of notice thereof by an officer of the Borrower that has been designated in writing by the Borrower to the Administrative Agent for this purpose (or, failing any such designation, by the treasurer or chief financial officer of the Borrower) and confirmation of such receipt by the Borrower in writing or by telephone, fax or other electronic communication to the Administrative Agent, it shall have objected thereto by written notice to the Administrative Agent or shall have indicated in writing to the Administrative Agent and the relevant assignor that it needs additional time or information to evaluate the request; provided further that no consent of the Borrower shall be required for an assignment (x) by to a Lender to any Lender or a U.S. based-an Affiliate of any Lender, (y) by a Lender to (in each case, other than a Defaulting Lender) or, if an Approved Fund and (z) during a Specified Event of Default under clause (unless such assignment is a) or (b) of Article VII (with respect to a Disqualified Lender). Notwithstanding anything in this Section 11.06 principal, interest or fees payable hereunder only) or an Event of Default with respect to the contraryBorrower under clause (h) or (i) of Article VII has occurred and is continuing, if the Borrower has not given the Administrative Agent written notice of its objection to an assignment of Loans within fifteen (15) Business Days after written notice of such assignment, the Borrower shall be deemed to have consented to such assignmentany other assignee;
(2B) the Administrative Agent; provided that no consent of the Administrative Agent shall be required for an assignment by a Lender to any Affiliate of such Lender or to another Lender (in each case, other than a Loan Defaulting Lender);
(C) each Issuing Bank; and
(D) the Swingline Lender.
(ii) Assignments shall be subject to the following additional conditions:
(A) except in the case of an assignment to a Lender, Lender or an Affiliate of a Lender or an Approved Fund; and
(3) each LC Issuer and Swing Line Lender; provided that no consent of an LC Issuer or Swing Line Lender shall be required for an assignment of a Loan to a the entire remaining amount of the assigning Lender’s Commitment or Loans, an Affiliate the amount of a Lender the Commitment or an Approved Fund.
(ii) To the extent Loans of any assignment pursuant to this subsection (c), the assigning Lender shall be relieved subject to each such assignment (determined as of its obligations hereunder the date the Assignment and Assumption with respect to its assigned Commitments.
(iiisuch assignment is delivered to the Administrative Agent) At the time shall not be less than $5,000,000 unless each of each assignment pursuant to this subsection (c) to a Person that is not already a Lender hereunder, the respective assignee Lender shall provide to the Borrower and the Administrative Agent otherwise consent, provided that no such consent of the applicable Internal Revenue Service Forms Borrower shall be required if an Event of Default with respect to the Borrower under clause (h) or (i) of Article VII has occurred and any necessary additional documentationis continuing;
(B) described 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, except that this clause (B) shall not apply to the Swingline Lender’s rights and obligations in Section 3.02(erespect of Swingline Loans made by it;
(C) the parties to each assignment shall execute and deliver to the Administrative Agent an Assignment and Assumption, together with a processing and recordation fee of $3,500 from the assignor or assignee; and
(D) the assignee, if it shall not be a Lender immediately prior to such assignment, shall deliver to the Administrative Agent an Administrative Questionnaire.
(iii) Subject to acceptance and recording thereof pursuant to paragraph (b)(v) of this Section, from and after the effective date specified in each Assignment and Assumption the assignee thereunder shall be a party hereto and, to the extent of the interest assigned by such Assignment and Assumption, have the rights and obligations of a Lender under this Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment and Assumption, be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption covering all of the assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto but shall continue to be entitled to the benefits of Sections 2.12, 2.13, 2.14 and 9.03). Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this paragraph (b) shall be treated for purposes of this Agreement as a sale by such Lender of a participation in such rights and obligations in accordance with paragraph (c) of this Section.
(iv) With respect to any LenderThe Administrative Agent, the transfer of any Commitment of such Lender and the rights to the principal of, and interest on, any Loan made pursuant to such Commitment shall not be effective until such transfer is recorded on the Lender Register maintained by the Administrative Agent (on behalf of and acting solely for this purpose as a non-fiduciary agent of the applicable Borrower) with respect Borrower (and such agency being solely for tax purposes), shall maintain at one of its offices a copy of each Assignment and Assumption delivered to ownership of such Commitment it and Loans, including a register for the name and address recordation of the Lenders names and addresses of the Lenders, and the Commitment of, and principal amount of the Loans (and stated interest thereon). Prior to such recordationL/C Borrowings owing to, all amounts owing each Lender pursuant to the transferor with respect terms hereof from time to such Commitment and Loans shall remain owing to time (the transferor. The registration of assignment or transfer of all or part of any Commitments and Loans shall be recorded by the Administrative Agent on the Lender Register only upon the acceptance by the Administrative Agent of a properly executed and delivered Assignment Agreement pursuant to this subsection (c“Register”). The entries in the Lender Register shall be conclusive absent manifest errorconclusive, and the Borrower, the Administrative Agent Agent, the Issuing Banks and each Lender the Lenders shall treat each person Person whose name is recorded in the Lender Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement Agreement, notwithstanding any notice to the contrary. The Lender Register shall be available for the inspection by the Borrower Borrower, the Issuing Banks and any Lender (solely with respect to its own interest in any Loan or Commitment) interests only), at any reasonable time and from time to time upon reasonable prior notice.
(v) [Reserved].
Upon its receipt of a duly completed Assignment and Assumption executed by an assigning Lender and an assignee, the assignee’s completed Administrative Questionnaire (viunless the assignee shall already be a Lender hereunder), the processing and recordation fee referred to in paragraph (b)(ii)(C) Nothing in of this Section 11.06(c) shall prevent or prohibit (A) and any Lender that is a bank, trust company or other financial institution from pledging its Notes or Loans to a Federal Reserve Bank or to any Person that extends credit written consent to such assignment required by this paragraph (b), the Administrative Agent shall accept such Assignment and Assumption and record the information contained therein in the Register; provided that if either the assigning Lender in support of borrowings or the assignee shall have failed to make any payment required to be made by it pursuant to Section 2.15(d), 2.17(c), 2.18(d) or 9.03(c), the Administrative Agent shall have no obligation to accept such Lender from Assignment and Assumption and record the information therein in the Register unless and until such Federal Reserve Bank or such other Personpayment shall have been made in full, or (B) any Lender that is a trust, limited liability company, partnership or other investment company from pledging its Notes or Loans to a trustee or agent for the benefit of holders of certificates or debt securities issued by ittogether with all accrued interest thereon. No such pledge, or any assignment pursuant to or in lieu of an enforcement of such a pledge, shall relieve the transferor Lender from its obligations hereunder. In connection with any assignment of rights and obligations of any Defaulting Lender hereunder, no such assignment shall be effective unless and until, in addition to the other conditions thereto set forth herein, the parties to the assignment shall make such additional payments to the Administrative Agent in an aggregate amount sufficient, upon distribution thereof as appropriate (which may be outright payment, purchases by the assignee of participations or sub-participations, or other compensating actions, including funding, with the consent of the Borrower and the Administrative Agent, the applicable pro rata share of Loans previously requested but not funded by the Defaulting Lender, to each of which the applicable assignee and assignor hereby irrevocably consent), to (x) pay and satisfy in full all payment liabilities then owed by such Defaulting Lender to the Administrative Agent or any Lender hereunder (and interest accrued thereon) and (y) acquire (and fund as appropriate) its full pro rata share of all Loans and participations in Letters of Credit and Swing Loans in accordance with its Applicable Percentage. Notwithstanding the foregoing, in the event that any assignment of rights and obligations of any Defaulting Lender hereunder shall become effective under applicable law without compliance with the provisions of this paragraph, then the assignee of such interest shall be deemed to be a Defaulting Lender for all purposes of this Agreement until such compliance occursunless it has been recorded in the Register as provided in this paragraph (b).
Appears in 1 contract
Samples: Credit Agreement (Bard C R Inc /Nj/)
Assignments by Lenders. (i) Any Lender may assign all, or if less than all, a fixed portion, of its Loans, LC Participations, Swing Loan Participations Loans and/or Commitments Commitment and its rights and obligations hereunder to one or more Eligible AssigneesAssignees (so long as after giving effect to each such assignment, such Eligible Assignee's Commitment shall not be less than $5,000,000), each of which shall become a party to this Agreement as a Lender by execution of an Assignment Agreement; provided, however, provided that:
(Ai) except in the case of (x) of an assignment of the entire remaining amount of the assigning Lender’s 's Loans and/or Commitments Commitment or (y) an assignment to another Lender, an Affiliate of such Lender or an Approved Fund with respect to such Lender, the aggregate amount of the Commitment so assigned (which for this purpose includes the Loans outstanding thereunder) ), shall not be less than $2,500,000 (unless otherwise mutually agreed upon by the Borrower and the Administrative Agent);5,000,000,
(Bii) in the case of any assignment to an Eligible Assignee at the time of any such assignment the Lender Register shall be deemed modified to reflect the Commitments of such new Lender and of the existing Lenders;,
(Ciii) upon surrender of the old Notes, if any, upon request of the new Lender, new Notes will be issued, at the Borrower’s Borrowers' expense, to such new Lender and to the assigning Lender, such new Notes to be in conformity with the requirements of Section 2.4(d) (with appropriate modifications) to the extent needed to reflect the revised Commitments;,
(Div) unless waived by the Administrative Agent, except in the case of an assignment to another Lender, an Affiliate of such Lender or an Approved Fund with respect to such Lender, or any Lenders in connection with the initial syndication of the Credit Facilities on or after the Closing Date, the Administrative Agent shall receive at the time of each such assignment, from the assigning or assignee Lender, the payment of a non-refundable assignment fee of $3,500; , and
(E) any , provided further, that such transfer or assignment shall require will not be effective until the prior written consent (such consent (except with Assignment Agreement in respect to assignments to competitors of the Borrower) not to be unreasonably withheld or delayed) of:
(1) the Borrower; provided that no consent of the Borrower shall be required for an assignment (x) thereof is recorded by a Lender to any Lender or a U.S. based-Affiliate of any Lender, (y) by a Lender to an Approved Fund and (z) during a Specified Event of Default (unless such assignment is to a Disqualified Lender). Notwithstanding anything in this Section 11.06 to the contrary, if the Borrower has not given the Administrative Agent written notice of its objection to an assignment of Loans within fifteen (15) Business Days after written notice of such assignment, on the Borrower shall be deemed to have consented to such assignment;
(2) the Administrative Agent; Lender Register maintained by it as provided that no consent of the Administrative Agent shall be required for an assignment of a Loan to a Lender, an Affiliate of a Lender or an Approved Fund; and
(3) each LC Issuer and Swing Line Lender; provided that no consent of an LC Issuer or Swing Line Lender shall be required for an assignment of a Loan to a Lender, an Affiliate of a Lender or an Approved Fund.
(ii) herein. To the extent of any assignment pursuant to this subsection (c), Section 12.4(c) the assigning Lender shall be relieved of its obligations hereunder with respect to its assigned Commitments.
(iii) . At the time of each assignment pursuant to this subsection (cSection 12.4(c) to a Person person that is not already a Lender hereunderhereunder and that is not a United States person (as such term is defined in Section 7701(a)(30) of the Code) for Federal income tax purposes, the respective assignee Lender shall provide to the Borrower and the Administrative Agent the applicable appropriate Internal Revenue Service Forms (and any necessary additional documentationand, if applicable an Exemption Certificate) described in Section 3.02(e5.4(b).
(iv. To the extent that an assignment of all or any portion of a Lender's Commitment and related outstanding Obligations pursuant to this Section 12.4(c) With respect to any Lenderwould, at the transfer of any Commitment time of such assignment, result in increased costs under Section 2.6 from those being charged by the respective assigning Lender and the rights to the principal of, and interest on, any Loan made pursuant prior to such Commitment assignment, then the Borrowers shall not be effective until obligated to pay such transfer is recorded on increased costs (although the Lender Register maintained by the Administrative Agent (on behalf of and acting solely for this purpose as a non-fiduciary agent Borrowers shall be obligated to pay any other increased costs of the applicable Borrower) with respect to ownership of such Commitment and Loans, including type described above resulting from changes after the name and address date of the Lenders and the principal amount of the Loans (and stated interest thereonrespective assignment). Prior to such recordation, all amounts owing to the transferor with respect to such Commitment and Loans shall remain owing to the transferor. The registration of assignment or transfer of all or part of any Commitments and Loans shall be recorded by the Administrative Agent on the Lender Register only upon the acceptance by the Administrative Agent of a properly executed and delivered Assignment Agreement pursuant to this subsection (c). The entries in the Lender Register shall be conclusive absent manifest error, and the Borrower, the Administrative Agent and each Lender shall treat each person whose name is recorded in the Lender Register as a Lender hereunder for all purposes of this Agreement notwithstanding any notice to the contrary. The Lender Register shall be available for the inspection by the Borrower and any Lender (solely with respect to its own interest in any Loan or Commitment) at any reasonable time and from time to time upon reasonable prior notice.
(v) [Reserved].
(vi) Nothing in this Section 11.06(c12.4(c) shall prevent or prohibit (Ai) any Lender that is a bank, trust company or other financial institution from pledging its Notes or Loans to a Federal Reserve Bank or to any Person that extends credit to such Lender in support of borrowings made by such Lender from such Federal Reserve Bank or such other PersonBank, or (Bii) any Lender that is a trust, limited liability company, partnership or other investment company from pledging its Notes or Loans to a trustee or agent for the benefit of holders of certificates or debt securities issued by it. No such pledge, or any assignment pursuant to or in lieu of an enforcement of such a pledge, shall relieve the transferor Lender from its obligations hereunder. In connection with any assignment of rights and obligations of any Defaulting Lender hereunder, no such assignment shall be effective unless and until, in addition to the other conditions thereto set forth herein, the parties to the assignment shall make such additional payments to the Administrative Agent in an aggregate amount sufficient, upon distribution thereof as appropriate (which may be outright payment, purchases by the assignee of participations or sub-participations, or other compensating actions, including funding, with the consent of the Borrower and the Administrative Agent, the applicable pro rata share of Loans previously requested but not funded by the Defaulting Lender, to each of which the applicable assignee and assignor hereby irrevocably consent), to (x) pay and satisfy in full all payment liabilities then owed by such Defaulting Lender to the Administrative Agent or any Lender hereunder (and interest accrued thereon) and (y) acquire (and fund as appropriate) its full pro rata share of all Loans and participations in Letters of Credit and Swing Loans in accordance with its Applicable Percentage. Notwithstanding the foregoing, in the event that any assignment of rights and obligations of any Defaulting Lender hereunder shall become effective under applicable law without compliance with the provisions of this paragraph, then the assignee of such interest shall be deemed to be a Defaulting Lender for all purposes of this Agreement until such compliance occurs.
Appears in 1 contract
Assignments by Lenders. (i) Any Lender may assign all, or if less than all, a fixed portion, any portion of its Loans, LC Participations, Swing Loan Participations and/or Commitments and its rights and obligations hereunder to one or more Eligible Assignees, each of which shall become a party to this Agreement as a Lender by execution of an Assignment Agreement; provided, however, that:
(A) except in the case of (x) of an assignment of the entire remaining amount of the assigning Lender’s Loans and/or Revolving Commitments or (y) an assignment to another Lender, an Affiliate of such Lender or an Approved Fund with respect to such of any Lender, the aggregate amount of the Revolving Commitment so assigned (which for this purpose includes the Loans outstanding thereunder) shall not be less than $2,500,000 (unless otherwise mutually agreed upon by the Borrower and the Administrative Agent)5,000,000;
(B) in the case of any assignment to an Eligible Assignee at the effective time of any such assignment assignment, as determined by the Administrative Agent in accordance with subsection (iv) below, the Lender Register shall be deemed modified to reflect the Revolving Commitments of such new Lender and of the existing Lenders;
(C) upon surrender of the old Notes, if any, upon request of the new Lender, new Notes will be issued, at the Borrower’s expense, to such new Lender and to the assigning Lender, to the extent needed to reflect the revised Revolving Commitments;; and
(D) unless waived by the Administrative Agent, except in the case of an assignment to another Lender, an Affiliate of such Lender or an Approved Fund with respect to such Lender, or any Lenders in connection with the initial syndication of the Credit Facilities on or after the Closing Date, the Administrative Agent shall receive at the time of each such assignment, from the assigning or assignee Lender, the payment of a non-refundable assignment fee of $3,500; and
3,500 (E) any such assignment shall require the prior written consent (such consent (except with respect to treating multiple contemporaneous assignments to competitors or from Approved Funds of the Borrower) not to be unreasonably withheld or delayed) of:
(1) the Borrower; provided that no consent of the Borrower shall be required a single Lender as one assignment for an assignment (x) by a Lender to any Lender or a U.S. based-Affiliate of any Lender, (y) by a Lender to an Approved Fund and (z) during a Specified Event of Default (unless such assignment is to a Disqualified Lender). Notwithstanding anything in this Section 11.06 to the contrary, if the Borrower has not given the Administrative Agent written notice of its objection to an assignment of Loans within fifteen (15) Business Days after written notice purposes of such assignment, the Borrower shall be deemed to have consented to such assignment;
(2) the Administrative Agent; provided that no consent of the Administrative Agent shall be required for an assignment of a Loan to a Lender, an Affiliate of a Lender or an Approved Fund; and
(3) each LC Issuer and Swing Line Lender; provided that no consent of an LC Issuer or Swing Line Lender shall be required for an assignment of a Loan to a Lender, an Affiliate of a Lender or an Approved Fundrequirement).
(ii) To the extent of any assignment pursuant to this subsection subpart (c), the assigning Lender shall be relieved of its obligations hereunder with respect to its assigned Revolving Commitments.
(iii) At the time of each assignment pursuant to this subsection subpart (c) to a Person that is not already a Lender hereunder, the respective assignee Lender shall provide to the Borrower and the Administrative Agent the applicable Internal Revenue Service Forms (and any necessary additional documentation) described in Section 3.02(e)3.3(b) to the extent it is legally able to do so.
(iv) With respect to any Lender, the transfer of any Commitment commitment of such Lender and the rights to the principal of, and interest on, any Loan made pursuant to such Revolving Commitment shall not be effective until such transfer is recorded on the Lender Register maintained by the Administrative Agent (on behalf of and acting solely for this purpose as a non-fiduciary agent of the applicable Borrower) with respect to ownership of such Revolving Commitment and Loans, including the name Loans and address of the Lenders and the principal amount of the Loans (and stated interest thereon). Prior prior to such recordation, recordation all amounts owing to the transferor with respect to such Revolving Commitment and Loans shall remain owing to the transferor. The registration of assignment or transfer of all or part of any Revolving Commitments and Loans shall be recorded by the Administrative Agent on the Lender Register only upon the acceptance by the Administrative Agent of a properly executed and delivered Assignment Agreement pursuant to this subsection subpart (c). The entries in the Lender Register shall be conclusive absent manifest error, and the Borrower, the Administrative Agent and each Lender shall treat each person whose name is recorded in the Lender Register as a Lender hereunder for all purposes of this Agreement notwithstanding any notice to the contrary. The Lender Register shall be available for the inspection by the Borrower and any Lender (solely with respect to its own interest in any Loan or Commitment) at any reasonable time and from time to time upon reasonable prior notice.
(v) [Reserved].
(vi) Nothing in this Section 11.06(c) shall prevent or prohibit (A) any Lender that is a bank, trust company or other financial institution from pledging its Notes or Loans to a Federal Reserve Bank or to any Person that extends credit to such Lender in support of borrowings made by such Lender from such Federal Reserve Bank or such other PersonBank, or (B) any Lender that is a trust, limited liability company, partnership partnership, fund or other investment company from pledging its Notes or Loans to a trustee or agent for the benefit of holders of certificates or debt securities issued by it. No such pledge, or any assignment pursuant to or in lieu of an enforcement of such a pledge, shall relieve the transferor Lender from its obligations hereunder. In connection with any assignment of rights and obligations of any Defaulting Lender hereunder, no such assignment shall be effective unless and until, in addition to the other conditions thereto set forth herein, the parties to the assignment shall make such additional payments to the Administrative Agent in an aggregate amount sufficient, upon distribution thereof as appropriate (which may be outright payment, purchases by the assignee of participations or sub-participations, or other compensating actions, including funding, with the consent of the Borrower and the Administrative Agent, the applicable pro rata share of Loans previously requested but not funded by the Defaulting Lender, to each of which the applicable assignee and assignor hereby irrevocably consent), to (x) pay and satisfy in full all payment liabilities then owed by such Defaulting Lender to the Administrative Agent or any Lender hereunder (and interest accrued thereon) and (y) acquire (and fund as appropriate) its full pro rata share of all Loans and participations in Letters of Credit and Swing Loans in accordance with its Applicable Percentage. Notwithstanding the foregoing, in the event that any assignment of rights and obligations of any Defaulting Lender hereunder shall become effective under applicable law without compliance with the provisions of this paragraph, then the assignee of such interest shall be deemed to be a Defaulting Lender for all purposes of this Agreement until such compliance occurs.
Appears in 1 contract
Samples: Credit Agreement (RBC Bearings INC)
Assignments by Lenders. (i) Any Subject to the conditions set forth in paragraph (b)(ii) below, any Lender may assign all, or if less than all, a fixed portion, of its Loans, LC Participations, Swing Loan Participations and/or Commitments and its rights and obligations hereunder delegate to one or more Eligible Assignees, each Assignees all or a portion of which shall become a party to its rights and obligations under this Agreement as (including all or a Lender by execution portion of an Assignment Agreement; provided, however, that:
(A) except in the case of (x) an assignment of the entire remaining amount of the assigning Lender’s Loans and/or Commitments or (y) an assignment to another Lender, an Affiliate of such Lender or an Approved Fund with respect to such Lender, the aggregate amount of the its Commitment so assigned (which for this purpose includes and the Loans outstanding thereunder) shall not be less than $2,500,000 (unless otherwise mutually agreed upon by the Borrower and the Administrative Agent);
(B) in the case of any assignment to an Eligible Assignee at the time of any such assignment the Lender Register shall be deemed modified owing to reflect the Commitments of such new Lender and of the existing Lenders;
(Cit) upon surrender of the old Notes, if any, upon request of the new Lender, new Notes will be issued, at the Borrower’s expense, to such new Lender and to the assigning Lender, to the extent needed to reflect the revised Commitments;
(D) unless waived by the Administrative Agent, except in the case of an assignment to another Lender, an Affiliate of such Lender or an Approved Fund with respect to such Lender, or any Lenders in connection with the initial syndication of the Credit Facilities on or after the Closing Date, the Administrative Agent shall receive at the time of each such assignment, from the assigning or assignee Lender, the payment of a non-refundable assignment fee of $3,500; and
(E) any such assignment shall require the prior written consent (such consent (except with respect to assignments to competitors of the Borrower) not to be unreasonably withheld or delayedwithheld) of:
of (1A) the Borrower; provided that no consent of the Borrower shall be required for an assignment (x) by and delegation to a Lender to any Lender or a U.S. based-Lender, an Affiliate of any a Lender, (y) by a Lender to an Approved Fund and (z) during or, if a Specified payment Default or an Event of Default (unless such assignment has occurred and is to a Disqualified Lender). Notwithstanding anything in this Section 11.06 to the contrarycontinuing, if the Borrower has not given the Administrative Agent written notice of its objection to an assignment of Loans within fifteen (15) Business Days after written notice of such assignment, any other Eligible Assignee; provided further that the Borrower shall be deemed to have consented to any such assignment;
assignment and delegation unless it shall object thereto by notice to the Administrative Agent within five Business Days after having received notice thereof, (2B) the Administrative Agent; provided that no consent of the Administrative Agent shall be required for an assignment and delegation of all or any portion of a Term Loan to a Lender, an Affiliate of a Lender or an Approved Fund; and, (C) each Issuing Bank, in the case of any assignment and delegation of all or a portion of a Revolving Commitment or any Lender’s obligations in respect of its LC Exposure and (D) the Swingline Lender, in the case of any assignment and delegation of all or a portion of a Revolving Commitment or any Lender’s obligations in respect of its Swingline Exposure.
(3ii) each LC Issuer Assignments and Swing Line Lender; provided that no consent delegations shall be subject to the following additional conditions: (A) except in the case of an LC Issuer or Swing Line Lender shall be required for an assignment of a Loan and delegation to a Lender, an Affiliate of a Lender or an Approved Fund.
(ii) To Fund or an assignment and delegation of the extent entire remaining amount of the assigning Lender’s Commitment or Loans of any assignment pursuant to this subsection (c)Class, the amount of the Commitment or Loans of the assigning Lender shall be relieved subject to each such assignment and delegation (determined as of its obligations hereunder the trade date specified in the Assignment and Assumption with respect to its assigned Commitments.
(iiisuch assignment and delegation or, if no trade date is so specified, as of the date the Assignment and Assumption with respect to such assignment and delegation is delivered to the Administrative Agent) At shall not be less than $5,000,000 or, in the time case of Term Loans, $1,000,000, unless each assignment pursuant to this subsection (c) to a Person that is not already a Lender hereunder, the respective assignee Lender shall provide to of the Borrower and the Administrative Agent otherwise consents (such consent not to be unreasonably withheld or delayed); provided that no such consent of the Borrower shall be required if an Event of Default has occurred and is continuing, (B) each partial assignment and delegation shall be made as an assignment and delegation of a proportionate part of all the assigning Lender’s rights and obligations under this Agreement; provided that this clause (B) shall not be construed to prohibit the assignment and delegation of a proportionate part of all the assigning Lender’s rights and obligations in respect of one Class of Commitments or Loans, (C) the parties to each assignment and delegation shall execute and deliver to the Administrative Agent an Assignment and Assumption, together with a processing and recordation fee of $3,500; provided that (1) only one such processing and recordation fee shall be payable in the event of simultaneous assignments and delegations from any Lender or its Approved Funds to one or more other Approved Funds of such Lender and (2) with respect to any assignment pursuant to Section 2.19(b) or 9.02(c), the parties hereto agree that such assignment may be effected pursuant to an Assignment and Assumption executed by the Borrower, the Administrative Agent and the assignee and that the Lender required to make such assignment need not be a party thereto, and (D) the assignee, if it shall not be a Lender, shall deliver to the Administrative Agent any tax forms required by Section 2.17(f) and an Administrative Questionnaire in which the assignee designates one or more credit contacts to whom all syndicate-level information (which may contain MNPI) will be made available and who may receive such information in accordance with the assignee’s compliance procedures and applicable law, including Federal, State and foreign securities laws.
(iii) Subject to acceptance and recording thereof pursuant to paragraph (b)(v) of this Section 9.04, from and after the effective date specified in each Assignment and Assumption, the assignee thereunder shall be a party hereto and, to the extent of the interest assigned and delegated by such Assignment and Assumption, have the rights and obligations of a Lender under this Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned and delegated by such Assignment and Assumption, be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption covering all the assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto but shall continue to be entitled to the benefits of (and subject to the obligations and limitations of) Sections 2.15, 2.16, 2.17 and 9.03 and, subject to the terms of the applicable Internal Revenue Service Forms (Assignment and Assumption, to any necessary additional documentation) described interest, fees and other amounts payable hereunder that have accrued for such Lender’s account but have not yet been paid). Any assignment, delegation or other transfer by a Lender of rights or obligations under this Agreement that does not comply with this Section 9.04 shall be treated for purposes of this Agreement as a sale by such Lender of a participation in such rights and obligations in accordance with Section 3.02(e9.04(c).
(iv) With respect to any LenderThe Administrative Agent, the transfer of any Commitment of such Lender and the rights to the principal of, and interest on, any Loan made pursuant to such Commitment shall not be effective until such transfer is recorded on the Lender Register maintained by the Administrative Agent (on behalf of and acting solely for this purpose as a non-fiduciary agent of the applicable Borrower) with respect , shall maintain at one of its offices a copy of each Assignment and Assumption delivered to ownership of such Commitment it and Loans, including a register for the name and address recordation of the Lenders names and addresses of the Lenders, and the Commitment of, and principal amount (and stated interest) of the Loans (and stated interest thereon). Prior to such recordationLC Disbursements owing to, all amounts owing each Lender pursuant to the transferor with respect terms hereof from time to such Commitment and Loans shall remain owing to time (the transferor. The registration of assignment or transfer of all or part of any Commitments and Loans shall be recorded by the Administrative Agent on the Lender Register only upon the acceptance by the Administrative Agent of a properly executed and delivered Assignment Agreement pursuant to this subsection (c“Register”). The entries in the Lender Register shall be conclusive absent manifest error, and Holdings, the Borrower, the Administrative Agent Agent, the Issuing Banks and each Lender the Lenders shall treat each person Person whose name is recorded in the Lender Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement Agreement, notwithstanding any notice to the contrary. The Lender Register shall be available for the inspection by the Borrower and and, as to entries pertaining to it, any Lender (solely with respect to its own interest in Issuing Bank or any Loan or Commitment) Lender, at any reasonable time and from time to time upon reasonable prior notice.
(v) [Reserved]Upon receipt by the Administrative Agent of a duly completed Assignment and Assumption executed by an assigning Lender and an assignee, the assignee’s completed Administrative Questionnaire and any tax forms required by Section 2.17(f) (unless the assignee shall already be a Lender hereunder), the processing and recordation fee referred to in paragraph (b) of this Section 9.04 and any written consent to such assignment and delegation required by paragraph (b) of this Section 9.04, the Administrative Agent shall accept such Assignment and Assumption and record the information contained therein in the Register; provided that the Administrative Agent shall not be required to accept such Assignment and Assumption or so record the information contained therein if the Administrative Agent reasonably believes that such Assignment and Assumption lacks any written consent required by this Section 9.04 or is otherwise not in proper form, it being acknowledged that the Administrative Agent shall have no duty or obligation (and shall incur no liability) with respect to obtaining (or confirming the receipt) of any such written consent or with respect to the form of (or any defect in) such Assignment and Assumption, any such duty and obligation being solely with the assigning Lender and the assignee. No assignment or delegation shall be effective for purposes of this Agreement unless it has been recorded in the Register as provided in this paragraph and, following such recording, unless otherwise determined by the Administrative Agent (such determination to be made in the sole discretion of the Administrative Agent, which determination may be conditioned on the consent of the assigning Lender and the assignee), shall be effective notwithstanding any defect in the Assignment and Assumption relating thereto. Each assigning Lender and the assignee, by its execution and delivery of an Assignment and Assumption, shall be deemed to have represented to the Administrative Agent that all written consents required by this Section 9.04 with respect thereto (other than the consent of the Administrative Agent) have been obtained and that such Assignment and Assumption is otherwise duly completed and in proper form, and each assignee, by its execution and delivery of an Assignment and Assumption, shall be deemed to have represented to the assigning Lender and the Administrative Agent that such assignee is an Eligible Assignee.
(vi) Nothing The words “execution”, “signed”, “signature” and words of like import in this Section 11.06(c) shall prevent or prohibit (A) any Lender that is a bank, trust company or other financial institution from pledging its Notes or Loans to a Federal Reserve Bank or to any Person that extends credit to such Lender in support of borrowings made by such Lender from such Federal Reserve Bank or such other Person, or (B) any Lender that is a trust, limited liability company, partnership or other investment company from pledging its Notes or Loans to a trustee or agent for the benefit of holders of certificates or debt securities issued by it. No such pledge, or any assignment pursuant to or in lieu of an enforcement of such a pledge, shall relieve the transferor Lender from its obligations hereunder. In connection with any assignment of rights Assignment and obligations of any Defaulting Lender hereunder, no such assignment shall be effective unless and until, in addition to the other conditions thereto set forth herein, the parties to the assignment shall make such additional payments to the Administrative Agent in an aggregate amount sufficient, upon distribution thereof as appropriate (which may be outright payment, purchases by the assignee of participations or sub-participations, or other compensating actions, including funding, with the consent of the Borrower and the Administrative Agent, the applicable pro rata share of Loans previously requested but not funded by the Defaulting Lender, to each of which the applicable assignee and assignor hereby irrevocably consent), to (x) pay and satisfy in full all payment liabilities then owed by such Defaulting Lender to the Administrative Agent or any Lender hereunder (and interest accrued thereon) and (y) acquire (and fund as appropriate) its full pro rata share of all Loans and participations in Letters of Credit and Swing Loans in accordance with its Applicable Percentage. Notwithstanding the foregoing, in the event that any assignment of rights and obligations of any Defaulting Lender hereunder shall become effective under applicable law without compliance with the provisions of this paragraph, then the assignee of such interest Assumption shall be deemed to include electronic signatures or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a Defaulting Lender manually executed signature or the use of a paper-based recordkeeping system, as applicable, to the extent and as provided for all purposes of this Agreement until such compliance occursin any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act or any other similar State laws based on the Uniform Electronic Transactions Act.
Appears in 1 contract
Assignments by Lenders. (i) Any Subject to the conditions set forth in paragraph (b)(ii) of this Section, any Lender may assign all, all or if less than all, a fixed portion, portion of its Loans, LC Participations, Swing Loan Participations and/or Commitments and its rights and obligations hereunder under this Agreement (including all or a portion of its Commitment and the LC Disbursements at the time owing to it) to one or more Eligible Assignees, each NAIC Approved Banks (or to any other Person whose obligations in respect of which shall become a party to this Agreement as a Lender by execution Letters of an Assignment Agreement; provided, however, that:
(A) except in the case of (x) an assignment of the entire remaining amount of the assigning Lender’s Loans and/or Commitments or (y) an assignment to another Lender, an Affiliate of such Lender or an Approved Fund with respect to such Lender, the aggregate amount of the Commitment so assigned (which for this purpose includes the Loans outstanding thereunder) shall not be less than $2,500,000 (unless otherwise mutually agreed upon by the Borrower and the Administrative Agent);
(B) in the case of any assignment to an Eligible Assignee at the time of any such assignment the Lender Register Credit shall be deemed modified to reflect the Commitments of such new Lender and of the existing Lenders;
(Cconfirmed by a NAIC Approved Bank) upon surrender of the old Notes, if any, upon request of the new Lender, new Notes will be issued, at the Borrower’s expense, to such new Lender and to the assigning Lender, to the extent needed to reflect the revised Commitments;
(D) unless waived by the Administrative Agent, except in the case of an assignment to another Lender, an Affiliate of such Lender or an Approved Fund with respect to such Lender, or any Lenders in connection with the initial syndication of the Credit Facilities on or after the Closing Date, the Administrative Agent shall receive at the time of each such assignment, from the assigning or assignee Lender, the payment of a non-refundable assignment fee of $3,500; and
(E) any such assignment shall require the prior written consent (such consent (except with respect to assignments to competitors of the Borrower) not to be unreasonably withheld or delayedwithheld) of:
(1A) the Borrower; Account Parties, provided that no consent of the Borrower any Account Party shall be required for an assignment (x) by to a Lender, an Affiliate of a Lender to any Lender or a U.S. based-Affiliate of any Lenderor, (y) by a Lender to if an Approved Fund and (z) during a Specified Event of Default under clause (unless such assignment a), (b), (g) or (h) of Article VIII has occurred and is to a Disqualified Lender). Notwithstanding anything in this Section 11.06 to continuing, any other assignee; and provided further that the contrary, if the Borrower has not given the Administrative Agent written notice of its objection to an assignment of Loans within fifteen (15) Business Days after written notice of such assignment, the Borrower Account Parties shall be deemed to have consented to any such assignmentassignment unless any Account Party shall object thereto by written notice to the Administrative Agent within 10 Business Days after having received a written request for such consent;
(2B) the Administrative Agent; , provided that no consent of the Administrative Agent shall be required for an assignment to a Lender or an Affiliate of a Loan Lender; and
(C) the Issuing Lender with respect to Participated Letters of Credit; provided that no consent of the Issuing Lender shall be required for an assignment to a Lender or an Affiliate of a Lender, ;
(ii) Assignments shall be subject to the following additional conditions:
(A) except in the case of an assignment to a Lender or an Affiliate of a Lender or an Approved Fundassignment of the entire remaining amount of the assigning Lender’s Commitment, the amount of the Commitment of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent) shall not be less than $5,000,000 unless each of the Account Parties and the Administrative Agent otherwise consent, provided that no such consent of the Account Parties shall be required if an Event of Default under clause (a), (b), (g) or (h) of Article VIII has occurred and is continuing;
(B) 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;
(C) the parties to each assignment shall execute and deliver to the Administrative Agent an Assignment and Assumption, together with a processing and recordation fee of $3,500; and
(3D) each LC Issuer and Swing Line Lender; provided that no consent of an LC Issuer or Swing Line Lender the assignee, if it shall not be required for an assignment of a Loan to a Lender, shall deliver an Affiliate of Administrative Questionnaire to the Administrative Agent (with a Lender or an Approved Fund.
(ii) To the extent of any assignment pursuant copy to this subsection (cXL Group), the assigning Lender shall be relieved of its obligations hereunder with respect to its assigned Commitments.
(iii) At the time of each assignment Subject to acceptance and recording thereof pursuant to paragraph (b)(v) of this subsection Section, from and after the effective date specified in each Assignment and Assumption, the assignee thereunder shall be a party hereto and, to the extent of the interest assigned by such Assignment and Assumption, have the rights and obligations of a Lender under this Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment and Assumption, be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption covering all of the assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto but shall continue to be entitled to the benefits and subject to the limitations of Sections 2.10, 2.11 and 10.03). Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this Section 10.04 shall be treated for purposes of this Agreement as a sale by such Lender of a participation in such rights and obligations in accordance with paragraph (c) to a Person that is not already a Lender hereunder, the respective assignee Lender shall provide to the Borrower and the Administrative Agent the applicable Internal Revenue Service Forms (and any necessary additional documentation) described in Section 3.02(e)of this Section.
(iv) With 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 Administrative Agent and the Account Parties, the option to provide to the Account Parties all or any part of any LC Disbursement that such Granting Lender would otherwise be obligated to make to the Account Parties pursuant to Section 2.01, provided that (i) nothing herein shall constitute a commitment by any SPV to make any LC Disbursement, (ii) if an SPV elects not to exercise such option or otherwise fails to provide all or any part of such LC Disbursement, the Granting Lender shall be obligated to make such LC Disbursement pursuant to the terms hereof and shall in any case remain responsible to the other parties for the performance of its obligations under the terms of this Agreement and shall remain the Lender for all purposes hereunder (including, without limitation, with respect to the rights and responsibilities to deliver all consents and waivers required or requested under this Agreement with respect to its SPV) and (iii) the Account Parties may bring any proceeding against either or both the Granting Lender or the SPV in order to enforce any rights of the Account Parties hereunder. The making of a LC Disbursement by an SPV hereunder shall utilize the Commitment of the Granting Lender to the same extent, and as if, such LC Disbursement 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 Account Parties or the Administrative Agent and without paying any processing fee therefor, assign all or a portion of its interests in any Letter of Credit to its Granting Lender or to any financial institutions (consented to by the Account Parties and the Administrative Agent) providing liquidity and/or credit support (if any) with respect to commercial paper issued by such SPV to issue such Letters of Credit and such SPV may disclose, on a confidential basis, confidential information with respect to any LenderAccount Party and its Subsidiaries to any rating agency, commercial paper dealer or provider of a surety, guarantee or credit liquidity enhancement to such SPV; provided that non-public information with respect to any Account Parties or its Subsidiaries may be disclosed only with such Account Party’s consent which will not be unreasonably withheld. Notwithstanding anything to the transfer contrary in this Agreement, no SPV shall be entitled to any greater rights under Section 2.10 or Section 2.11 than its Granting Lender would have been entitled to absent the use of such SPV. This paragraph may not be amended without the consent of any Commitment of such Lender and SPV at the rights to the principal oftime holding LC Disbursements under this Agreement.
(v) The Administrative Agent, and interest on, any Loan made pursuant to such Commitment shall not be effective until such transfer is recorded on the Lender Register maintained by the Administrative Agent (on behalf of and acting solely for this purpose as a non-fiduciary an agent of the applicable Borrower) with respect Account Parties, shall maintain at one of its offices in New York City a copy of each Assignment and Assumption delivered to ownership of such Commitment it and Loans, including a register for the name and address recordation of the Lenders names and addresses of the Lenders, the Commitment of, and principal amount of the Loans (and stated interest thereon). Prior to such recordationLC Disbursements owing to, all amounts owing each Lender pursuant to the transferor with respect terms hereof from time to such Commitment and Loans shall remain owing to time (the transferor. The registration of assignment or transfer of all or part of any Commitments and Loans shall be recorded by the Administrative Agent on the Lender Register only upon the acceptance by the Administrative Agent of a properly executed and delivered Assignment Agreement pursuant to this subsection (c“Register”). The entries in the Lender Register shall be conclusive conclusive, absent manifest error, and the BorrowerAccount Parties, the Administrative Agent and each Lender the Lenders shall treat each person Person whose name is recorded in the Lender Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement Agreement, notwithstanding any notice to the contrary. The Lender Register shall be available for the inspection by the Borrower any Account Party and any Lender (solely with respect to its own interest in any Loan or Commitment) Lender, at any reasonable time and from time to time upon reasonable prior notice.
(v) [Reserved].
(vi) Nothing Upon its receipt of a duly completed Assignment and Assumption executed by an assigning Lender and an assignee, the assignee’s completed Administrative Questionnaire (unless the assignee shall already be a Lender hereunder), the processing and recordation fee referred to in paragraph (b)(ii)(C) of this Section 11.06(c) shall prevent or prohibit (A) and any Lender that is a bank, trust company or other financial institution from pledging its Notes or Loans to a Federal Reserve Bank or to any Person that extends credit written consent to such Lender assignment required by paragraph (b)(i) of this Section, the Administrative Agent shall accept such Assignment and Assumption and record the information contained therein in support of borrowings made by such Lender from such Federal Reserve Bank or such other Person, or (B) any Lender that is a trust, limited liability company, partnership or other investment company from pledging its Notes or Loans to a trustee or agent for the benefit of holders of certificates or debt securities issued by itRegister. No such pledge, or any assignment pursuant to or in lieu of an enforcement of such a pledge, shall relieve the transferor Lender from its obligations hereunder. In connection with any assignment of rights and obligations of any Defaulting Lender hereunder, no such assignment shall be effective unless and until, in addition to the other conditions thereto set forth herein, the parties to the assignment shall make such additional payments to the Administrative Agent in an aggregate amount sufficient, upon distribution thereof as appropriate (which may be outright payment, purchases by the assignee of participations or sub-participations, or other compensating actions, including funding, with the consent of the Borrower and the Administrative Agent, the applicable pro rata share of Loans previously requested but not funded by the Defaulting Lender, to each of which the applicable assignee and assignor hereby irrevocably consent), to (x) pay and satisfy in full all payment liabilities then owed by such Defaulting Lender to the Administrative Agent or any Lender hereunder (and interest accrued thereon) and (y) acquire (and fund as appropriate) its full pro rata share of all Loans and participations in Letters of Credit and Swing Loans in accordance with its Applicable Percentage. Notwithstanding the foregoing, in the event that any assignment of rights and obligations of any Defaulting Lender hereunder shall become effective under applicable law without compliance with the provisions of this paragraph, then the assignee of such interest shall be deemed to be a Defaulting Lender for all purposes of this Agreement until such compliance occursunless it has been recorded in the Register as provided in this paragraph.
Appears in 1 contract
Assignments by Lenders. (i) Any Lender may assign all, or if less than all, a fixed portion, of its Loans, LC Participations, Swing Loan Participations and/or Commitments and its rights and obligations hereunder to one or more Eligible Assignees, each of which shall become a party to this Agreement as a Lender by execution of an Assignment Agreement; provided, however, that:
(A) except in the case of (x) an assignment of the entire remaining amount of the assigning Lender’s Loans and/or Commitments or (y) an assignment to another Lender, an Affiliate of such Lender or an Approved Fund with respect to such Lender, the aggregate amount of the Commitment so assigned (which for this purpose includes the Loans outstanding thereunder) shall not be less than $2,500,000 (unless otherwise mutually agreed upon by the Borrower and the Administrative Agent)5,000,000;
(B) in the case of any assignment to an Eligible Assignee at the time of any such assignment the Lender Register shall be deemed modified to reflect the Commitments of such new Lender and of the existing Lenders;
(C) upon surrender of the old Notes, if any, upon request of the new Lender, new Notes will be issued, at the Borrower’s expense, to such new Lender and to the assigning Lender, to the extent needed to reflect the revised Commitments;; and
(D) unless waived by the Administrative Agent, except in the case of an assignment to another Lender, an Affiliate of such Lender or an Approved Fund with respect to such Lender, or any Lenders in connection with the initial syndication of the Credit Facilities on or after the Closing Date, the Administrative Agent shall receive at the time of each such assignment, from the assigning or assignee Lender, the payment of a non-refundable assignment fee of $3,500; and
(E) any such assignment shall require the prior written consent (such consent (except with respect to assignments to competitors of the Borrower) not to be unreasonably withheld or delayed) of:
(1) the Borrower; provided that no consent of the Borrower shall be required for an assignment (x) by a Lender to any Lender or a U.S. based-Affiliate of any Lender, (y) by a Lender to an Approved Fund and (z) during a Specified Event of Default (unless such assignment is to a Disqualified Lender). Notwithstanding anything in this Section 11.06 to the contrary, if the Borrower has not given the Administrative Agent written notice of its objection to an assignment of Loans within fifteen (15) Business Days after written notice of such assignment, the Borrower shall be deemed to have consented to such assignment;
(2) the Administrative Agent; provided that no consent of the Administrative Agent shall be required for an assignment of a Loan to a Lender, an Affiliate of a Lender or an Approved Fund; and
(3) each LC Issuer and Swing Line Lender; provided that no consent of an LC Issuer or Swing Line Lender shall be required for an assignment of a Loan to a Lender, an Affiliate of a Lender or an Approved Fund.
(ii) To the extent of any assignment pursuant to this subsection subpart (c), the assigning Lender shall be relieved of its obligations hereunder with respect to its assigned CommitmentsCommitments provided, that except to the extent otherwise expressly agreed by the affected parties, no assignment by a Defaulting Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender’s having been a Defaulting Lender.
(iii) At the time of each assignment pursuant to this subsection subpart (c) ), to a Person that is not already a Lender hereunderhereunder and that is not a U.S. Person for Federal income tax purposes, the respective assignee Lender shall provide to the Borrower and the Administrative Agent the applicable Internal Revenue Service Forms (and any necessary additional documentation) described in Section 3.02(e3.03(g).
(iv) With respect to any Lender, the transfer of any Commitment of such Lender and the rights to the principal of, and interest on, any Loan made pursuant to such Commitment shall not be effective until such transfer is recorded on the Lender Register maintained by the Administrative Agent (on behalf of and acting solely for this purpose as a non-fiduciary agent of the applicable Borrower) with respect to ownership of such Commitment and Loans, including the name and address of the Lenders and the principal amount of the Loans (and stated interest thereon). Prior to such recordation, all amounts owing to the transferor with respect to such Commitment and Loans shall remain owing to the transferor. The registration of assignment or transfer of all or part of any Commitments and Loans shall be recorded by the Administrative Agent on the Lender Register only upon the acceptance by the Administrative Agent of a properly executed and delivered Assignment Agreement pursuant to this subsection subpart (c). The entries in the Lender Register shall be conclusive absent manifest error, and the Borrower, the Administrative Agent and each Lender shall treat each person whose name is recorded in the Lender Register as a Lender hereunder for all purposes of this Agreement notwithstanding any notice to the contrary. The Lender Register shall be available for the inspection by the Borrower and any Lender (solely with respect to its own interest in any Loan or Commitment) at any reasonable time and from time to time upon reasonable prior notice.
(v) [Reserved].
(vi) Nothing in this Section 11.06(c) shall prevent or prohibit (A) any Lender that is a bank, trust company or other financial institution from pledging its Notes or Loans to a Federal Reserve Bank or to any Person that extends credit to such Lender in support of borrowings made by such Lender from such Federal Reserve Bank or such other Person, or (B) any Lender that is a trust, limited liability company, partnership or other investment company from pledging its Notes or Loans to a trustee or agent for the benefit of holders of certificates or debt securities issued by it. No such pledge, or any assignment pursuant to or in lieu of an enforcement of such a pledge, shall relieve the transferor Lender from its obligations hereunder. .
(vi) In connection with any assignment of rights and obligations of any Defaulting Lender hereunder, no such assignment shall be effective unless and until, in addition to the other conditions thereto set forth herein, the parties to the assignment shall make such additional payments to the Administrative Agent in an aggregate amount sufficient, upon distribution thereof as appropriate (which may be outright payment, purchases by the assignee of participations or sub-participationssubparticipations, or other compensating actions, including funding, with the consent of the Borrower and the Administrative Agent, the applicable pro rata share of Loans previously requested but not funded by the Defaulting Lender, to each of which the applicable assignee and assignor hereby irrevocably consent), to (x) pay and satisfy in full all payment liabilities then owed by such Defaulting Lender to the Administrative Agent or any Agent, each LC Issuer, each Swing Line Lender and each other Lender hereunder (and interest accrued thereon) ), and (y) acquire (and fund as appropriate) its full pro rata share of all Loans and participations in Letters of Credit and Swing Loans in accordance with its Applicable Revolving Facility Percentage. Notwithstanding the foregoing, in the event that any assignment of rights and obligations of any Defaulting Lender hereunder shall become effective under applicable law without compliance with the provisions of this paragraph, then the assignee of such interest shall be deemed to be a Defaulting Lender for all purposes of this Agreement until such compliance occurs. Notwithstanding anything contained herein, no Lender may assign, sell, negotiate or otherwise transfer (a “Sale”) its Loans, LC Participations, Swing Loan Participations and/or Commitments to any Credit Party or any Affiliate of any of the foregoing.
Appears in 1 contract
Assignments by Lenders. (i) Any Lender may assign all, or if less than all, a fixed portion, of its Loans, LC Participations, Swing Loan Participations and/or Commitments and its rights and obligations hereunder to one or more Eligible Assignees, each of which shall become a party to this Agreement as a Lender by execution of an Assignment Agreement; provided, however, that:
(A) except in the case of (x) an assignment of the entire remaining amount of the assigning Lender’s Loans and/or Commitments or (y) an assignment to another Lender, an Affiliate of such Lender or an Approved Fund with respect to such Lender, the aggregate amount of the Commitment so assigned (which for this purpose includes the Loans outstanding thereunder) shall not be less than $2,500,000 1.0 million, in the case of Term Loans or $5.0 million, in the case of Revolving Loans and Revolving Commitments (unless otherwise mutually agreed upon by the Parent Borrower and the Administrative Agent);
(B) in the case of any assignment to an Eligible Assignee at the time of any such assignment the Lender Register shall be deemed modified to reflect the Commitments of such new Lender and of the existing Lenders;
(C) upon surrender of the old Notes, if any, upon request of the new Lender, new Notes will be issued, at the Parent Borrower’s expense, to such new Lender and to the assigning Lender, to the extent needed to reflect the revised Commitments;
(D) unless waived by the Administrative Agent, except in the case of an assignment to another Lender, an Affiliate of such Lender or an Approved Fund with respect to such Lender, or any Lenders in connection with the initial syndication of the Credit Facilities on or after the Closing Date, the Administrative Agent shall receive at the time of each such assignment, from the assigning or assignee Lender, the payment of a non-refundable assignment fee of $3,500; and;
(E) any such assignment shall require the prior written consent (such consent (except with respect to assignments to competitors of the Borrower) not to be unreasonably withheld or delayed) of:
(1) the Borrower; provided that no consent of the Parent Borrower shall be required for an assignment (x) by a Lender to any Lender or a U.S. based-Affiliate of any Lender, (y) by a Lender to an Approved Fund and (z) during a Specified Event of Default (unless such assignment is to a Disqualified Lender). Notwithstanding anything in this Section 11.06 to the contrary, if the Borrower has not given the Administrative Agent written notice of its objection to an assignment of Loans within fifteen (15) Business Days after written notice of such assignment, the Borrower shall will be deemed to have consented given the consent required in the definition of “Eligible Assignee” to such assignment;
Assignment if Parent Borrower has not responded in writing within ten (210) the Administrative Agent; provided that no consent of the Administrative Agent shall be required for an assignment Business Days of a Loan to a Lender, an Affiliate of a Lender or an Approved Fund; and
(3) each LC Issuer and Swing Line Lender; provided that no consent of an LC Issuer or Swing Line Lender shall be required request for an assignment of a Loan to a Lender, an Affiliate of a Lender or an Approved Fundconsent.
(ii) To the extent of any assignment pursuant to this subsection subpart (c), the assigning Lender shall be relieved of its obligations hereunder with respect to its assigned Commitments.
(iii) At the time of each assignment pursuant to this subsection subpart (c) to a Person that is not already a Lender hereunder, the respective assignee Lender shall provide to the Parent Borrower and the Administrative Agent the applicable Internal Revenue Service Forms (and any necessary additional documentation) described in Section 3.02(e3.02(g).
(iv) With respect to any Lender, the transfer of any Commitment of such Lender and the rights to the principal of, and interest on, any Loan made pursuant to such Commitment shall not be effective until such transfer is recorded on the Lender Register maintained by the Administrative Agent (on behalf of and acting solely for this purpose as a non-fiduciary agent of the applicable Borrower) with respect to ownership of such Commitment and Loans, including the name and address of the Lenders and the principal amount of the Loans (and stated interest thereon). Prior to such recordation, all amounts owing to the transferor with respect to such Commitment and Loans shall remain owing to the transferor. The registration of assignment or transfer of all or part of any Commitments and Loans shall be recorded by the Administrative Agent on the Lender Register only upon the acceptance by the Administrative Agent of a properly executed and delivered Assignment Agreement pursuant to this subsection subpart (c). The entries in the Lender Register shall be conclusive absent manifest error, and the each Borrower, the Administrative Agent and each Lender shall treat each person whose name is recorded in the Lender Register as a Lender hereunder for all purposes of this Agreement notwithstanding any notice to the contrary. The Lender Register shall be available for the inspection by the Parent Borrower and any Lender (solely with respect to its own interest in any Loan or Commitment) at any reasonable time and from time to time upon reasonable prior notice.
(v) [Reserved]Notwithstanding the foregoing, in no event shall the Administrative Agent be obligated to ascertain, monitor or inquire as to whether any Lender is an Affiliated Lender nor shall the Administrative Agent be obligated to monitor the aggregate amount of Term Loans held by Affiliated Lenders. Upon request by the Administrative Agent, the Parent Borrower shall (i) promptly (and in any case, not less than five (5) Business Days (or shorter period as agreed to by the Administrative Agent) prior to the proposed effective date of any amendment, consent or waiver pursuant to Section 11.12) provide to the Administrative Agent, a complete list of all Affiliated Lenders holding Term Loans at such time and (ii) not less than five (5) Business Days (or shorter period as agreed to by the Administrative Agent) prior to the proposed effective date of any amendment, consent or waiver pursuant to Section 11.12, provide to the Administrative Agent, a complete list of all Affiliated Debt Funds holding Term Loans at such time.
(vi) Nothing in this Section 11.06(c) shall prevent or prohibit (A) any Lender that is a bank, trust company or other financial institution from pledging its Notes or Loans to a Federal Reserve Bank or to any Person that extends credit to such Lender in support of borrowings made by such Lender from such Federal Reserve Bank or such other Person, or (B) any Lender that is a trust, limited liability company, partnership or other investment company from pledging its Notes or Loans to a trustee or agent for the benefit of holders of certificates or debt securities issued by it. No such pledge, or any assignment pursuant to or in lieu of an enforcement of such a pledge, shall relieve the transferor Lender from its obligations hereunder. In connection with any assignment of rights and obligations of any Defaulting Lender hereunder, no such assignment shall be effective unless and until, in addition to the other conditions thereto set forth herein, the parties to the assignment shall make such additional payments to the Administrative Agent in an aggregate amount sufficient, upon distribution thereof as appropriate (which may be outright payment, purchases by the assignee of participations or sub-participationssubparticipations, or other compensating actions, including funding, with the consent of the Parent Borrower and the Administrative Agent, the applicable pro rata share of Loans previously requested but not funded by the Defaulting Lender, to each of which the applicable assignee and assignor hereby irrevocably consent), to (x) pay and satisfy in full all payment liabilities then owed by such Defaulting Lender to the Administrative Agent or any Lender hereunder (and interest accrued thereon) and (y) acquire (and fund as appropriate) its full pro rata share of all Loans and participations in Letters of Credit and Swing Loans in accordance with its Applicable Percentage. Notwithstanding the foregoing, in the event that any assignment of rights and obligations of any Defaulting Lender hereunder shall become effective under applicable law without compliance with the provisions of this paragraph, then the assignee of such interest shall be deemed to be a Defaulting Lender for all purposes of this Agreement until such compliance occurs.
Appears in 1 contract
Samples: Credit Agreement (Patheon Inc)
Assignments by Lenders. Notwithstanding the foregoing, (ix) Any any Lender may assign all or a fixed portion of its Loans and/or Commitment, and its rights and obligations hereunder, which does not have to be pro rata among the Facilities, to another Lender that is not a Defaulting Lender, or to an Affiliate of any Lender (including itself or an Approved Fund) and which is not a Defaulting Lender and which is a commercial bank, financial institution or other "accredited investor" (as defined in SEC Regulation D), and (y) any Lender may assign all, or if less than all, a fixed portion, equal to at least $1,000,000 in the aggregate for the assigning Lender or assigning Lenders, of its Loans, LC Participations, Swing Loan Participations Loans and/or Commitments Commitment and its rights and obligations hereunder hereunder, which does not have to be pro rata among the Facilities, to one or more Eligible AssigneesTransferees, each of which assignees shall become a party to this Agreement as a Lender by execution of an Assignment Agreement; provided, however, provided that:
(A) except in the case of (x) an assignment of the entire remaining amount of the assigning Lender’s Loans and/or Commitments or (y) an assignment to another Lender, an Affiliate of such Lender or an Approved Fund with respect to such Lender, the aggregate amount of the Commitment so assigned (which for this purpose includes the Loans outstanding thereunder) shall not be less than $2,500,000 (unless otherwise mutually agreed upon by the Borrower and the Administrative Agent);
(Bi) in the case of any assignment of a portion of any Loans and/or Commitment of a Lender, such Lender shall retain a minimum fixed portion of all Loans and Commitments equal to an Eligible Assignee at least $1,000,000,
(ii) at the time of any such assignment the Lender Register shall be deemed modified to reflect the Commitments of such new Lender and of the existing Lenders;,
(Ciii) upon surrender of the old Notes, Notes (if any, upon in the case of Term Notes), new Notes will be issued (in the case of Term Notes, at the request of the new Lender, new Notes will be issued), at the Borrower’s Company's expense, to such new Lender and to the assigning Lender, such new Notes to be in conformity with the requirements of section 2.5 (with appropriate modifications) to the extent needed to reflect the revised Commitments;,
(Div) unless waived by the Administrative Agent, except in the case of an assignment to another Lenderclause (y) only, an Affiliate the consent of such Lender or an Approved Fund with respect to such Lender, or any Lenders the Administrative Agent shall be required in connection with any such assignment (which consent shall not be unreasonably withheld or delayed),
(v) in the initial syndication case of any assignment of all or any portion of a Revolving Commitment to any person, other than another Lender that is not a Defaulting Lender, the consent of each Letter of Credit Facilities on Issuer shall be required in connection with any such assignment (which consent shall not be unreasonably withheld or after the Closing Datedelayed), and
(vi) the Administrative Agent shall receive at the time of each such assignment, from the assigning or assignee Lender, the payment of a non-refundable assignment fee of $3,500; , and
(E) any , provided further, that such transfer or assignment shall require will not be effective until the prior written consent (such consent (except with Assignment Agreement in respect to assignments to competitors of the Borrower) not to be unreasonably withheld or delayed) of:
(1) the Borrower; provided that no consent of the Borrower shall be required for an assignment (x) thereof is recorded by a Lender to any Lender or a U.S. based-Affiliate of any Lender, (y) by a Lender to an Approved Fund and (z) during a Specified Event of Default (unless such assignment is to a Disqualified Lender). Notwithstanding anything in this Section 11.06 to the contrary, if the Borrower has not given the Administrative Agent written notice of its objection to an assignment of Loans within fifteen (15) Business Days after written notice of such assignment, on the Borrower shall be deemed to have consented to such assignment;
(2) the Administrative Agent; Lender Register maintained by it as provided that no consent of the Administrative Agent shall be required for an assignment of a Loan to a Lender, an Affiliate of a Lender or an Approved Fund; and
(3) each LC Issuer and Swing Line Lender; provided that no consent of an LC Issuer or Swing Line Lender shall be required for an assignment of a Loan to a Lender, an Affiliate of a Lender or an Approved Fund.
(ii) herein. To the extent of any assignment pursuant to this subsection (c), section 13.4(c) the assigning Lender shall be relieved of its obligations hereunder with respect to its assigned Commitments.
(iii) . At the time of each assignment pursuant to this subsection (csection 13.4(c) to a Person that person which is not already a Lender hereunderhereunder and which is not a United States person (as such term is defined in section 7701(a)(30) of the Code) for Federal income tax purposes, the respective assignee Lender shall provide to the Borrower Company and the Administrative Agent the applicable appropriate Internal Revenue Service Forms (and any necessary additional documentationand, if applicable a Section 5.4(b)(ii) Certificate) described in Section 3.02(esection 5.4(b).
(iv. To the extent that an assignment of all or any portion of a Lender's Commitment and related outstanding Obligations pursuant to this section 13.4(c) With respect to any Lenderwould, at the transfer of any Commitment time of such assignment, result in increased costs under section 2.9 from those being charged by the respective assigning Lender and the rights to the principal of, and interest on, any Loan made pursuant prior to such Commitment assignment, then the Borrowers shall not be effective until obligated to pay such transfer is recorded on increased costs (although the Lender Register maintained by the Administrative Agent (on behalf of and acting solely for this purpose as a non-fiduciary agent Borrowers shall be obligated to pay any other increased costs of the applicable Borrower) with respect to ownership of such Commitment and Loans, including type described above resulting from changes after the name and address date of the Lenders and the principal amount of the Loans (and stated interest thereonrespective assignment). Prior to such recordation, all amounts owing to the transferor with respect to such Commitment and Loans shall remain owing to the transferor. The registration of assignment Any Lender may at any time pledge or transfer of assign a security interest in all or part any portion of any Commitments and Loans shall be recorded by the Administrative Agent on the Lender Register only upon the acceptance by the Administrative Agent of a properly executed and delivered Assignment Agreement pursuant to this subsection (c). The entries in the Lender Register shall be conclusive absent manifest error, and the Borrower, the Administrative Agent and each Lender shall treat each person whose name is recorded in the Lender Register as a Lender hereunder for all purposes of this Agreement notwithstanding any notice to the contrary. The Lender Register shall be available for the inspection by the Borrower and any Lender (solely with respect to its own interest in any Loan or Commitment) at any reasonable time and from time to time upon reasonable prior notice.
(v) [Reserved].
(vi) Nothing in this Section 11.06(c) shall prevent or prohibit (A) any Lender that is a bank, trust company or other financial institution from pledging its Notes or Loans to secure obligations of such Lender, including without limitation any pledge or assignment to secure obligations to a Federal Reserve Bank Bank; provided that no such pledge or to any Person that extends credit to such Lender in support of borrowings made by assignment shall release -------- such Lender from such Federal Reserve Bank or such other Person, or (B) any Lender that is a trust, limited liability company, partnership or other investment company from pledging its Notes or Loans to a trustee or agent for the benefit of holders of certificates or debt securities issued by it. No such pledge, or any assignment pursuant to or in lieu of an enforcement of such a pledge, shall relieve the transferor Lender from its obligations hereunder. In connection with hereunder or substitute any assignment of rights and obligations of any Defaulting such pledgee or assignee for such Lender hereunder, no such assignment shall be effective unless and until, in addition to the other conditions thereto set forth herein, the parties to the assignment shall make such additional payments to the Administrative Agent in an aggregate amount sufficient, upon distribution thereof as appropriate (which may be outright payment, purchases by the assignee of participations or sub-participations, or other compensating actions, including funding, with the consent of the Borrower and the Administrative Agent, the applicable pro rata share of Loans previously requested but not funded by the Defaulting Lender, to each of which the applicable assignee and assignor hereby irrevocably consent), to (x) pay and satisfy in full all payment liabilities then owed by such Defaulting Lender to the Administrative Agent or any Lender hereunder (and interest accrued thereon) and (y) acquire (and fund as appropriate) its full pro rata share of all Loans and participations in Letters of Credit and Swing Loans in accordance with its Applicable Percentage. Notwithstanding the foregoing, in the event that any assignment of rights and obligations of any Defaulting Lender hereunder shall become effective under applicable law without compliance with the provisions of this paragraph, then the assignee of such interest shall be deemed to be a Defaulting Lender for all purposes of this Agreement until such compliance occursparty hereto.
Appears in 1 contract
Samples: Credit Agreement (Stoneridge Inc)
Assignments by Lenders. (i) Any Lender may assign all, or if less than all, a fixed portion, of its Loans, LC Participations, Swing Loan Participations Loans and/or Commitments and its rights and obligations hereunder to one or more Eligible Assignees, each of which shall become a party to this Agreement as a Lender by execution of an Assignment Agreement; provided, howeverfurther, that:
(A) except in the case of (x) an assignment of the entire remaining amount of the assigning Lender’s Loans and/or Commitments or Commitments, (y) an assignment to another Lender, an Affiliate of such Lender or an Approved Fund with respect to such LenderLender or (z) an assignment to Deutsche Bank AG Cayman Islands Branch (“DBCI”) made within 30 days of the Closing Date, the aggregate amount of the Commitment so assigned (which for this purpose includes the Loans outstanding thereunder) shall not be less than $2,500,000 (unless otherwise mutually agreed upon by the Borrower and the Administrative Agent)5,000,000;
(B) in the case of any assignment to an Eligible Assignee at the time of any such assignment the Lender Register shall be deemed modified to reflect the Commitments of such new Lender and of the existing Lenders;
(C) upon surrender of the old Notes, if any, upon request of the new Lender, new Notes will be issued, at the Borrower’s Borrowers’ expense, to such new Lender and to the assigning Lender, to the extent needed to reflect the revised Commitments;; and
(D) unless waived by the Administrative Agent, Agent and except in the case for any assignment made within 30 days of an assignment to another Lender, an Affiliate of such Lender or an Approved Fund with respect to such Lender, or any Lenders in connection with the initial syndication of the Credit Facilities on or after the Closing Date, the Administrative Agent shall receive at the time of each such assignment, from the assigning or assignee Lender, the payment of a non-refundable assignment fee of $3,500; and
(E) any such assignment shall require the prior written consent (such consent (except with respect to assignments to competitors of the Borrower) not to be unreasonably withheld or delayed) of:
(1) the Borrower; provided that no consent of the Borrower shall be required for an assignment (x) by a Lender to any Lender or a U.S. based-Affiliate of any Lender, (y) by a Lender to an Approved Fund and (z) during a Specified Event of Default (unless such assignment is to a Disqualified Lender). Notwithstanding anything in this Section 11.06 to the contrary, if the Borrower has not given the Administrative Agent written notice of its objection to an assignment of Loans within fifteen (15) Business Days after written notice of such assignment, the Borrower shall be deemed to have consented to such assignment;
(2) the Administrative Agent; provided that no consent of the Administrative Agent shall be required for an assignment of a Loan to a Lender, an Affiliate of a Lender or an Approved Fund; and
(3) each LC Issuer and Swing Line Lender; provided that no consent of an LC Issuer or Swing Line Lender shall be required for an assignment of a Loan to a Lender, an Affiliate of a Lender or an Approved Fund.
(ii) To the extent of any assignment pursuant to this subsection subpart (c), the assigning Lender shall be relieved of its obligations hereunder with respect to its assigned CommitmentsCommitments provided, that except to the extent otherwise expressly agreed by the affected parties, no assignment by a Defaulting Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender’s having been a Defaulting Lender.
(iii) At the time of each assignment pursuant to this subsection subpart (c) ), to a Person that is not already a Lender hereunderhereunder and that is not a U.S. Person for Federal income tax purposes, the respective assignee Lender shall provide to the Borrower Company and the Administrative Agent the applicable Internal Revenue Service Forms (and any necessary additional documentation) described in Section 3.02(e)3.03.
(iv) With respect to any Lender, the transfer of any Commitment of such Lender and the rights to the principal of, and interest on, any Loan made pursuant to such Commitment shall not be effective until such transfer is recorded on the Lender Register maintained by the Administrative Agent (on behalf of and acting solely for this purpose as a non-fiduciary agent of the applicable BorrowerBorrowers) with respect to ownership of such Commitment and Loans, including the name and address of the Lenders and the principal amount of the Loans (and stated interest thereon). Prior to such recordation, all amounts owing to the transferor with respect to such Commitment and Loans shall remain owing to the transferor. The registration of assignment or transfer of all or part of any Commitments and Loans shall be recorded by the Administrative Agent on the Lender Register only upon the acceptance by the Administrative Agent of a properly executed and delivered Assignment Agreement pursuant to this subsection subpart (c). The entries in the Lender Register shall be conclusive absent manifest error, and the Borrower, the Administrative Agent and each Lender shall treat each person whose name is recorded in the Lender Register as a Lender hereunder for all purposes of this Agreement notwithstanding any notice to the contrary. The Lender Register shall be available for the inspection by the Borrower and any Lender (solely with respect to its own interest in any Loan or Commitment) Company at any reasonable time and from time to time upon reasonable prior notice.
(v) [Reserved].
(vi) Nothing in this Section 11.06(c) shall prevent or prohibit (A) any Lender that is a bank, trust company or other financial institution from pledging its Notes or Loans to a Federal Reserve Bank or to any Person that extends credit to such Lender in support of borrowings made by such Lender from such Federal Reserve Bank or such other Person, or (B) any Lender that is a trust, limited liability company, partnership or other investment company from pledging its Notes or Loans to a trustee or agent for the benefit of holders of certificates or debt securities issued by it. No such pledge, or any assignment pursuant to or in lieu of an enforcement of such a pledge, shall relieve the transferor Lender from its obligations hereunder. .
(vi) In connection with any assignment of rights and obligations of any Defaulting Lender hereunder, no such assignment shall be effective unless and until, in addition to the other conditions thereto set forth herein, the parties to the assignment shall make such additional payments to the Administrative Agent in an aggregate amount sufficient, upon distribution thereof as appropriate (which may be outright payment, purchases by the assignee of participations or sub-participationssubparticipations, or other compensating actions, including funding, with the consent of the Borrower Company and the Administrative Agent, the applicable pro rata share of Loans previously requested but not funded by the Defaulting Lender, to each of which the applicable assignee and assignor hereby irrevocably consent), to (x) pay and satisfy in full all payment liabilities then owed by such Defaulting Lender to the Administrative Agent or any and each Lender hereunder (and interest accrued thereon) ), and (y) acquire (and fund as appropriate) its full pro rata share of all Loans and participations in Letters of Credit and Swing Loans in accordance with its Applicable Facility Percentage. Notwithstanding the foregoing, in the event that any assignment of rights and obligations of any Defaulting Lender hereunder shall become effective under applicable law without compliance with the provisions of this paragraph, then the assignee of such interest shall be deemed to be a Defaulting Lender for all purposes of this Agreement until such compliance occurs.
Appears in 1 contract
Samples: Credit Agreement
Assignments by Lenders. (i) Any Lender may assign all, or if less than all, a fixed portion, of its Loans, LC Participations, Swing Loan Participations and/or Commitments and its rights and obligations hereunder to one or more Eligible Assignees, each of which shall become a party to this Agreement as a Lender by execution of an Assignment Agreement; provided, however, that:
(A) except in the case of (x) an assignment of the entire remaining amount of the assigning Lender’s Loans and/or Commitments or (y) an assignment to another Lender, an Affiliate of such Lender or an Approved Fund with respect to such Lender, the aggregate amount of the Commitment so assigned (which for this purpose includes the Loans outstanding thereunder) shall not be less than $2,500,000 1,000,000, in the case of Term Loans or $2,000,000, in the case of Revolving Loans and Revolving Commitments (unless otherwise mutually agreed upon by the Parent Borrower and the Administrative Agent);
(B) in the case of any assignment to an Eligible Assignee at the time of any such assignment the Lender Register shall be deemed modified to reflect the Commitments of such new Lender and of the existing Lenders;
(C) upon surrender of the old Notes, if any, upon request of the new Lender, new Notes will be issued, at the Parent Borrower’s expense, to such new Lender and to the assigning Lender, to the extent needed to reflect the revised Commitments;
(D) unless waived by the Administrative Agent, except in the case of an assignment to another Lender, an Affiliate of such Lender or an Approved Fund with respect to such Lender, or any Lenders in connection with the initial syndication of the Credit Facilities on or after the Closing Date, the Administrative Agent shall receive at the time of each such assignment, from the assigning or assignee Lender, the payment of a non-refundable assignment fee of $3,500; and;
(E) any such assignment shall require the prior written consent (such consent (except with respect to assignments to competitors of the Borrower) not to be unreasonably withheld or delayed) of:
(1) the Borrower; provided that no consent of the Parent Borrower shall be required for an assignment (x) by a Lender to any Lender or a U.S. based-Affiliate of any Lender, (y) by a Lender to an Approved Fund and (z) during a Specified Event of Default (unless such assignment is to a Disqualified Lender). Notwithstanding anything in this Section 11.06 to the contrary, if the Borrower has not given the Administrative Agent written notice of its objection to an assignment of Loans within fifteen (15) Business Days after written notice of such assignment, the Borrower shall will be deemed to have consented given the consent required in the definition of “Eligible Assignee” to such assignment;
assignment if Parent Borrower has not responded in writing within ten (210) the Administrative Agent; provided that no consent of the Administrative Agent shall be required for an assignment Business Days of a Loan to a Lender, an Affiliate of a Lender or an Approved Fund; and
(3) each LC Issuer and Swing Line Lender; provided that no consent of an LC Issuer or Swing Line Lender shall be required request for an assignment of a Loan to a Lender, an Affiliate of a Lender or an Approved Fundconsent.
(ii) To the extent of any assignment pursuant to this subsection subpart (c), the assigning Lender shall be relieved of its obligations hereunder with respect to its assigned Commitments.
(iii) At the time of each assignment pursuant to this subsection subpart (c) to a Person that is not already a Lender hereunder, the respective assignee Lender shall provide to the Parent Borrower and the Administrative Agent the applicable Internal Revenue Service Forms (and any necessary additional documentation) described in Section 3.02(e3.02(g).
(iv) With respect to any Lender, the transfer of any Commitment of such Lender and the rights to the principal of, and interest on, any Loan made pursuant to such Commitment shall not be effective until such transfer is recorded on the Lender Register maintained by the Administrative Agent (on behalf of and acting solely for this purpose as a non-fiduciary agent of the applicable BorrowerBorrowers) with respect to ownership of such Commitment and Loans, including the name and address of the Lenders and the principal amount of the Loans (and stated interest thereon). Prior to such recordation, all amounts owing to the transferor with respect to such Commitment and Loans shall remain owing to the transferor. The registration of assignment or transfer of all or part of any Commitments and Loans shall be recorded by the Administrative Agent on the Lender Register only upon the acceptance by the Administrative Agent of a properly executed and delivered Assignment Agreement pursuant to this subsection subpart (c). The entries in the Lender Register shall be conclusive absent manifest error, and the each Borrower, the Administrative Agent and each Lender shall treat each person whose name is recorded in the Lender Register as a Lender hereunder for all purposes of this Agreement notwithstanding any notice to the contrary. The Lender Register shall be available for the inspection by the Parent Borrower and any Lender (solely with respect to its own interest in any Loan or Commitment) at any reasonable time and from time to time upon reasonable prior notice.
(v) [Reserved].
(vi) Nothing in this Section 11.06(c10.06(c) shall prevent or prohibit (A) any Lender that is a bank, trust company or other financial institution from pledging its Notes or Loans to a Federal Reserve Bank or to any Person that extends credit to such Lender in support of borrowings made by such Lender from such Federal Reserve Bank or such other Person, or (B) any Lender that is a trust, limited liability company, partnership or other investment company from pledging its Notes or Loans to a trustee or agent for the benefit of holders of certificates or debt securities issued by it. No such pledge, or any assignment pursuant to or in lieu of an enforcement of such a pledge, shall relieve the transferor Lender from its obligations hereunder. In connection with any assignment of rights and obligations of any Defaulting Lender hereunder, no such assignment shall be effective unless and until, in addition to the other conditions thereto set forth herein, the parties to the assignment shall make such additional payments to the Administrative Agent in an aggregate amount sufficient, upon distribution thereof as appropriate (which may be outright payment, purchases by the assignee of participations or sub-participationssubparticipations, or other compensating actions, including funding, with the consent of the Parent Borrower and the Administrative Agent, the applicable pro rata share of Loans previously requested but not funded by the Defaulting Lender, to each of which the applicable assignee and assignor hereby irrevocably consent), to (x) pay and satisfy in full all payment liabilities then owed by such Defaulting Lender to the Administrative Agent or any Lender hereunder (and interest accrued thereon) and (y) acquire (and fund as appropriate) its full pro rata share of all Loans and participations in Letters of Credit and Swing Loans in accordance with its Applicable Revolving Facility Percentage. Notwithstanding the foregoing, in the event that any assignment of rights and obligations of any Defaulting Lender hereunder shall become effective under applicable law without compliance with the provisions of this paragraph, then the assignee of such interest shall be deemed to be a Defaulting Lender for all purposes of this Agreement until such compliance occurs.
Appears in 1 contract
Samples: Credit Agreement (PGT, Inc.)
Assignments by Lenders. (i) Any Lender may assign all, to one or if less than all, more banks or other financial institutions (including funds) all or a fixed portion, portion of its Loans, LC Participations, Swing Loan Participations and/or Commitments and its rights and obligations hereunder to one or more Eligible Assignees, each of which shall become a party to under this Agreement as (including all or a Lender by execution portion of an Assignment Agreementits Commitments and the Loans at the time owing to it); provided, however, PROVIDED that:
(Ai) except in the case of an assignment to a Lender or an Affiliate of a Lender or an Approved Fund, each of the Borrower and the Administrative Agent (xand, in the case of an assignment of all or a portion of a Revolving Credit Commitment or any Revolving Credit Lender's obligations in respect of its LC Exposure, each Issuing Bank) must give their prior written consent to such assignment (which consent shall not be unreasonably withheld or delayed) and, in the case of any such assignment as to which no consent of the Administrative Agent is required, the Administrative Agent shall have acknowledged receipt of such assignment,
(ii) except in the case of an assignment to a Lender or an Affiliate of a Lender or an Approved Fund or an assignment of the entire remaining amount of the assigning Lender’s Loans and/or 's Commitments, the amount of the Commitments or of the assigning Lender subject to each such assignment (y) an assignment to another Lender, an Affiliate determined as of such Lender or an Approved Fund the date the Assignment and Acceptance with respect to such Lender, assignment is delivered to the aggregate amount of the Commitment so assigned (which for this purpose includes the Loans outstanding thereunderAdministrative Agent) shall not be less than $2,500,000 (1,000,000 unless otherwise mutually agreed upon by each of the Borrower and the Administrative Agent);Agent otherwise consents,
(Biii) each partial assignment of rights with respect to any Class of Loans and/or Commitments 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 such Class (including, in the case of any assignment to an Eligible Assignee at the time of any such assignment the Lender Register shall be deemed modified to reflect the Commitments Revolving Credit Commitments, of such new Lender and a proportionate part of the existing Lenders;
(C) upon surrender of the old Notes, if any, upon request of the new Lender, new Notes will be issued, at the Borrower’s expense, to such new Lender and to the assigning Lender's LC Exposure), to the extent needed to reflect the revised Commitments;CREDIT AGREEMENT 110 - 104 -
(Div) unless waived by the Administrative Agent, except in the case of an parties to each assignment shall execute and deliver to another Lender, an Affiliate of such Lender or an Approved Fund with respect to such Lender, or any Lenders in connection with the initial syndication of the Credit Facilities on or after the Closing Date, the Administrative Agent shall receive at (with sufficient copies for the time of each such assignment, from the assigning or assignee Lenderassignor, the payment of assignee and the Borrower) an Assignment and Acceptance, together with a non-refundable assignment processing and recordation fee of $3,500; , and
(E) any such assignment shall require the prior written consent (such consent (except with respect to assignments to competitors of the Borrower) not to be unreasonably withheld or delayed) of:
(1v) the Borrowerassignee, if it shall not be a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire; provided PROVIDED, FURTHER that no any consent of the Borrower otherwise required under this paragraph shall not be required for if an assignment (x) by a Lender to any Lender or a U.S. based-Affiliate of any Lender, (y) by a Lender to an Approved Fund and (z) during a Specified Event of Default under clause (unless such assignment is to a Disqualified Lender). Notwithstanding anything in this Section 11.06 to the contrary, if the Borrower has not given the Administrative Agent written notice of its objection to an assignment of Loans within fifteen (15h) Business Days after written notice of such assignment, the Borrower shall be deemed to have consented to such assignment;
(2) the Administrative Agent; provided that no consent of the Administrative Agent shall be required for an assignment of a Loan to a Lender, an Affiliate of a Lender or an Approved Fund; and
(3) each LC Issuer and Swing Line Lender; provided that no consent of an LC Issuer or Swing Line Lender shall be required for an assignment of a Loan to a Lender, an Affiliate of a Lender or an Approved Fund.
(ii) To the extent of any assignment pursuant to this subsection (c), the assigning Lender shall be relieved of its obligations hereunder with respect to its assigned Commitments.
(iii) At the time of each assignment pursuant to this subsection (c) to a Person that is not already a Lender hereunder, the respective assignee Lender shall provide to the Borrower and the Administrative Agent the applicable Internal Revenue Service Forms (and any necessary additional documentation) described in Section 3.02(e).
(iv) With respect to any Lender, the transfer of any Commitment of such Lender and the rights to the principal of, and interest on, any Loan made pursuant to such Commitment shall not be effective until such transfer is recorded on the Lender Register maintained by the Administrative Agent (on behalf of and acting solely for this purpose as a non-fiduciary agent of the applicable Borrower) with respect to ownership of such Commitment and Loans, including the name and address of the Lenders and the principal amount of the Loans (and stated interest thereon). Prior to such recordation, all amounts owing to the transferor with respect to such Commitment and Loans shall remain owing to the transferor. The registration of assignment or transfer of all or part of any Commitments and Loans shall be recorded by the Administrative Agent on the Lender Register only upon the acceptance by the Administrative Agent of a properly executed and delivered Assignment Agreement pursuant to this subsection (c). The entries in the Lender Register shall be conclusive absent manifest error, and the Borrower, the Administrative Agent and each Lender shall treat each person whose name is recorded in the Lender Register as a Lender hereunder for all purposes of this Agreement notwithstanding any notice to the contrary. The Lender Register shall be available for the inspection by the Borrower and any Lender (solely with respect to its own interest in any Loan or Commitment) at any reasonable time and from time to time upon reasonable prior notice.
(v) [Reserved].
(vi) Nothing in this Section 11.06(c) shall prevent or prohibit (A) any Lender that is a bank, trust company or other financial institution from pledging its Notes or Loans to a Federal Reserve Bank or to any Person that extends credit to such Lender in support of borrowings made by such Lender from such Federal Reserve Bank or such other Person, or (Bi) any Lender that of Article VIII has occurred and is a trust, limited liability company, partnership or other investment company from pledging its Notes or Loans to a trustee or agent for the benefit of holders of certificates or debt securities issued by it. No such pledge, or any assignment pursuant to or in lieu of an enforcement of such a pledge, shall relieve the transferor Lender from its obligations hereunder. In connection with any assignment of rights and obligations of any Defaulting Lender hereunder, no such assignment shall be effective unless and until, in addition to the other conditions thereto set forth herein, the parties to the assignment shall make such additional payments to the Administrative Agent in an aggregate amount sufficient, upon distribution thereof as appropriate (which may be outright payment, purchases by the assignee of participations or sub-participations, or other compensating actions, including funding, with the consent of the Borrower and the Administrative Agent, the applicable pro rata share of Loans previously requested but not funded by the Defaulting Lender, to each of which the applicable assignee and assignor hereby irrevocably consent), to (x) pay and satisfy in full all payment liabilities then owed by such Defaulting Lender to the Administrative Agent or any Lender hereunder (and interest accrued thereon) and (y) acquire (and fund as appropriate) its full pro rata share of all Loans and participations in Letters of Credit and Swing Loans in accordance with its Applicable Percentage. Notwithstanding the foregoing, in the event that any assignment of rights and obligations of any Defaulting Lender hereunder shall become effective under applicable law without compliance with the provisions of this paragraph, then the assignee of such interest shall be deemed to be a Defaulting Lender for all purposes of this Agreement until such compliance occurscontinuing.
Appears in 1 contract
Assignments by Lenders. (i) Any Lender may assign all, or if less than all, a fixed portion, of its Loans, LC Participations, Swing Loan Participations and/or Commitments and its rights and obligations hereunder to one or more Eligible Assignees, each of which shall become a party to this Agreement as a Lender by execution of an Assignment Agreement; provided, however, that:
(A) except in the case of (x) an assignment of the entire remaining amount of the assigning Lender’s 's Loans and/or Commitments or (y) an assignment to another Lender, an Affiliate of such Lender or an Approved Fund with respect to such Lender, the aggregate amount of the Commitment so assigned (which for this purpose includes the Loans outstanding thereunder) shall not be less than $2,500,000 (unless otherwise mutually agreed upon by the Borrower and the Administrative Agent)1,000,000;
(B) in the case of any assignment to an Eligible Assignee at the time of any such assignment the Lender Register shall be deemed modified to reflect the Commitments of such new Lender and of the existing Lenders;
(C) upon surrender of the old Notes, if any, upon request of the new Lender, new Notes will be issued, at the Borrower’s 's expense, to such new Lender and to the assigning Lender, to the extent needed to reflect the revised Commitments;; and
(D) unless waived by the Administrative Agent, except in the case of an assignment to another Lender, an Affiliate of such Lender or an Approved Fund with respect to such Lender, or any Lenders in connection with the initial syndication of the Credit Facilities on or after the Closing Date, the Administrative Agent shall receive at the time of each such assignment, from the assigning or assignee Lender, the payment of a non-refundable assignment fee of $3,500; and
(E) any such assignment shall require the prior written consent (such consent (except with respect to assignments to competitors of the Borrower) not to be unreasonably withheld or delayed) of:
(1) the Borrower; provided that no consent of the Borrower shall be required for an assignment (x) by a Lender to any Lender or a U.S. based-Affiliate of any Lender, (y) by a Lender to an Approved Fund and (z) during a Specified Event of Default (unless such assignment is to a Disqualified Lender). Notwithstanding anything in this Section 11.06 to the contrary, if the Borrower has not given the Administrative Agent written notice of its objection to an assignment of Loans within fifteen (15) Business Days after written notice of such assignment, the Borrower shall be deemed to have consented to such assignment;
(2) the Administrative Agent; provided that no consent of the Administrative Agent shall be required for an assignment of a Loan to a Lender, an Affiliate of a Lender or an Approved Fund; and
(3) each LC Issuer and Swing Line Lender; provided that no consent of an LC Issuer or Swing Line Lender shall be required for an assignment of a Loan to a Lender, an Affiliate of a Lender or an Approved Fund.
(ii) To the extent of any assignment pursuant to this subsection subpart (c), the assigning Lender shall be relieved of its obligations hereunder with respect to its assigned Commitments.
(iii) At the time of each assignment pursuant to this subsection subpart (c) ), to a Person that is not already a Lender hereunderhereunder and that is not a United States Person (as such term is defined in Section 7701(a)(30) of the Code) for Federal income tax purposes, the respective assignee Lender shall provide to the Borrower and the Administrative Agent the applicable Internal Revenue Service Forms (and any necessary additional documentation) described in Section 3.02(e3.03(b).
(iv) With respect to any Lender, the transfer of any Commitment of such Lender and the rights to the principal of, and interest on, any Loan made pursuant to such Commitment shall not be effective until such transfer is recorded on the Lender Register maintained by the Administrative Agent (on behalf of and acting solely for this purpose as a non-fiduciary agent of the applicable Borrower) with respect to ownership of such Commitment and Loans, including the name Loans and address of the Lenders and the principal amount of the Loans (and stated interest thereon). Prior prior to such recordation, recordation all amounts owing to the transferor with respect to such Commitment and Loans shall remain owing to the transferor. The registration of assignment or transfer of all or part of any Commitments and Loans shall be recorded by the Administrative Agent on the Lender Register only upon the acceptance by the Administrative Agent of a properly executed and delivered Assignment Agreement pursuant to this subsection subpart (c). The entries in the Lender Register shall be conclusive absent manifest error, and the Borrower, the Administrative Agent and each Lender shall treat each person whose name is recorded in the Lender Register as a Lender hereunder for all purposes of this Agreement notwithstanding any notice to the contrary. The Lender Register shall be available for the inspection by the Borrower and any Lender (solely with respect to its own interest in any Loan or Commitment) at any reasonable time and from time to time upon reasonable prior notice.
(v) [Reserved].
(vi) Nothing in this Section 11.06(c) shall prevent or prohibit (A) any Lender that is a bank, trust company or other financial institution from pledging its Notes or Loans to a Federal Reserve Bank or to any Person that extends credit to such Lender in support of borrowings made by such Lender from such Federal Reserve Bank or such other PersonBank, or (B) any Lender that is a trust, limited liability company, partnership or other investment company from pledging its Notes or Loans to a trustee or agent for the benefit of holders of certificates or debt securities issued by it. No such pledge, or any assignment pursuant to or in lieu of an enforcement of such a pledge, shall relieve the transferor Lender from its obligations hereunder. In connection with any assignment of rights and obligations of any Defaulting Lender hereunder, no such assignment shall be effective unless and until, in addition to the other conditions thereto set forth herein, the parties to the assignment shall make such additional payments to the Administrative Agent in an aggregate amount sufficient, upon distribution thereof as appropriate (which may be outright payment, purchases by the assignee of participations or sub-participations, or other compensating actions, including funding, with the consent of the Borrower and the Administrative Agent, the applicable pro rata share of Loans previously requested but not funded by the Defaulting Lender, to each of which the applicable assignee and assignor hereby irrevocably consent), to (x) pay and satisfy in full all payment liabilities then owed by such Defaulting Lender to the Administrative Agent or any Lender hereunder (and interest accrued thereon) and (y) acquire (and fund as appropriate) its full pro rata share of all Loans and participations in Letters of Credit and Swing Loans in accordance with its Applicable Percentage. Notwithstanding the foregoing, in the event that any assignment of rights and obligations of any Defaulting Lender hereunder shall become effective under applicable law without compliance with the provisions of this paragraph, then the assignee of such interest shall be deemed to be a Defaulting Lender for all purposes of this Agreement until such compliance occurs.
Appears in 1 contract
Assignments by Lenders. (i) Any Lender may assign all, to one or if less than all, more assignees all or a fixed portion, portion of its Loans, LC Participations, Swing Loan Participations and/or Commitments and its rights and obligations hereunder to one or more Eligible Assignees, each of which shall become a party to under this Agreement as (including all or a Lender by execution portion of an Assignment Agreementits Commitment and the Loans at the time owing to it); provided, however, PROVIDED that:
(Ai) except in the case of an assignment to a Lender or an Affiliate of a Lender, each of the Borrower and the Administrative Agent (xand, in the case of an assignment of all or a portion of a Commitment or any Lender's obligations in respect of its LC Exposure, the Issuing Lender) must give their prior written consent to such assignment (which consent shall not be unreasonably withheld),
(ii) except in the case of an assignment to a Lender or an Affiliate of a Lender, or an assignment of the entire remaining amount of the assigning Lender’s Loans and/or Commitments 's Commitment, unless each of the Borrower and the Administrative Agent otherwise consent, which consent may be given or withheld in sole discretion of each such party, the amount of the Commitment of the assigning Lender subject to each such assignment (y) an assignment to another Lender, an Affiliate determined as of such Lender or an Approved Fund the date the Assignment and Acceptance with respect to such Lender, assignment is delivered to the aggregate amount of the Commitment so assigned (which for this purpose includes the Loans outstanding thereunderAdministrative Agent) shall not be less than Ten Million Dollars ($2,500,000 (unless otherwise mutually agreed upon by the Borrower and the Administrative Agent10,000,000);,
(Biii) in the case of any each partial assignment to an Eligible Assignee at the time of any such assignment the Lender Register shall be deemed modified to reflect the Commitments of such new Lender and of the existing Lenders;
(C) upon surrender of the old Notes, if any, upon request of the new Lender, new Notes will be issued, at the Borrower’s expense, to such new Lender and to the assigning Lender, to the extent needed to reflect the revised Commitments;
(D) unless waived by the Administrative Agent, except in the case of an assignment to another Lender, an Affiliate of such Lender or an Approved Fund with respect to such Lender, or any Lenders in connection with the initial syndication of the Credit Facilities on or after the Closing Date, the Administrative Agent shall receive at the time of each such assignment, from the assigning or assignee Lender, the payment of a non-refundable assignment fee of $3,500; and
(E) any such assignment shall require the prior written consent (such consent (except with respect to assignments to competitors of the Borrower) not to be unreasonably withheld or delayed) of:
(1) the Borrower; provided that no consent of the Borrower shall be required for an assignment (x) by a Lender to any Lender or a U.S. based-Affiliate of any Lender, (y) by a Lender to an Approved Fund and (z) during a Specified Event of Default (unless such assignment is to a Disqualified Lender). Notwithstanding anything in this Section 11.06 to the contrary, if the Borrower has not given the Administrative Agent written notice of its objection to an assignment of Loans within fifteen (15) Business Days after written notice of such assignment, the Borrower shall be deemed to have consented to such assignment;
(2) the Administrative Agent; provided that no consent of the Administrative Agent shall be required for made as an assignment of a proportionate part of all the assigning Lender's Term Loan to a Lender, an Affiliate Commitment and Revolving Credit Commitment and of a Lender or an Approved Fund; and
(3) each LC Issuer and Swing Line Lender; provided that no consent proportionate part of an LC Issuer or Swing Line Lender shall be required for an assignment of a Loan to a Lender, an Affiliate of a Lender or an Approved Fund.
(ii) To the extent of any assignment pursuant to this subsection (c), the assigning Lender shall be relieved of its Lender's rights and obligations hereunder with respect to its assigned Commitments.
(iii) At the time of each assignment pursuant to under this subsection (c) to a Person that is not already a Lender hereunder, the respective assignee Lender shall provide to the Borrower and the Administrative Agent the applicable Internal Revenue Service Forms (and any necessary additional documentation) described in Section 3.02(e).Agreement,
(iv) With respect the parties to any Lendereach assignment shall execute and deliver to the Administrative Agent an Assignment and Acceptance, together with a processing and recordation fee of Three Thousand Five Hundred Dollars ($3,500) payable by either or both of the transfer of any Commitment of such assigning Lender and the rights assignee as agreed to the principal of, by such parties (which processing and interest on, any Loan made pursuant to such Commitment recordation shall not be effective until such transfer is recorded on the Lender Register maintained by the Administrative Agent (on behalf of and acting solely for this purpose as a non-fiduciary agent of the applicable Borrower) with respect to ownership of such Commitment and Loanschargeable to, including the name and address of the Lenders and the principal amount of the Loans (and stated interest thereon). Prior to such recordationassessable against, all amounts owing to the transferor with respect to such Commitment and Loans shall remain owing to the transferor. The registration of assignment or transfer of all or part of any Commitments and Loans shall be recorded by the Administrative Agent on the Lender Register only upon the acceptance by the Administrative Agent of a properly executed and delivered Assignment Agreement pursuant to this subsection (c). The entries in the Lender Register shall be conclusive absent manifest errorotherwise imposed upon, and the Borrower), the Administrative Agent and each Lender shall treat each person whose name is recorded in the Lender Register as a Lender hereunder for all purposes of this Agreement notwithstanding any notice to the contrary. The Lender Register shall be available for the inspection by the Borrower and any Lender (solely with respect to its own interest in any Loan or Commitment) at any reasonable time and from time to time upon reasonable prior notice.and
(v) [Reserved].
(vi) Nothing in this Section 11.06(c) the assignee, if it shall prevent or prohibit (A) any Lender that is not be a bank, trust company or other financial institution from pledging its Notes or Loans to a Federal Reserve Bank or to any Person that extends credit to such Lender in support of borrowings made by such Lender from such Federal Reserve Bank or such other Person, or (B) any Lender that is a trust, limited liability company, partnership or other investment company from pledging its Notes or Loans to a trustee or agent for the benefit of holders of certificates or debt securities issued by it. No such pledge, or any assignment pursuant to or in lieu of an enforcement of such a pledgeLender, shall relieve the transferor Lender from its obligations hereunder. In connection with any assignment of rights and obligations of any Defaulting Lender hereunder, no such assignment shall be effective unless and until, in addition to the other conditions thereto set forth herein, the parties to the assignment shall make such additional payments deliver to the Administrative Agent in an aggregate amount sufficient, upon distribution thereof as appropriate (which may be outright payment, purchases by the assignee of participations or sub-participations, or other compensating actions, including funding, with the consent of the Borrower and the Administrative Agent, the applicable pro rata share of Loans previously requested but not funded by the Defaulting Lender, to each of which the applicable assignee and assignor hereby irrevocably consent), to (x) pay and satisfy in full all payment liabilities then owed by such Defaulting Lender to the Administrative Agent or any Lender hereunder (and interest accrued thereon) and (y) acquire (and fund as appropriate) its full pro rata share of all Loans and participations in Letters of Credit and Swing Loans in accordance with its Applicable Percentage. Notwithstanding the foregoing, in the event that any assignment of rights and obligations of any Defaulting Lender hereunder shall become effective under applicable law without compliance with the provisions of this paragraph, then the assignee of such interest shall be deemed to be a Defaulting Lender for all purposes of this Agreement until such compliance occurs.Questionnaire;
Appears in 1 contract
Samples: Credit Agreement (Wilson Greatbatch Technologies Inc)
Assignments by Lenders. (i) Any Lender may assign all, or if less than all, a fixed portion, of its Loans, LC Participations, Swing Term Loan Participations and/or Commitments and its rights and obligations hereunder to one or more Eligible AssigneesAssignees (so long as after giving effect to each such assignment, such Eligible Assignee’s portion of the Term Loan outstanding shall not be less than $5,000,000), each of which shall become a party to this Agreement as a Lender by execution of an Assignment Agreement; provided, however, provided that:
(Ai) except in the case of (x) of an assignment of the entire remaining amount of the assigning Lender’s Loans and/or Commitments portion of the Term Loan or (y) an assignment to another Lender, an Affiliate of such Lender or an Approved Fund with respect to such Lender, the aggregate amount of the Commitment so assigned (which for this purpose includes portion of the Loans Term Loan outstanding thereunder) hereunder owed to such Lender, Affiliate and/or Approved Fund, shall not be less than $2,500,000 (unless otherwise mutually agreed upon by the Borrower and the Administrative Agent);5,000,000,
(Bii) in the case of any assignment to an Eligible Assignee at the time of any such assignment assignment, the Lender Register shall be deemed modified to reflect the Commitments allocation of the Term Loan among such new Lender and of the existing Lenders;,
(Ciii) upon surrender of the old Notes, if any, upon request of the new Lender, new Notes will be issued, at the Borrower’s Borrowers’ expense, to such new Lender and to the assigning Lender, such new Notes to be in conformity with the requirements of Section (with appropriate modifications) to the extent needed to reflect the revised Commitments;allocation of the Term Loan,
(Div) unless waived by the Administrative Agent, except in the case of an assignment to another Lender, an Affiliate of such Lender or an Approved Fund with respect to such Lender, or any Lenders in connection with the initial syndication of the Credit Facilities on or after the Closing Date, the Administrative Agent shall receive at the time of each such assignment, from the assigning or assignee Lender, the payment of a non-refundable assignment fee of $3,500; , and
(E) any , provided further, that such transfer or assignment shall require will not be effective until the prior written consent (such consent (except with Assignment Agreement in respect to assignments to competitors of the Borrower) not to be unreasonably withheld or delayed) of:
(1) the Borrower; provided that no consent of the Borrower shall be required for an assignment (x) thereof is recorded by a Lender to any Lender or a U.S. based-Affiliate of any Lender, (y) by a Lender to an Approved Fund and (z) during a Specified Event of Default (unless such assignment is to a Disqualified Lender). Notwithstanding anything in this Section 11.06 to the contrary, if the Borrower has not given the Administrative Agent written notice of its objection to an assignment of Loans within fifteen (15) Business Days after written notice of such assignment, on the Borrower shall be deemed to have consented to such assignment;
(2) the Administrative Agent; Lender Register maintained by it as provided that no consent of the Administrative Agent shall be required for an assignment of a Loan to a Lender, an Affiliate of a Lender or an Approved Fund; and
(3) each LC Issuer and Swing Line Lender; provided that no consent of an LC Issuer or Swing Line Lender shall be required for an assignment of a Loan to a Lender, an Affiliate of a Lender or an Approved Fund.
(ii) herein. To the extent of any assignment pursuant to this subsection (c), Section the assigning Lender shall be relieved of its obligations hereunder with respect to its assigned Commitments.
(iii) portion of the Term Loan. At the time of each assignment pursuant to this subsection (c) Section to a Person person that is not already a Lender hereunderhereunder and that is not a United States person (as such term is defined in Section 7701(a)(30) of the Code) for Federal income tax purposes, the respective assignee Lender shall provide to the Borrower and the Administrative Agent the applicable appropriate Internal Revenue Service Forms (and any necessary additional documentationand, if applicable an Exemption Certificate) described in Section 3.02(e).
(iv) With respect . To the extent that an assignment of all or any portion of a Lender’s outstanding Obligations pursuant to any Lenderthis Section would, at the transfer of any Commitment time of such assignment, result in increased costs under Section from those being charged by the respective assigning Lender and the rights to the principal of, and interest on, any Loan made pursuant prior to such Commitment assignment, then the Borrowers shall not be effective until obligated to pay such transfer is recorded on increased costs (although the Lender Register maintained by the Administrative Agent (on behalf of and acting solely for this purpose as a non-fiduciary agent Borrowers shall be obligated to pay any other increased costs of the applicable Borrower) with respect to ownership of such Commitment and Loans, including type described above resulting from changes after the name and address date of the Lenders and the principal amount of the Loans (and stated interest thereonrespective assignment). Prior to such recordation, all amounts owing to the transferor with respect to such Commitment and Loans shall remain owing to the transferor. The registration of assignment or transfer of all or part of any Commitments and Loans shall be recorded by the Administrative Agent on the Lender Register only upon the acceptance by the Administrative Agent of a properly executed and delivered Assignment Agreement pursuant to this subsection (c). The entries in the Lender Register shall be conclusive absent manifest error, and the Borrower, the Administrative Agent and each Lender shall treat each person whose name is recorded in the Lender Register as a Lender hereunder for all purposes of this Agreement notwithstanding any notice to the contrary. The Lender Register shall be available for the inspection by the Borrower and any Lender (solely with respect to its own interest in any Loan or Commitment) at any reasonable time and from time to time upon reasonable prior notice.
(v) [Reserved].
(vi) Nothing in this Section 11.06(c) shall prevent or prohibit (Ai) any Lender that is a bank, trust company or other financial institution from pledging its Notes Note or Loans its portion of the Term Loan to a Federal Reserve Bank or to any Person that extends credit to such Lender in support of borrowings made by such Lender from such Federal Reserve Bank or such other PersonBank, or (Bii) any Lender that is a trust, limited liability company, partnership or other investment company from pledging its Notes Note or Loans its portion of the Term Loan to a trustee or agent for the benefit of holders of certificates or debt securities issued by it. No such pledge, or any assignment pursuant to or in lieu of an enforcement of such a pledge, shall relieve the transferor Lender from its obligations hereunder. In connection with any assignment of rights and obligations of any Defaulting Lender hereunder, no such assignment shall be effective unless and until, in addition to the other conditions thereto set forth herein, the parties to the assignment shall make such additional payments to the Administrative Agent in an aggregate amount sufficient, upon distribution thereof as appropriate (which may be outright payment, purchases by the assignee of participations or sub-participations, or other compensating actions, including funding, with the consent of the Borrower and the Administrative Agent, the applicable pro rata share of Loans previously requested but not funded by the Defaulting Lender, to each of which the applicable assignee and assignor hereby irrevocably consent), to (x) pay and satisfy in full all payment liabilities then owed by such Defaulting Lender to the Administrative Agent or any Lender hereunder (and interest accrued thereon) and (y) acquire (and fund as appropriate) its full pro rata share of all Loans and participations in Letters of Credit and Swing Loans in accordance with its Applicable Percentage. Notwithstanding the foregoing, in the event that any assignment of rights and obligations of any Defaulting Lender hereunder shall become effective under applicable law without compliance with the provisions of this paragraph, then the assignee of such interest shall be deemed to be a Defaulting Lender for all purposes of this Agreement until such compliance occurs.
Appears in 1 contract
Assignments by Lenders. (i) Any Lender may assign all, or if less than all, a fixed portion, of its Loans, LC Participations, Swing Loan Participations and/or Commitments and its rights and obligations hereunder to one or more Eligible Assignees, each of which shall become a party to this Agreement as a Lender by execution of an Assignment Agreement; provided, however, that:
(A) except in the case of (x) an assignment of the entire remaining amount of the assigning Lender’s Loans and/or Commitments or (y) an assignment to another Lender, an Affiliate of such Lender or an Approved Fund with respect to such Lender, the aggregate amount of the Commitment so assigned (which for this purpose includes the Loans outstanding thereunder) shall not be less than $2,500,000 1,000,000, in the case of Term Loans or $2,000,000, in the case of Revolving Loans and Revolving Commitments (unless otherwise mutually agreed upon by the Parent Borrower and the Administrative Agent);
(B) in the case of any assignment to an Eligible Assignee at the time of any such assignment the Lender Register shall be deemed modified to reflect the Commitments of such new Lender and of the existing Lenders;
(C) upon surrender of the old Notes, if any, upon request of the new Lender, new Notes will be issued, at the Parent Borrower’s expense, to such new Lender and to the assigning Lender, to the extent needed to reflect the revised Commitments;
(D) unless waived by the Administrative Agent, except in the case of an assignment to another Lender, an Affiliate of such Lender or an Approved Fund with respect to such Lender, or any Lenders in connection with the initial syndication of the Credit Facilities on or after the Closing Date, the Administrative Agent shall receive at the time of each such assignment, from the assigning or assignee Lender, the payment of a non-refundable assignment fee of $3,500; and
(E) any such assignment shall require the prior written consent (such consent (except with respect to assignments to competitors of the Borrower) not to be unreasonably withheld or delayed) of:
(1) the Borrower; provided that no consent of the Parent Borrower shall be required for an assignment (x) by a Lender to any Lender or a U.S. based-Affiliate of any Lender, (y) by a Lender to an Approved Fund and (z) during a Specified Event of Default (unless such assignment is to a Disqualified Lender). Notwithstanding anything in this Section 11.06 to the contrary, if the Borrower has not given the Administrative Agent written notice of its objection to an assignment of Loans within fifteen (15) Business Days after written notice of such assignment, the Borrower shall will be deemed to have consented given the consent required in the definition of “Eligible Assignee” to such assignment;
assignment if Parent Borrower has not responded in writing within ten (210) the Administrative Agent; provided that no consent of the Administrative Agent shall be required for an assignment Business Days of a Loan to a Lender, an Affiliate of a Lender or an Approved Fund; and
(3) each LC Issuer and Swing Line Lender; provided that no consent of an LC Issuer or Swing Line Lender shall be required request for an assignment of a Loan to a Lender, an Affiliate of a Lender or an Approved Fundconsent.
(ii) To the extent of any assignment pursuant to this subsection subpartclause (c), the assigning Lender shall be relieved of its obligations hereunder with respect to its assigned Commitments.
(iii) At the time of each assignment pursuant to this subsection subpartclause (c) to a Person that is not already a Lender hereunder, the respective assignee Lender shall provide to the Parent Borrower and the Administrative Agent the applicable Internal Revenue Service Forms (and any necessary additional documentation) described in Section 3.02(e3.02(g).
(iv) With respect to any Lender, the transfer of any Commitment of such Lender and the rights to the principal of, and interest on, any Loan made pursuant to such Commitment shall not be effective until such transfer is recorded on the Lender Register maintained by the Administrative Agent (on behalf of and acting solely for this purpose as a non-fiduciary agent of the applicable BorrowerBorrowers) with respect to ownership of such Commitment and Loans, including the name and address of the Lenders and the principal amount of the Loans (and stated interest thereon). Prior to such recordation, all amounts owing to the transferor with respect to such Commitment and Loans shall remain owing to the transferor. The registration of assignment or transfer of all or part of any Commitments and Loans shall be recorded by the Administrative Agent on the Lender Register only upon the acceptance by the Administrative Agent of a properly executed and delivered Assignment Agreement pursuant to this subsection subpartclause (c). The entries in the Lender Register shall be conclusive absent manifest error, and the each Borrower, the Administrative Agent and each Lender shall treat each person whose name is recorded in the Lender Register as a Lender hereunder for all purposes of this Agreement notwithstanding any notice to the contrary. The Lender Register shall be available for the inspection by the Parent Borrower and any Lender (solely with respect to its own interest in any Loan or Commitment) at any reasonable time and from time to time upon reasonable prior notice.
(v) [Reserved].
(vi) Nothing in this Section 11.06(c10.06(c) shall prevent or prohibit (A) any Lender that is a bank, trust company or other financial institution from pledging its Notes or Loans to a Federal Reserve Bank or to any Person that extends credit to such Lender in support of borrowings made by such Lender from such Federal Reserve Bank or such other Person, or (B) any Lender that is a trust, limited liability company, partnership or other investment company from pledging its Notes or Loans to a trustee or agent for the benefit of holders of certificates or debt securities issued by it. No such pledge, or any assignment pursuant to or in lieu of an enforcement of such a pledge, shall relieve the transferor Lender from its obligations hereunder. In connection with any assignment of rights and obligations of any Defaulting Lender hereunder, no such assignment shall be effective unless and until, in addition to the other conditions thereto set forth herein, the parties to the assignment shall make such additional payments to the Administrative Agent in an aggregate amount sufficient, upon distribution thereof as appropriate (which may be outright payment, purchases by the assignee of participations or sub-participationssubparticipations, or other compensating actions, including funding, with the consent of the Parent Borrower and the Administrative Agent, the applicable pro rata share of Loans previously requested but not funded by the Defaulting Lender, to each of which the applicable assignee and assignor hereby irrevocably consent), to (x) pay and satisfy in full all payment liabilities then owed by such Defaulting Lender to the Administrative Agent or any Lender hereunder (and interest accrued thereon) and (y) acquire (and fund as appropriate) its full pro rata share of all Loans and participations in Letters of Credit and Swing Loans in accordance with its Applicable Revolving Facility Percentage. Notwithstanding the foregoing, in the event that any assignment of rights and obligations of any Defaulting Lender hereunder shall become effective under applicable law without compliance with the provisions of this paragraph, then the assignee of such interest shall be deemed to be a Defaulting Lender for all purposes of this Agreement until such compliance occurs.
Appears in 1 contract
Assignments by Lenders. (i) Any Lender may assign all, or if less than all, a fixed portion, of its Loans, LC Participations, Swing Loan Participations and/or Commitments and its rights and obligations hereunder to one or more Eligible Assignees, each of which shall become a party to this Agreement as a Lender by execution of an Assignment Agreement; provided, however, that:
(A) except in the case of (x) an assignment of the entire remaining amount of the assigning Lender’s Loans and/or Commitments or (y) an assignment to another Lender, an Affiliate of such Lender or an Approved Fund with respect to such Lender, the aggregate amount of the Commitment so assigned (which for this purpose includes the Loans outstanding thereunder) shall not be less than than, in the case of any Revolving Commitment, $2,500,000 (unless otherwise mutually agreed upon by 5,000,000, and in the Borrower and the Administrative Agent)case of any Term Commitment, $1,000,000;
(B) in the case of any assignment to an Eligible Assignee at the time of any such assignment the Lender Register shall be deemed modified to reflect the Commitments of such new Lender and of the existing Lenders;
(C) upon surrender of the old Notes, if any, upon request of the new Lender, new Notes will be issued, at the Borrower’s Borrowers’ expense, to such new Lender and to the assigning Lender, to the extent needed to reflect the revised Commitments;; and
(D) unless waived by the Administrative Agent, except in the case of an assignment to another Lender, an Affiliate of such Lender or an Approved Fund with respect to such Lender, or any Lenders in connection with the initial syndication of the Credit Facilities on or after the Closing Date, the Administrative Agent shall receive at the time of each such assignment, from the assigning or assignee Lender, the payment of a non-refundable assignment fee of $3,500; and
(E) any such assignment shall require the prior written consent (such consent (except with respect to assignments to competitors of the Borrower) not to be unreasonably withheld or delayed) of:
(1) the Borrower; , provided that no consent of the Borrower only one such fee shall be required for an assignment (x) by a Lender to any Lender or a U.S. based-Affiliate of any Lender, (y) by a Lender to an Approved Fund and (z) during a Specified Event of Default (unless such assignment is to a Disqualified Lender). Notwithstanding anything payable in this Section 11.06 to the contrary, if the Borrower has not given the Administrative Agent written notice of its objection to an assignment of Loans within fifteen (15) Business Days after written notice of such assignment, the Borrower shall be deemed to have consented to such assignment;
(2) the Administrative Agent; provided that no consent of the Administrative Agent shall be required for an assignment event of a Loan contemporaneous assignment to a Lender, an Affiliate of a Lender or an by two or more Approved Fund; and
(3) each LC Issuer and Swing Line Lender; provided that no consent of an LC Issuer or Swing Line Lender shall be required for an assignment of a Loan to a Lender, an Affiliate of a Lender or an Approved FundFunds.
(ii) To the extent of any assignment pursuant to this subsection subpart (c), the assigning Lender shall be relieved of its obligations hereunder with respect to its assigned Commitments.
(iii) At the time of each assignment pursuant to this subsection subpart (c) ), to a Person that is not already a Lender hereunderhereunder and that is not a United States Person (as such term is defined in Section 7701(a)(30) of the Code) for Federal income tax purposes, the respective assignee Lender shall provide to the Borrower Representative and the Administrative Agent the applicable Internal Revenue Service Forms (and any necessary additional documentation) described in Section 3.02(e3.03(b).
(iv) With respect to any Lender, the transfer of any Commitment of such Lender and the rights to the principal of, and interest on, any Loan made pursuant to such Commitment shall not be effective until such transfer is recorded on the Lender Register maintained by the Administrative Agent (on behalf of and acting solely for this purpose as a non-fiduciary agent of the applicable Borrower) with respect to ownership of such Commitment and Loans, including the name Loans and address of the Lenders and the principal amount of the Loans (and stated interest thereon). Prior prior to such recordation, recordation all amounts owing to the transferor with respect to such Commitment and Loans shall remain owing to the transferor. The registration of assignment or transfer of all or part of any Commitments and Loans shall be recorded by the Administrative Agent on the Lender Register only upon the acceptance by the Administrative Agent of a properly executed and delivered Assignment Agreement pursuant to this subsection subpart (c). The entries in the Lender Register shall be conclusive absent manifest error, and the Borrower, the Administrative Agent and each Lender shall treat each person whose name is recorded in the Lender Register as a Lender hereunder for all purposes of this Agreement notwithstanding any notice to the contrary. The Lender Register shall be available for the inspection by the Borrower and any Lender (solely with respect to its own interest in any Loan or Commitment) at any reasonable time and from time to time upon reasonable prior notice.
(v) [Reserved].
(vi) Nothing in this Section 11.06(c) shall prevent or prohibit (A) any Lender that is an Approved Fund, a bank, trust company or other financial institution from pledging its Notes or Loans to a Federal Reserve Bank or to any Person that extends credit to such Lender in support of borrowings made by such Lender from such Federal Reserve Bank or such other PersonBank, or (B) any Lender that is an Approved Fund, a trust, limited liability company, partnership or other investment company from pledging its Notes or Loans to a trustee or agent for the benefit of holders of certificates or debt securities issued by it, including any such pledge to any trustee or agent for, or any other representatives of, such holder. No such pledge, or any assignment pursuant to or in lieu of an enforcement of such a pledge, shall relieve the transferor Lender from its obligations hereunder. In connection with any assignment of rights and obligations of any Defaulting Lender hereunder, no such assignment shall be effective unless and until, in addition to the other conditions thereto set forth herein, the parties to the assignment shall make such additional payments to the Administrative Agent in an aggregate amount sufficient, upon distribution thereof as appropriate (which may be outright payment, purchases by the assignee of participations or sub-participations, or other compensating actions, including funding, with the consent of the Borrower and the Administrative Agent, the applicable pro rata share of Loans previously requested but not funded by the Defaulting Lender, to each of which the applicable assignee and assignor hereby irrevocably consent), to (x) pay and satisfy in full all payment liabilities then owed by such Defaulting Lender to the Administrative Agent or any Lender hereunder (and interest accrued thereon) and (y) acquire (and fund as appropriate) its full pro rata share of all Loans and participations in Letters of Credit and Swing Loans in accordance with its Applicable Percentage. Notwithstanding the foregoing, in the event that any assignment of rights and obligations of any Defaulting Lender hereunder shall become effective under applicable law without compliance with the provisions of this paragraph, then the assignee of such interest shall be deemed to be a Defaulting Lender for all purposes of this Agreement until such compliance occurs.
Appears in 1 contract
Assignments by Lenders. Notwithstanding the foregoing, (ix) Any any Lender may assign all or a fixed portion of its Loans and/or Commitment, and its rights and obligations hereunder to another Lender that is not a Defaulting Lender, or to an Affiliate of any Lender (including itself) and which is not a Defaulting Lender and which is a commercial bank, financial institution or other "accredited investor" (as defined in SEC Regulation D), and (y) any Lender may assign all, or if less than all, a fixed portion, equal to at least $5,000,000 in the aggregate for the assigning Lender or assigning Lenders, of its Loans, LC Participations, Swing Loan Participations Loans and/or Commitments Commitment and its rights and obligations hereunder to one or more Eligible AssigneesTransferees, each of which assignees shall become a party to this Agreement as a Lender by execution of an Assignment Agreement; provided, however, PROVIDED that:,
(A) except in the case of (x) an assignment of the entire remaining amount of the assigning Lender’s Loans and/or Commitments or (y) an assignment to another Lender, an Affiliate of such Lender or an Approved Fund with respect to such Lender, the aggregate amount of the Commitment so assigned (which for this purpose includes the Loans outstanding thereunder) shall not be less than $2,500,000 (unless otherwise mutually agreed upon by the Borrower and the Administrative Agent);
(Bi) in the case of any assignment of a portion of any Loans and/or Commitment of a Lender, such Lender shall retain a minimum fixed portion of all Loans and Commitments equal to an Eligible Assignee at least $5,000,000;
(ii) at the time of any such assignment the Lender Register assignment, Annex I shall be deemed modified to reflect the Commitments of such new Lender and of the existing Lenders;
(Ciii) upon surrender of the old Notes, if any, upon request of the new Lender, new Notes will be issued, at the Borrower’s 's expense, to such new Lender and to the assigning Lender, such new Notes to be in conformity with the requirements of section 2.4 (with appropriate modifications) to the extent needed to reflect the revised Commitments;
(Div) unless waived by the Administrative Agent, except in the case of an assignment to another Lenderclause (y) only, an Affiliate the consent of such Lender the Administrative Agent and, so long as no Default or an Approved Fund with respect to such LenderEvent of Default shall have occurred or be continuing, or any Lenders the Borrower shall be required in connection with the initial syndication of the Credit Facilities on any such assignment (which consent, in each case, shall not be unreasonably withheld or after the Closing Date, delayed);
(v) the Administrative Agent shall receive at the time of each such assignment, from the assigning or assignee Lender, the payment of a non-refundable assignment fee of $3,500; and
(E) any PROVIDED, that no such assignment shall require the prior written consent (such consent (except with respect to assignments to competitors of the Borrower) not to be unreasonably withheld or delayed) of:
(1) the Borrower; provided that no consent of the Borrower fee shall be required for payable in the case of an assignment (x) by assignee which is already a Lender to any Lender or a U.S. based-Affiliate of any Lender, (y) by a Lender to an Approved Fund and (z) during a Specified Event of Default (unless such assignment is to a Disqualified Lender). Notwithstanding anything in this Section 11.06 to the contrary, if the Borrower has not given the Administrative Agent written notice of its objection to an assignment of Loans within fifteen (15) Business Days after written notice of such assignment, the Borrower shall be deemed to have consented to such assignment;
(2) the Administrative Agent; provided that no consent of the Administrative Agent shall be required for an assignment of a Loan to a Lender, an Affiliate of a Lender or an Approved Fund; and
(3) each LC Issuer and Swing Line Lender; PROVIDED, FURTHER, that such transfer or assignment will not be effective until the Assignment Agreement in respect thereof is recorded by the Administrative Agent on the Lender Register maintained by it as provided that no consent of an LC Issuer or Swing Line Lender shall be required for an assignment of a Loan to a Lender, an Affiliate of a Lender or an Approved Fund.
(ii) herein. To the extent of any assignment pursuant to this subsection (csection 12.4(c), the assigning Lender shall be relieved of its obligations hereunder with respect to its assigned Commitments.
(iii) . At the time of each assignment pursuant to this subsection (csection 12.4(c) to a Person that person which is not already a Lender hereunderhereunder and which is not a United States person (as such term is defined in section 7701(a)(30) of the Code) for Federal income tax purposes, the respective assignee Lender shall provide to the Borrower and the Administrative Agent the applicable appropriate Internal Revenue Service Forms (and any necessary additional documentationand, if applicable a Lender Tax Certificate) described in Section 3.02(esection 5.5(c).
(iv. To the extent that an assignment of all or any portion of a Lender's Commitment and related outstanding Obligations pursuant to this section 12.4(c) With respect to any Lenderwould, at the transfer of any Commitment time of such assignment, result in increased costs under section 2.9 from those being charged by the respective assigning Lender and the rights to the principal of, and interest on, any Loan made pursuant prior to such Commitment assignment, then the Borrower shall not be effective until obligated to pay such transfer is recorded on increased costs (although the Lender Register maintained by the Administrative Agent (on behalf of and acting solely for this purpose as a non-fiduciary agent Borrower shall be obligated to pay any other increased costs of the applicable Borrower) with respect to ownership of such Commitment and Loans, including type described above resulting from changes after the name and address date of the Lenders and the principal amount of the Loans (and stated interest thereonrespective assignment). Prior to such recordation, all amounts owing to the transferor with respect to such Commitment and Loans shall remain owing to the transferor. The registration of assignment or transfer of all or part of any Commitments and Loans shall be recorded by the Administrative Agent on the Lender Register only upon the acceptance by the Administrative Agent of a properly executed and delivered Assignment Agreement pursuant to this subsection (c). The entries in the Lender Register shall be conclusive absent manifest error, and the Borrower, the Administrative Agent and each Lender shall treat each person whose name is recorded in the Lender Register as a Lender hereunder for all purposes of this Agreement notwithstanding any notice to the contrary. The Lender Register shall be available for the inspection by the Borrower and any Lender (solely with respect to its own interest in any Loan or Commitment) at any reasonable time and from time to time upon reasonable prior notice.
(v) [Reserved].
(vi) Nothing in this Section 11.06(csection 12.4(c) shall prevent or prohibit (Ai) any Lender that which is a bank, trust company or other financial institution from pledging its Notes or Loans to a Federal Reserve Bank or to any Person that extends credit to such Lender in support of borrowings made by such Lender from such Federal Reserve Bank or such other PersonBank, or (Bii) any Lender that which is a trust, limited liability company, mutual fund, partnership or other investment company from pledging its Notes or Loans to a trustee or agent for the benefit of holders of certificates or debt securities issued by it. No such pledge, or any assignment pursuant to or in lieu of an enforcement of such a pledge, shall relieve the transferor Lender from its obligations hereunder. In connection with any assignment of rights and obligations of any Defaulting Lender hereunder, no such assignment shall be effective unless and until, in addition to the other conditions thereto set forth herein, the parties to the assignment shall make such additional payments to the Administrative Agent in an aggregate amount sufficient, upon distribution thereof as appropriate (which may be outright payment, purchases by the assignee of participations or sub-participations, or other compensating actions, including funding, with the consent of the Borrower and the Administrative Agent, the applicable pro rata share of Loans previously requested but not funded by the Defaulting Lender, to each of which the applicable assignee and assignor hereby irrevocably consent), to (x) pay and satisfy in full all payment liabilities then owed by such Defaulting Lender to the Administrative Agent or any Lender hereunder (and interest accrued thereon) and (y) acquire (and fund as appropriate) its full pro rata share of all Loans and participations in Letters of Credit and Swing Loans in accordance with its Applicable Percentage. Notwithstanding the foregoing, in the event that any assignment of rights and obligations of any Defaulting Lender hereunder shall become effective under applicable law without compliance with the provisions of this paragraph, then the assignee of such interest shall be deemed to be a Defaulting Lender for all purposes of this Agreement until such compliance occurs.
Appears in 1 contract
Assignments by Lenders. (i) Any Lender may assign all, or if less than all, a fixed portion, of its Loans, LC Participations, Swing Loan Participations and/or Commitments and its rights and obligations hereunder to one or more Eligible Assignees, each of which shall become a party to this Agreement as a Lender by execution of an Assignment Agreement; provided, however, that:
(A) except in the case of (x) an assignment of the entire remaining amount of the assigning Lender’s Loans and/or Commitments or (y) an assignment to another Lender, an Affiliate of such Lender or an Approved Fund with respect to such Lender, the aggregate amount of the Commitment so assigned (which for this purpose includes the Loans outstanding thereunder) shall not be less than $2,500,000 (unless otherwise mutually agreed upon by the Borrower and the Administrative Agent)2,500,000;
(B) in the case of any assignment to an Eligible Assignee at the time of any such assignment the Lender Register shall be deemed modified to reflect the Commitments of such new Lender and of the existing Lenders;
(C) upon surrender of the old Notes, if any, upon request of the new Lender, new Notes will be issued, at the Borrower’s Borrowers’ expense, to such new Lender and to the assigning Lender, to the extent needed to reflect the revised Commitments;; and
(D) unless waived by the Administrative Agent, except in the case of an assignment to another Lender, an Affiliate of such Lender or an Approved Fund with respect to such Lender, or any Lenders in connection with the initial syndication of the Credit Facilities on or after the Closing Date, the Administrative Agent shall receive at the time of each such assignment, from the assigning or assignee Lender, the payment of a non-refundable assignment fee of $3,500; and
(E) any such assignment shall require the prior written consent (such consent (except with respect to assignments to competitors of the Borrower) not to be unreasonably withheld or delayed) of:
(1) the Borrower; provided that no consent of the Borrower shall be required for an assignment (x) by a Lender to any Lender or a U.S. based-Affiliate of any Lender, (y) by a Lender to an Approved Fund and (z) during a Specified Event of Default (unless such assignment is to a Disqualified Lender). Notwithstanding anything in this Section 11.06 to the contrary, if the Borrower has not given the Administrative Agent written notice of its objection to an assignment of Loans within fifteen (15) Business Days after written notice of such assignment, the Borrower shall be deemed to have consented to such assignment;
(2) the Administrative Agent; provided that no consent of the Administrative Agent shall be required for an assignment of a Loan to a Lender, an Affiliate of a Lender or an Approved Fund; and
(3) each LC Issuer and Swing Line Lender; provided that no consent of an LC Issuer or Swing Line Lender shall be required for an assignment of a Loan to a Lender, an Affiliate of a Lender or an Approved Fund.
(ii) To the extent of any assignment pursuant to this subsection subpart (c), the assigning Lender shall be relieved of its obligations hereunder with respect to its assigned Commitments.
(iii) At the time of each assignment pursuant to this subsection subpart (c) ), to a Person that is not already a Lender hereunderhereunder and that is not a United States Person (as such term is defined in Section 7701(a)(30) of the Code) for Federal income tax purposes, the respective assignee Lender shall provide to the Borrower Representative and the Administrative Agent the applicable Internal Revenue Service Forms (and any necessary additional documentation) described in Section 3.02(e3.03(b).
(iv) With respect to any Lender, the transfer of any Commitment of such Lender and the rights to the principal of, and interest on, any Loan made pursuant to such Commitment shall not be effective until such transfer is recorded on the Lender Register maintained by the Administrative Agent (on behalf of and acting solely for this purpose as a non-fiduciary agent of the applicable Borrower) with respect to ownership of such Commitment and Loans, including the name Loans and address of the Lenders and the principal amount of the Loans (and stated interest thereon). Prior prior to such recordation, recordation all amounts owing to the transferor with respect to such Commitment and Loans shall remain owing to the transferor. The registration of assignment or transfer of all or part of any Commitments and Loans shall be recorded by the Administrative Agent on the Lender Register only upon the acceptance by the Administrative Agent of a properly executed and delivered Assignment Agreement pursuant to this subsection subpart (c). The entries in the Lender Register shall be conclusive absent manifest error, and the Borrower, the Administrative Agent and each Lender shall treat each person whose name is recorded in the Lender Register as a Lender hereunder for all purposes of this Agreement notwithstanding any notice to the contrary. The Lender Register shall be available for the inspection by the Borrower and any Lender (solely with respect to its own interest in any Loan or Commitment) at any reasonable time and from time to time upon reasonable prior notice.
(v) [Reserved].
(vi) Nothing in this Section 11.06(c) shall prevent or prohibit (A) any Lender that is a bank, trust company or other financial institution from pledging its Notes or Loans to a Federal Reserve Bank or to any Person that extends credit to such Lender in support of borrowings made by such Lender from such Federal Reserve Bank or such other PersonBank, or (B) any Lender that is a trust, limited liability company, partnership or other investment company from pledging its Notes or Loans to a trustee or agent for the benefit of holders of certificates or debt securities issued by it. No such pledge, or any assignment pursuant to or in lieu of an enforcement of such a pledge, shall relieve the transferor Lender from its obligations hereunder. In connection with any assignment of rights and obligations of any Defaulting Lender hereunder, no such assignment shall be effective unless and until, in addition to the other conditions thereto set forth herein, the parties to the assignment shall make such additional payments to the Administrative Agent in an aggregate amount sufficient, upon distribution thereof as appropriate (which may be outright payment, purchases by the assignee of participations or sub-participations, or other compensating actions, including funding, with the consent of the Borrower and the Administrative Agent, the applicable pro rata share of Loans previously requested but not funded by the Defaulting Lender, to each of which the applicable assignee and assignor hereby irrevocably consent), to (x) pay and satisfy in full all payment liabilities then owed by such Defaulting Lender to the Administrative Agent or any Lender hereunder (and interest accrued thereon) and (y) acquire (and fund as appropriate) its full pro rata share of all Loans and participations in Letters of Credit and Swing Loans in accordance with its Applicable Percentage. Notwithstanding the foregoing, in the event that any assignment of rights and obligations of any Defaulting Lender hereunder shall become effective under applicable law without compliance with the provisions of this paragraph, then the assignee of such interest shall be deemed to be a Defaulting Lender for all purposes of this Agreement until such compliance occurs.
Appears in 1 contract
Samples: Credit Agreement (Ico Inc)
Assignments by Lenders. (i) Any Lender may assign all, or if less than all, a fixed portion, of its Loans, LC Participations, Swing Loan Participations Loans and/or Commitments Commitment and its rights and obligations hereunder to one or more Eligible Assignees, each of which shall become a party to this Agreement as a Lender by execution of an Assignment Agreement; provided, however, provided that:
(Ai) except in the case of (x) an assignment of the entire remaining amount of the assigning Lender’s 's Loans and/or Commitments Commitment or (y) an assignment to another Lender, an Affiliate of such Lender or an Approved Fund with respect to such Lender, the aggregate amount of the each such assignment of such Commitment so assigned (which for this purpose includes the Loans outstanding thereunder) ), shall not be less than $2,500,000 5,000,000 (unless otherwise mutually agreed upon by the Borrower and the Administrative Agentor, if greater, in integral multiples of $1,000,000 in excess thereof);,
(Bii) the Swing Line Lender may only assign its Swing Line Commitment and its Swing Line Loans as an entirety and only if the assignee thereof is or becomes a Lender with a Revolving Commitment,
(iii) in the case of any assignment to an Eligible Assignee at the time of any such assignment the Lender Register shall be deemed modified to reflect the Commitments of such new Lender and of the existing Lenders;,
(Civ) upon surrender of the old Notes, if any, upon request of the new Lender, new Notes will be issued, at the Borrower’s 's expense, to such new Lender and to the assigning Lender, such new Notes to be in conformity with the requirements of Section 2.4 (with appropriate modifications) to the extent needed to reflect the revised Commitments;,
(Dv) unless waived by the Administrative Agent, except in the case of an assignment to another Lender, an Affiliate of such Lender or an Approved Fund with respect to such Lender, or any Lenders in connection with the initial syndication of the Credit Facilities on or after the Closing Date, the Administrative Agent shall receive at the time of each such assignment, from the assigning or assignee Lender, the payment of a non-refundable assignment fee of $3,500; , and
(E) any , provided further, that such transfer or assignment shall require will not be effective until the prior written consent (such consent (except with Assignment Agreement in respect to assignments to competitors of the Borrower) not to be unreasonably withheld or delayed) of:
(1) the Borrower; provided that no consent of the Borrower shall be required for an assignment (x) thereof is recorded by a Lender to any Lender or a U.S. based-Affiliate of any Lender, (y) by a Lender to an Approved Fund and (z) during a Specified Event of Default (unless such assignment is to a Disqualified Lender). Notwithstanding anything in this Section 11.06 to the contrary, if the Borrower has not given the Administrative Agent written notice of its objection to an assignment of Loans within fifteen (15) Business Days after written notice of such assignment, on the Borrower shall be deemed to have consented to such assignment;
(2) the Administrative Agent; Lender Register maintained by it as provided that no consent of the Administrative Agent shall be required for an assignment of a Loan to a Lender, an Affiliate of a Lender or an Approved Fund; and
(3) each LC Issuer and Swing Line Lender; provided that no consent of an LC Issuer or Swing Line Lender shall be required for an assignment of a Loan to a Lender, an Affiliate of a Lender or an Approved Fund.
(ii) herein. To the extent of any assignment pursuant to this subsection (c), Section 12.4(c) the assigning Lender shall be relieved of its obligations hereunder with respect to its assigned Commitments.
(iii) . At the time of each assignment pursuant to this subsection (cSection 12.4(c) to a Person that is not already a Lender hereunderhereunder and that is not a United States Person (as such term is defined in Section 7701(a)(30) of the Code) for Federal income tax purposes, the respective assignee Lender shall provide to the Borrower and the Administrative Agent the applicable appropriate Internal Revenue Service Forms (and any necessary additional documentationand, if applicable an Exemption Certificate) described in Section 3.02(e5.5(b).
(iv. To the extent that an assignment of all or any portion of a Lender's Commitment and related outstanding Obligations pursuant to this Section 12.4(c) With respect to any Lenderwould, at the transfer of any Commitment time of such assignment, result in increased costs under Section 5.5 from those being charged by the respective assigning Lender and the rights to the principal of, and interest on, any Loan made pursuant prior to such Commitment assignment, then the Borrower shall not be effective until obligated to pay such transfer is recorded on increased costs (although the Lender Register maintained by the Administrative Agent (on behalf of and acting solely for this purpose as a non-fiduciary agent Borrower shall be obligated to pay any other increased costs of the applicable Borrower) with respect to ownership of such Commitment and Loans, including type described above resulting from changes after the name and address date of the Lenders and the principal amount of the Loans (and stated interest thereonrespective assignment). Prior to such recordation, all amounts owing to the transferor with respect to such Commitment and Loans shall remain owing to the transferor. The registration of assignment or transfer of all or part of any Commitments and Loans shall be recorded by the Administrative Agent on the Lender Register only upon the acceptance by the Administrative Agent of a properly executed and delivered Assignment Agreement pursuant to this subsection (c). The entries in the Lender Register shall be conclusive absent manifest error, and the Borrower, the Administrative Agent and each Lender shall treat each person whose name is recorded in the Lender Register as a Lender hereunder for all purposes of this Agreement notwithstanding any notice to the contrary. The Lender Register shall be available for the inspection by the Borrower and any Lender (solely with respect to its own interest in any Loan or Commitment) at any reasonable time and from time to time upon reasonable prior notice.
(v) [Reserved].
(vi) Nothing in this Section 11.06(c12.4(c) shall prevent or prohibit (Ai) any Lender that is a bank, trust company or other financial institution from pledging its Notes or Loans to a Federal Reserve Bank or to any Person that extends credit to such Lender in support of borrowings made by such Lender from such Federal Reserve Bank or such other PersonBank, or (Bii) any Lender that is a trust, limited liability company, partnership or other investment company from pledging its Notes or Loans to a trustee or agent for the benefit of holders of certificates or debt securities issued by it. No such pledge, or any assignment pursuant to or in lieu of an enforcement of such a pledge, shall relieve the transferor Lender from its obligations hereunder. In connection with any assignment of rights and obligations of any Defaulting Lender hereunder, no such assignment shall be effective unless and until, in addition to the other conditions thereto set forth herein, the parties to the assignment shall make such additional payments to the Administrative Agent in an aggregate amount sufficient, upon distribution thereof as appropriate (which may be outright payment, purchases by the assignee of participations or sub-participations, or other compensating actions, including funding, with the consent of the Borrower and the Administrative Agent, the applicable pro rata share of Loans previously requested but not funded by the Defaulting Lender, to each of which the applicable assignee and assignor hereby irrevocably consent), to (x) pay and satisfy in full all payment liabilities then owed by such Defaulting Lender to the Administrative Agent or any Lender hereunder (and interest accrued thereon) and (y) acquire (and fund as appropriate) its full pro rata share of all Loans and participations in Letters of Credit and Swing Loans in accordance with its Applicable Percentage. Notwithstanding the foregoing, in the event that any assignment of rights and obligations of any Defaulting Lender hereunder shall become effective under applicable law without compliance with the provisions of this paragraph, then the assignee of such interest shall be deemed to be a Defaulting Lender for all purposes of this Agreement until such compliance occurs.
Appears in 1 contract
Assignments by Lenders. (i) Any Lender may assign all, to one or if less than all, more assignees all or a fixed portion, portion of its Loans, LC Participations, Swing Loan Participations and/or Commitments and its rights and obligations hereunder to one or more Eligible Assignees, each of which shall become a party to under this Agreement as (including all or a Lender by execution portion of an Assignment Agreementits Commitments and the Loans at the time owing to it); provided, however, that:
provided that (Ai) except in the case of an assignment by a Lender to another Lender, an Affiliate of a Lender or an Approved Fund with respect to a Lender or an Affiliate of a Lender, each of the Borrower and the Administrative Agent (xand, in the case of an assignment of all or a portion of a Commitment or any Lender's obligations in respect of its LC Exposure, Swingline Exposure or Foreign Currency Exposure, the Issuing Lenders, the Swingline Lender and the Foreign Currency Lender) must give their prior written consent to such assignment (which consent in each case shall not be unreasonably withheld), (ii) except in the case of an assignment by a Lender to another Lender, an Affiliate of a Lender or with respect to a Lender or an Affiliate of a Lender or an assignment of the entire remaining amount of the assigning Lender’s Loans and/or Commitments or 's Commitment(s), the amount of the Commitment(s) of the assigning Lender subject to each such assignment (y) an assignment to another Lender, an Affiliate determined as of such Lender or an Approved Fund the date the Assignment and Acceptance with respect to such Lender, assignment is delivered to the aggregate amount of the Commitment so assigned (which for this purpose includes the Loans outstanding thereunderAdministrative Agent) shall not be less than $2,500,000 (5,000,000 unless otherwise mutually agreed upon by the Borrower and the Administrative Agent);
(B) in the case each of any assignment to an Eligible Assignee at the time of any such assignment the Lender Register shall be deemed modified to reflect the Commitments of such new Lender and of the existing Lenders;
(C) upon surrender of the old Notes, if any, upon request of the new Lender, new Notes will be issued, at the Borrower’s expense, to such new Lender and to the assigning Lender, to the extent needed to reflect the revised Commitments;
(D) unless waived by the Administrative Agent, except in the case of an assignment to another Lender, an Affiliate of such Lender or an Approved Fund with respect to such Lender, or any Lenders in connection with the initial syndication of the Credit Facilities on or after the Closing Date, the Administrative Agent shall receive at the time of each such assignment, from the assigning or assignee Lender, the payment of a non-refundable assignment fee of $3,500; and
(E) any such assignment shall require the prior written consent (such consent (except with respect to assignments to competitors of the Borrower) not to be unreasonably withheld or delayed) of:
(1) the Borrower; provided that no consent of the Borrower shall be required for an assignment (x) by a Lender to any Lender or a U.S. based-Affiliate of any Lender, (y) by a Lender to an Approved Fund and (z) during a Specified Event of Default (unless such assignment is to a Disqualified Lender). Notwithstanding anything in this Section 11.06 to the contrary, if the Borrower has not given the Administrative Agent written notice of its objection to an assignment of Loans within fifteen (15) Business Days after written notice of such assignment, the Borrower shall be deemed to have consented to such assignment;
(2) the Administrative Agent; provided that no consent of the Administrative Agent shall be required for an assignment of a Loan to a Lender, an Affiliate of a Lender or an Approved Fund; and
(3) each LC Issuer and Swing Line Lender; provided that no consent of an LC Issuer or Swing Line Lender shall be required for an assignment of a Loan to a Lender, an Affiliate of a Lender or an Approved Fund.
(ii) To the extent of any assignment pursuant to this subsection (c), the assigning Lender shall be relieved of its obligations hereunder with respect to its assigned Commitments.
(iii) At the time of each assignment pursuant to this subsection (c) to a Person that is not already a Lender hereunder, the respective assignee Lender shall provide to the Borrower and the Administrative Agent the applicable Internal Revenue Service Forms otherwise consent, (and any necessary additional documentationiii) described in Section 3.02(e).
(iv) With respect to any Lender, the transfer each partial assignment of any Class of Commitment of such Lender and the rights to the principal of, and interest on, any Loan made pursuant to such Commitment shall not be effective until such transfer is recorded on the Lender Register maintained by the Administrative Agent (on behalf of and acting solely for this purpose as a non-fiduciary agent of the applicable Borrower) with respect to ownership of such Commitment and Loans, including the name and address of the Lenders and the principal amount of the Loans (and stated interest thereon). Prior to such recordation, all amounts owing to the transferor with respect to such Commitment and Loans shall remain owing to the transferor. The registration of assignment or transfer of all or part of any Commitments and Loans shall be recorded by the Administrative Agent on the Lender Register only upon the acceptance by the Administrative Agent made as an assignment of a properly executed and delivered Assignment Agreement pursuant to this subsection (c). The entries in proportionate part of all the Lender Register shall be conclusive absent manifest error, and the Borrower, the Administrative Agent and each Lender shall treat each person whose name is recorded in the Lender Register as a Lender hereunder for all purposes of this Agreement notwithstanding any notice to the contrary. The Lender Register shall be available for the inspection by the Borrower and any Lender (solely with respect to its own interest in any Loan or Commitment) at any reasonable time and from time to time upon reasonable prior notice.
(v) [Reserved].
(vi) Nothing in this Section 11.06(c) shall prevent or prohibit (A) any Lender that is a bank, trust company or other financial institution from pledging its Notes or Loans to a Federal Reserve Bank or to any Person that extends credit to such Lender in support of borrowings made by such Lender from such Federal Reserve Bank or such other Person, or (B) any Lender that is a trust, limited liability company, partnership or other investment company from pledging its Notes or Loans to a trustee or agent for the benefit of holders of certificates or debt securities issued by it. No such pledge, or any assignment pursuant to or in lieu of an enforcement of such a pledge, shall relieve the transferor Lender from its obligations hereunder. In connection with any assignment of assigning Lender's rights and obligations of any Defaulting Lender hereundersuch Class of Commitment and Loans under this Agreement, no such assignment shall be effective unless and until, in addition to the other conditions thereto set forth herein, (iv) the parties to the each assignment shall make such additional payments execute and deliver to the Administrative Agent in an aggregate amount sufficientAssignment and Acceptance, upon distribution thereof as appropriate together with a processing and recordation fee of $3,500, and (which may v) the assignee, if it shall not be outright paymenta Lender, purchases by shall deliver to the assignee of participations or sub-participations, or other compensating actions, including funding, with the Administrative Agent an Administrative Questionnaire; provided further that any consent of the Borrower otherwise required under this paragraph shall not be required if an Event of Default under clause (h) or (i) of Article VIII has occurred and the Administrative Agent, the applicable pro rata share of Loans previously requested but not funded by the Defaulting Lender, is continuing. Upon acceptance and recording pursuant to each of which the applicable assignee and assignor hereby irrevocably consent), to paragraph (xd) pay and satisfy in full all payment liabilities then owed by such Defaulting Lender to the Administrative Agent or any Lender hereunder (and interest accrued thereon) and (y) acquire (and fund as appropriate) its full pro rata share of all Loans and participations in Letters of Credit and Swing Loans in accordance with its Applicable Percentage. Notwithstanding the foregoing, in the event that any assignment of rights and obligations of any Defaulting Lender hereunder shall become effective under applicable law without compliance with the provisions of this paragraphSection, then the assignee of such interest shall be deemed to be a Defaulting Lender for all purposes of this Agreement until such compliance occurs.from and Credit Agreement
Appears in 1 contract
Assignments by Lenders. (i) Any Lender may at any time assign all, or if less than all, a fixed portion, of its Loans, LC Participations, Swing Loan Participations and/or Commitments and its rights and obligations hereunder to one or more Eligible Assignees, each Assignees all or a portion of which shall become a party to its rights and obligations under this Agreement as (including all or a Lender by execution portion of an Assignment Agreementits Commitment and the Loans at the time owing to it); provided, however, provided that:
(Aa) except in the case of (x) an assignment of the entire remaining amount of the assigning Lender’s Commitment and Loans and/or Commitments at the time owing to it or (y) in the case of an assignment to another Lender, a Lender or an Affiliate of such a Lender or an Approved Fund with respect to such a Lender, the aggregate amount of the Commitment so assigned or Loans subject to each such assignment (which for this purpose includes determined as of the Loans outstanding thereunderdate the Assignment Agreement with respect to such assignment is delivered to the Administrative Agent) shall not be less than $2,500,000 or an integral multiple of $1,000,000 in excess thereof; provided, that two or more related Approved Funds will be treated as one assignee for purposes of determining compliance with the minimum assignment amount;
(unless otherwise mutually agreed upon b) 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 Commitments or Loans assigned;
(c) any assignment of a Commitment must be consented to by the Borrower and the Administrative Agent);
Agent (B) in the case of any assignment to an Eligible Assignee at the time of any such assignment the Lender Register shall be deemed modified to reflect the Commitments of such new Lender and of the existing Lenders;
(C) upon surrender of the old Noteseach case, if any, upon request of the new Lender, new Notes will be issued, at the Borrower’s expense, to such new Lender and to the assigning Lender, to the extent needed to reflect the revised Commitments;
(D) unless waived by the Administrative Agent, except in the case of an assignment to another Lender, an Affiliate of such Lender or an Approved Fund with respect to such Lender, or any Lenders in connection with the initial syndication of the Credit Facilities on or after the Closing Date, the Administrative Agent shall receive at the time of each such assignment, from the assigning or assignee Lender, the payment of a non-refundable assignment fee of $3,500; and
(E) any such assignment shall require the prior written consent (such consent (except with respect to assignments to competitors of the Borrower) not to be unreasonably withheld withheld, delayed or delayed) of:
(1) conditioned); provided, that the Borrower; provided that no consent of the Borrower shall not be required for an assignment (xi) by a Lender to any Lender or a U.S. based-Affiliate of any Lender, (y) by a Lender to an Approved Fund and (z) during a Specified Event of Default (unless if such assignment is made to another Lender or an Affiliate of a Disqualified Lender). Notwithstanding anything in this Section 11.06 to Lender or (ii) during the contrarycontinuance of an Event of Default; provided, if the Borrower has not given the Administrative Agent written notice further, that such consent of its objection to an assignment of Loans within fifteen (15) Business Days after written notice of such assignment, the Borrower shall be deemed to have consented to been given if the Borrower has not responded within ten Business Days of its receipt of a request for such assignmentconsent;
(2d) the parties to each assignment shall execute and deliver to the Administrative Agent an Assignment Agreement and shall pay to the Administrative Agent a processing and recordation fee of $3,500 (which fee may be waived or reduced in the sole discretion of the Administrative Agent); provided provided, that no consent only one such fee shall be payable in the case of concurrent assignments to Persons that, after giving effect to such assignments, will be Approved Funds or concurrent assignments by Approved Funds to one assignee; and
(e) the Eligible Assignee, if it shall not be a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire and if required, applicable tax forms.
(ii) Subject to acceptance and recording thereof by the Administrative Agent pursuant to Section 10.1C, from and after the effective date specified in each Assignment Agreement, the Eligible Assignee thereunder shall be required for a party to this Agreement and, to the extent of the interest assigned by such Assignment Agreement, have the rights and obligations of a Lender under this Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment Agreement, be released from its obligations under this Agreement (and, in the case of an Assignment Agreement covering all of the assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto) but shall continue to be entitled to the benefits of Sections 2.7 and 10.2 with respect to facts and circumstances occurring prior to the effective date of such assignment. An Eligible Assignee shall not be entitled to receive any greater payment under Section 2.7 than the assigning Lender would have been entitled to receive with respect to the Loan or portion of the Loan assigned to such Eligible Assignee, unless the grant to such Eligible Assignee is made with the Borrower’s prior written consent. Except in the case of an assignment of a Loan to a Lender, an Affiliate of a Lender or an Approved Fund; and
(3) each LC Issuer and Swing Line Lender; provided that no consent of an LC Issuer or Swing Line Lender shall be required for an assignment of a Loan Fund with respect to a Lender, an Affiliate of a Lender or an Approved Fund.
(ii) To the extent of any assignment pursuant to this subsection (c), the assigning Lender shall be relieved of its obligations hereunder with respect to its assigned Commitments.
(iii) At the time of each assignment pursuant to this subsection (c) to a Person that is not already a Lender hereunder, the respective assignee Lender shall provide to the Borrower and the Administrative Agent the applicable Internal Revenue Service Forms (and any necessary additional documentation) described in Section 3.02(e).
(iv) With respect to any Lender, the transfer of any Commitment of such Lender and the rights to the principal of, and interest on, any Loan made pursuant to such Commitment shall not be effective until such transfer is recorded on the Lender Register maintained by the Administrative Agent (on behalf of and acting solely for this purpose as a non-fiduciary agent of the applicable Borrower) with respect to ownership of such Commitment and Loans, including the name and address of the Lenders and the principal amount of the Loans (and stated interest thereon). Prior to such recordation, all amounts owing to the transferor with respect to such Commitment and Loans shall remain owing to the transferor. The registration of assignment or transfer by a Lender of all rights or part of any Commitments and Loans obligations under this Agreement that does not comply with this paragraph shall be recorded by the Administrative Agent on the Lender Register only upon the acceptance by the Administrative Agent of a properly executed and delivered Assignment Agreement pursuant to this subsection (c). The entries in the Lender Register shall be conclusive absent manifest error, and the Borrower, the Administrative Agent and each Lender shall treat each person whose name is recorded in the Lender Register as a Lender hereunder treated for all purposes of this Agreement notwithstanding any notice to the contrary. The Lender Register shall be available for the inspection by the Borrower and any Lender (solely with respect to its own interest in any Loan or Commitment) at any reasonable time and from time to time upon reasonable prior notice.
(v) [Reserved].
(vi) Nothing in this Section 11.06(c) shall prevent or prohibit (A) any Lender that is as a bank, trust company or other financial institution from pledging its Notes or Loans to a Federal Reserve Bank or to any Person that extends credit to such Lender in support of borrowings made sale by such Lender from of a participation in such Federal Reserve Bank or such other Person, or (B) any Lender that is a trust, limited liability company, partnership or other investment company from pledging its Notes or Loans to a trustee or agent for the benefit of holders of certificates or debt securities issued by it. No such pledge, or any assignment pursuant to or in lieu of an enforcement of such a pledge, shall relieve the transferor Lender from its obligations hereunder. In connection with any assignment of rights and obligations of any Defaulting Lender hereunder, no such assignment shall be effective unless and until, in addition to the other conditions thereto set forth herein, the parties to the assignment shall make such additional payments to the Administrative Agent in an aggregate amount sufficient, upon distribution thereof as appropriate (which may be outright payment, purchases by the assignee of participations or sub-participations, or other compensating actions, including funding, with the consent of the Borrower and the Administrative Agent, the applicable pro rata share of Loans previously requested but not funded by the Defaulting Lender, to each of which the applicable assignee and assignor hereby irrevocably consent), to (x) pay and satisfy in full all payment liabilities then owed by such Defaulting Lender to the Administrative Agent or any Lender hereunder (and interest accrued thereon) and (y) acquire (and fund as appropriate) its full pro rata share of all Loans and participations in Letters of Credit and Swing Loans in accordance with its Applicable Percentage. Notwithstanding the foregoing, in the event that any assignment of rights and obligations of any Defaulting Lender hereunder shall become effective under applicable law without compliance with the provisions of this paragraph, then the assignee of such interest shall be deemed to be a Defaulting Lender for all purposes of this Agreement until such compliance occurs.Section 10.1D.
Appears in 1 contract
Samples: 364 Day Credit Agreement (Taylor Morrison Home Corp)
Assignments by Lenders. (i) Any Lender may assign all, or if less than all, a fixed portion, of its Loans, LC Participations, Swing Loan Participations and/or Commitments and its rights and obligations hereunder to one or more Eligible Assignees, each of which shall become a party to this Agreement as a Lender by execution of an Assignment Agreement; provided, however, that:
(A) except in the case of (x) an assignment of the entire remaining amount of the assigning Lender’s Loans and/or Commitments or (y) an assignment to another Lender, an Affiliate of such Lender or an Approved Fund with respect to such Lender, the aggregate amount of the Commitment so assigned (which for this purpose includes the Loans outstanding thereunder) shall not be less than $2,500,000 7,500,000 (unless otherwise mutually agreed upon by the Borrower and the Administrative Agentor an integral multiple of $1,000,000 in excess thereof);
(B) in the case of any assignment to an Eligible Assignee at the time of any such assignment the Lender Register shall be deemed modified to reflect the Commitments of such new Lender and of the existing LendersLenders (and no assignment shall be effective hereunder unless recorded in the Lender Register as provided herein);
(C) upon surrender of the old Notes, if any, upon request of the new Lender, new Notes will be issued, at the Borrower’s expense, to such new Lender and to the assigning Lender, to the extent needed to reflect the revised Commitments;; and
(D) unless waived by the Administrative Agent, except in the case of an assignment to another Lender, an Affiliate of such Lender or an Approved Fund with respect to such Lender, or any Lenders in connection with the initial syndication of the Credit Facilities on or after the Closing Date, the Administrative Agent shall receive at the time of each such assignment, from the assigning or assignee Lender, the payment of a non-refundable assignment fee of $3,500; and
(E) any such assignment shall require the prior written consent (such consent (except with respect to assignments to competitors of the Borrower) not to be unreasonably withheld or delayed) of:
(1) the Borrower; provided that no consent of the Borrower shall be required for an assignment (x) by a Lender to any Lender or a U.S. based-Affiliate of any Lender, (y) by a Lender to an Approved Fund and (z) during a Specified Event of Default (unless such assignment is to a Disqualified Lender). Notwithstanding anything in this Section 11.06 to the contrary, if the Borrower has not given the Administrative Agent written notice of its objection to an assignment of Loans within fifteen (15) Business Days after written notice of such assignment, the Borrower shall be deemed to have consented to such assignment;
(2) the Administrative Agent; provided that no consent of the Administrative Agent shall be required for an assignment of a Loan to a Lender, an Affiliate of a Lender or an Approved Fund; and
(3) each LC Issuer and Swing Line Lender; provided that no consent of an LC Issuer or Swing Line Lender shall be required for an assignment of a Loan to a Lender, an Affiliate of a Lender or an Approved Fund.
(ii) To the extent of any assignment pursuant to this subsection subpart (c), the assigning Lender shall be relieved of its obligations hereunder with respect to its assigned Commitments.
(iii) At the time of each assignment pursuant to this subsection subpart (c) ), to a Person that is not already a Lender hereunder, the respective assignee Lender shall provide to the Borrower and the Administrative Agent the applicable Internal Revenue Service Forms (and any necessary additional documentation) described in Section 3.02(e3.03(b) or (c), as appropriate.
(iv) With respect to any Lender, the transfer of any Commitment of such Lender and the rights to the principal of, and interest on, any Loan made pursuant to such Commitment shall not be effective until such transfer is recorded on the Lender Register maintained by the Administrative Agent (on behalf of and acting solely for this purpose as a non-fiduciary agent of the applicable Borrower) with respect to ownership of such Commitment and Loans, including the name Loans and address of the Lenders and the principal amount of the Loans (and stated interest thereon). Prior prior to such recordation, recordation all amounts owing to the transferor with respect to such Commitment and Loans shall remain owing to the transferor. The registration of assignment or transfer of all or part of any Commitments and Loans shall be recorded by the Administrative Agent on the Lender Register only upon the acceptance by the Administrative Agent of a properly executed and delivered Assignment Agreement pursuant to this subsection subpart (c). The entries in the Lender Register shall be conclusive absent manifest error, and the Borrower, the Administrative Agent and each Lender shall treat each person whose name is recorded in the Lender Register as a Lender hereunder for all purposes of this Agreement notwithstanding any notice to the contrary. The Lender Register shall be available for the inspection by the Borrower and any Lender (solely with respect to its own interest in any Loan or Commitment) at any reasonable time and from time to time upon reasonable prior notice.
(v) [Reserved].
(vi) Nothing in this Section 11.06(c) shall prevent or prohibit (A) any Lender that is a bank, trust company or other financial institution from pledging its Notes or Loans to a Federal Reserve Bank or to any Person that extends credit to such Lender in support of borrowings made by such Lender from such Federal Reserve Bank or such other PersonBank, or (B) any Lender that is a trust, limited liability company, partnership or other investment company from pledging its Notes or Loans to a trustee or agent for the benefit of holders of certificates or debt securities issued by it. No such pledge, or any assignment pursuant to or in lieu of an enforcement of such a pledge, shall relieve the transferor Lender from its obligations hereunder. In connection with any assignment of rights and obligations of any Defaulting Lender hereunder, no such assignment shall be effective unless and until, in addition to the other conditions thereto set forth herein, the parties to the assignment shall make such additional payments to the Administrative Agent in an aggregate amount sufficient, upon distribution thereof as appropriate (which may be outright payment, purchases by the assignee of participations or sub-participations, or other compensating actions, including funding, with the consent of the Borrower and the Administrative Agent, the applicable pro rata share of Loans previously requested but not funded by the Defaulting Lender, to each of which the applicable assignee and assignor hereby irrevocably consent), to (x) pay and satisfy in full all payment liabilities then owed by such Defaulting Lender to the Administrative Agent or any Lender hereunder (and interest accrued thereon) and (y) acquire (and fund as appropriate) its full pro rata share of all Loans and participations in Letters of Credit and Swing Loans in accordance with its Applicable Percentage. Notwithstanding the foregoing, in the event that any assignment of rights and obligations of any Defaulting Lender hereunder shall become effective under applicable law without compliance with the provisions of this paragraph, then the assignee of such interest shall be deemed to be a Defaulting Lender for all purposes of this Agreement until such compliance occurs.
Appears in 1 contract
Assignments by Lenders. Notwithstanding the foregoing, (ix) Any any Lender may assign all or a fixed portion of its Loans and/or Commitment, and its rights and obligations hereunder, to another Lender that is not a Defaulting Lender, or to an Affiliate of any Lender (including itself) that is not a Defaulting Lender and that is a commercial bank, financial institution or other “accredited investor” (as defined in SEC Regulation D), and (y) any Lender may assign all, or if less than all, a fixed portion, equal to at least $1,000,000 (or, in the case of the first sixty days following the Closing Date, equal to at least $500,000 and in $100,000 increments thereto) in the aggregate for the assigning Lender or assigning Lenders, of its Loans, LC Participations, Swing Loan Participations Loans and/or Commitments Commitment and its rights and obligations hereunder hereunder, to one or more Eligible AssigneesTransferees, each of which assignees shall become a party to this Agreement as a Lender by execution of an Assignment Agreement; provided, however, provided that:
(A) except in the case of (x) an assignment of the entire remaining amount of the assigning Lender’s Loans and/or Commitments or (y) an assignment to another Lender, an Affiliate of such Lender or an Approved Fund with respect to such Lender, the aggregate amount of the Commitment so assigned (which for this purpose includes the Loans outstanding thereunder) shall not be less than $2,500,000 (unless otherwise mutually agreed upon by the Borrower and the Administrative Agent);
(Bi) in the case of any assignment of a portion of any Loans and/or Commitment of a Lender, such Lender shall retain a minimum fixed portion of all Loans and Commitments equal to at least $5,000,000;
(ii) the Swing Line Lender may only assign its Swing Line Revolving Commitment and its Swing Line Revolving Loans as an Eligible Assignee entirety and only if the assignee thereof is or becomes a Lender with a General Revolving Commitment; Table of Contents (iii) at the time of any such assignment the Lender Register shall be deemed modified to reflect the Commitments of such new Lender and of the existing Lenders;
(C) upon surrender of the old Notes, if any, upon request of the new Lender, new Notes will be issued, at the Borrower’s expense, to such new Lender and to the assigning Lender, to the extent needed to reflect the revised Commitments;
(D) unless waived by the Administrative Agent, except in the case of an assignment to another Lender, an Affiliate of such Lender or an Approved Fund with respect to such Lender, or any Lenders in connection with the initial syndication of the Credit Facilities on or after the Closing Date, the Administrative Agent shall receive at the time of each such assignment, from the assigning or assignee Lender, the payment of a non-refundable assignment fee of $3,500; and
(E) any such assignment shall require the prior written consent (such consent (except with respect to assignments to competitors of the Borrower) not to be unreasonably withheld or delayed) of:
(1) the Borrower; provided that no consent of the Borrower shall be required for an assignment (x) by a Lender to any Lender or a U.S. based-Affiliate of any Lender, (y) by a Lender to an Approved Fund and (z) during a Specified Event of Default (unless such assignment is to a Disqualified Lender). Notwithstanding anything in this Section 11.06 to the contrary, if the Borrower has not given the Administrative Agent written notice of its objection to an assignment of Loans within fifteen (15) Business Days after written notice of such assignment, the Borrower shall be deemed to have consented to such assignment;
(2) the Administrative Agent; provided that no consent of the Administrative Agent shall be required for an assignment of a Loan to a Lender, an Affiliate of a Lender or an Approved Fund; and
(3) each LC Issuer and Swing Line Lender; provided that no consent of an LC Issuer or Swing Line Lender shall be required for an assignment of a Loan to a Lender, an Affiliate of a Lender or an Approved Fund.
(ii) To the extent of any assignment pursuant to this subsection (c), the assigning Lender shall be relieved of its obligations hereunder with respect to its assigned Commitments.
(iii) At the time of each assignment pursuant to this subsection (c) to a Person that is not already a Lender hereunder, the respective assignee Lender shall provide to the Borrower and the Administrative Agent the applicable Internal Revenue Service Forms (and any necessary additional documentation) described in Section 3.02(e).
(iv) With respect to any Lender, the transfer of any Commitment of such Lender and the rights to the principal of, and interest on, any Loan made pursuant to such Commitment shall not be effective until such transfer is recorded on the Lender Register maintained by the Administrative Agent (on behalf of and acting solely for this purpose as a non-fiduciary agent of the applicable Borrower) with respect to ownership of such Commitment and Loans, including the name and address of the Lenders and the principal amount of the Loans (and stated interest thereon). Prior to such recordation, all amounts owing to the transferor with respect to such Commitment and Loans shall remain owing to the transferor. The registration of assignment or transfer of all or part of any Commitments and Loans shall be recorded by the Administrative Agent on the Lender Register only upon the acceptance by the Administrative Agent of a properly executed and delivered Assignment Agreement pursuant to this subsection (c). The entries in the Lender Register shall be conclusive absent manifest error, and the Borrower, the Administrative Agent and each Lender shall treat each person whose name is recorded in the Lender Register as a Lender hereunder for all purposes of this Agreement notwithstanding any notice to the contrary. The Lender Register shall be available for the inspection by the Borrower and any Lender (solely with respect to its own interest in any Loan or Commitment) at any reasonable time and from time to time upon reasonable prior notice.
(v) [Reserved].
(vi) Nothing in this Section 11.06(c) shall prevent or prohibit (A) any Lender that is a bank, trust company or other financial institution from pledging its Notes or Loans to a Federal Reserve Bank or to any Person that extends credit to such Lender in support of borrowings made by such Lender from such Federal Reserve Bank or such other Person, or (B) any Lender that is a trust, limited liability company, partnership or other investment company from pledging its Notes or Loans to a trustee or agent for the benefit of holders of certificates or debt securities issued by it. No such pledge, or any assignment pursuant to or in lieu of an enforcement of such a pledge, shall relieve the transferor Lender from its obligations hereunder. In connection with any assignment of rights and obligations of any Defaulting Lender hereunder, no such assignment shall be effective unless and until, in addition to the other conditions thereto set forth herein, the parties to the assignment shall make such additional payments to the Administrative Agent in an aggregate amount sufficient, upon distribution thereof as appropriate (which may be outright payment, purchases by the assignee of participations or sub-participations, or other compensating actions, including funding, with the consent of the Borrower and the Administrative Agent, the applicable pro rata share of Loans previously requested but not funded by the Defaulting Lender, to each of which the applicable assignee and assignor hereby irrevocably consent), to (x) pay and satisfy in full all payment liabilities then owed by such Defaulting Lender to the Administrative Agent or any Lender hereunder (and interest accrued thereon) and (y) acquire (and fund as appropriate) its full pro rata share of all Loans and participations in Letters of Credit and Swing Loans in accordance with its Applicable Percentage. Notwithstanding the foregoing, in the event that any assignment of rights and obligations of any Defaulting Lender hereunder shall become effective under applicable law without compliance with the provisions of this paragraph, then the assignee of such interest shall be deemed to be a Defaulting Lender for all purposes of this Agreement until such compliance occurs.
Appears in 1 contract
Assignments by Lenders. (i) Any Lender may assign all, or if less than all, a fixed portion, any portion of its Loans, LC Participations, Swing Loan Participations and/or Commitments and its rights and obligations hereunder to one or more Eligible Assignees, each of which shall become a party to this Agreement as a Lender by execution of an Assignment Agreement; provided, however, that:
(A) except in the case of (x) of an assignment of the entire remaining amount of the assigning Lender’s Loans and/or Commitments or (y) an assignment to another Lender, an Affiliate of such Lender or an Approved Fund with respect to such of any Lender, the aggregate amount of the Commitment so assigned (which for this purpose includes the Loans outstanding thereunder) shall not be less than (1) $2,500,000 5,000,000, in the case of any assignment relating to a Revolving Commitment, or (unless otherwise mutually agreed upon by 2) $1,000,000, in the Borrower and the Administrative Agent)case of any assignment relating to a Term A Commitment or a Term B Commitment;
(B) in the case of any assignment to an Eligible Assignee at the effective time of any such assignment assignment, as determined by the Administrative Agent in accordance with subsection (iv) below, the Lender Register shall be deemed modified to reflect the Commitments of such new Lender and of the existing Lenders;
(C) upon surrender of the old Notes, if any, upon request of the new Lender, new Notes will be issued, at the Borrower’s expense, to such new Lender and to the assigning Lender, to the extent needed to reflect the revised Commitments;; and
(D) unless waived by the Administrative Agent, except in the case of an assignment to another Lender, an Affiliate of such Lender or an Approved Fund with respect to such Lender, or any Lenders in connection with the initial syndication of the Credit Facilities on or after the Closing Date, the Administrative Agent shall receive at the time of each such assignment, from the assigning or assignee Lender, the payment of a non-refundable assignment fee of $3,500; and
3,500 (E) any such assignment shall require the prior written consent (such consent (except with respect to treating multiple contemporaneous assignments to competitors or from Approved Funds of the Borrower) not to be unreasonably withheld or delayed) of:
(1) the Borrower; provided that no consent of the Borrower shall be required a single Lender as one assignment for an assignment (x) by a Lender to any Lender or a U.S. based-Affiliate of any Lender, (y) by a Lender to an Approved Fund and (z) during a Specified Event of Default (unless such assignment is to a Disqualified Lender). Notwithstanding anything in this Section 11.06 to the contrary, if the Borrower has not given the Administrative Agent written notice of its objection to an assignment of Loans within fifteen (15) Business Days after written notice purposes of such assignment, the Borrower shall be deemed to have consented to such assignment;
(2) the Administrative Agent; provided that no consent of the Administrative Agent shall be required for an assignment of a Loan to a Lender, an Affiliate of a Lender or an Approved Fund; and
(3) each LC Issuer and Swing Line Lender; provided that no consent of an LC Issuer or Swing Line Lender shall be required for an assignment of a Loan to a Lender, an Affiliate of a Lender or an Approved Fundrequirement).
(ii) To the extent of any assignment pursuant to this subsection subpart (c), the assigning Lender shall be relieved of its obligations hereunder with respect to its assigned Commitments.
(iii) At the time of each assignment pursuant to this subsection subpart (c) to a Person that is not already a Lender hereunder, the respective assignee Lender shall provide to the Borrower and the Administrative Agent the applicable Internal Revenue Service Forms (and any necessary additional documentation) described in Section 3.02(e3.03(b).. 90 Credit Agreement
(iv) With respect to any Lender, the transfer of any Commitment of such Lender and the rights to the principal of, and interest on, any Loan made pursuant to such Commitment shall not be effective until such transfer is recorded on the Lender Register maintained by the Administrative Agent (on behalf of and acting solely for this purpose as a non-fiduciary agent of the applicable Borrower) with respect to ownership of such Commitment and Loans, including the name Loans and address of the Lenders and the principal amount of the Loans (and stated interest thereon). Prior prior to such recordation, recordation all amounts owing to the transferor with respect to such Commitment and Loans shall remain owing to the transferor. The registration of assignment or transfer of all or part of any Commitments and Loans shall be recorded by the Administrative Agent on the Lender Register only upon the acceptance by the Administrative Agent of a properly executed and delivered Assignment Agreement pursuant to this subsection subpart (c). The entries in the Lender Register shall be conclusive absent manifest error, and the Borrower, the Administrative Agent and each Lender shall treat each person whose name is recorded in the Lender Register as a Lender hereunder for all purposes of this Agreement notwithstanding any notice to the contrary. The Lender Register shall be available for the inspection by the Borrower and any Lender (solely with respect to its own interest in any Loan or Commitment) at any reasonable time and from time to time upon reasonable prior notice.
(v) [Reserved].
(vi) Nothing in this Section 11.06(c) shall prevent or prohibit (A) any Lender that is a bank, trust company or other financial institution from pledging its Notes or Loans to a Federal Reserve Bank or to any Person that extends credit to such Lender in support of borrowings made by such Lender from such Federal Reserve Bank or such other PersonBank, or (B) any Lender that is a trust, limited liability company, partnership partnership, fund or other investment company from pledging its Notes or Loans to a trustee or agent for the benefit of holders of certificates or debt securities issued by it. No such pledge, or any assignment pursuant to or in lieu of an enforcement of such a pledge, shall relieve the transferor Lender from its obligations hereunder. In connection with any assignment of rights and obligations of any Defaulting Lender hereunder, no such assignment shall be effective unless and until, in addition to the other conditions thereto set forth herein, the parties to the assignment shall make such additional payments to the Administrative Agent in an aggregate amount sufficient, upon distribution thereof as appropriate (which may be outright payment, purchases by the assignee of participations or sub-participations, or other compensating actions, including funding, with the consent of the Borrower and the Administrative Agent, the applicable pro rata share of Loans previously requested but not funded by the Defaulting Lender, to each of which the applicable assignee and assignor hereby irrevocably consent), to (x) pay and satisfy in full all payment liabilities then owed by such Defaulting Lender to the Administrative Agent or any Lender hereunder (and interest accrued thereon) and (y) acquire (and fund as appropriate) its full pro rata share of all Loans and participations in Letters of Credit and Swing Loans in accordance with its Applicable Percentage. Notwithstanding the foregoing, in the event that any assignment of rights and obligations of any Defaulting Lender hereunder shall become effective under applicable law without compliance with the provisions of this paragraph, then the assignee of such interest shall be deemed to be a Defaulting Lender for all purposes of this Agreement until such compliance occurs.
Appears in 1 contract
Assignments by Lenders. (i) Any Lender may assign all, or if less than all, a fixed portion, of its Loans, LC Participations, Swing Loan Participations Loans and/or Commitments and its rights and obligations hereunder to one or more Eligible Assignees, each of which shall become a party to this Agreement as a Lender by execution of an Assignment Agreementand Assumption; provided, however, that:
(A) except in the case of (x) of an assignment of the entire remaining amount of the assigning Lender’s Loans and/or Commitments or (y) an assignment to another Lender, an Affiliate of such Lender or an Approved Fund with respect to such Lender, the aggregate amount of the Commitment so assigned (which for this purpose includes the Loans outstanding thereunder) shall not be less than $2,500,000 (unless otherwise mutually agreed upon by the Borrower and the Administrative Agent)5,000,000;
(B) in the case of any assignment to an Eligible Assignee at the time of any such assignment the Lender Register shall be deemed modified to reflect the Commitments of such new Lender and of the existing Lenders;
(C) upon surrender of the old Notes, if any, upon request of the new Lender, new Notes will be issued, at the Borrower’s expense, to such new Lender and to the assigning Lender, to the extent needed to reflect the revised Commitments;; and
(D) unless waived by the Administrative Agent, except in the case of an assignment to another Lender, an Affiliate of such Lender or an Approved Fund with respect to such Lender, or any Lenders in connection with the initial syndication of the Credit Facilities on or after the Closing Date, the Administrative Agent shall receive at the time of each such assignment, from the assigning or assignee Lender, the payment of a non-refundable assignment fee of $3,500; and
(E) any such assignment shall require the prior written consent (such consent (except with respect to assignments to competitors of the Borrower) not to be unreasonably withheld or delayed) of:
(1) the Borrower; provided that no consent of the Borrower shall be required for an assignment (x) by a Lender to any Lender or a U.S. based-Affiliate of any Lender, (y) by a Lender to an Approved Fund and (z) during a Specified Event of Default (unless such assignment is to a Disqualified Lender). Notwithstanding anything in this Section 11.06 to the contrary, if the Borrower has not given the Administrative Agent written notice of its objection to an assignment of Loans within fifteen (15) Business Days after written notice of such assignment, the Borrower shall be deemed to have consented to such assignment;
(2) the Administrative Agent; provided that no consent of the Administrative Agent shall be required for an assignment of a Loan to a Lender, an Affiliate of a Lender or an Approved Fund; and
(3) each LC Issuer and Swing Line Lender; provided that no consent of an LC Issuer or Swing Line Lender shall be required for an assignment of a Loan to a Lender, an Affiliate of a Lender or an Approved Fund.
(ii) To the extent of any assignment pursuant to this subsection subpart (c), the assigning Lender shall be relieved of its obligations hereunder with respect to its assigned Commitments.
(iii) At the time of Prior to each assignment pursuant to this subsection subpart (c) to a Person that is not already a Lender hereunder, the respective assignee Lender shall provide to the Borrower Company and the Administrative Agent the applicable appropriate Internal Revenue Service Forms (and any necessary additional documentation) described in Section 3.02(e3.03 and a Withholding Certificate (and, if applicable an Exemption Certificate). To the extent that an assignment of all or any portion of a Lender’s Commitment and related outstanding Obligations pursuant to this subpart (c) would, at the time of such assignment, result in increased costs under Section 3.01 from those being charged by the respective assigning Lender prior to such assignment, then the Company shall not be obligated to pay such increased costs (although the Borrower shall be obligated to pay any other increased costs of the type described above resulting from changes after the date of the respective assignment).
(iv) With respect to any Lender, the transfer of any Commitment of such Lender and the rights to the principal of, and interest on, any Loan made pursuant to such Commitment shall not be effective until such transfer is recorded on the Lender Register maintained by the Administrative Agent (on behalf of and acting solely for this purpose as a non-fiduciary agent of the applicable Borrower) with respect to ownership of such Commitment and Loans, including the name Loans and address of the Lenders and the principal amount of the Loans (and stated interest thereon). Prior prior to such recordation, recordation all amounts owing to the transferor with respect to such Commitment and Loans shall remain owing to the transferor. The registration of assignment or transfer of all or part of any Commitments and Loans shall be recorded by the Administrative Agent on the Lender Register only upon the acceptance by the Administrative Agent of a properly executed and delivered Assignment Agreement and Assumption pursuant to this subsection subpart (c). The entries in the Lender Register shall be conclusive absent manifest error, and the Borrower, the Administrative Agent and each Lender shall treat each person whose name is recorded in the Lender Register as a Lender hereunder for all purposes of this Agreement notwithstanding any notice to the contrary. The Lender Register shall be available for the inspection by the Borrower and any Lender (solely with respect to its own interest in any Loan or Commitment) at any reasonable time and from time to time upon reasonable prior notice.
(v) [Reserved].
(vi) Nothing in this Section 11.06(c) shall prevent or prohibit (A) any Lender that is a bank, trust company or other financial institution from pledging its Notes or Loans to a Federal Reserve Bank or to any Person that extends credit to such Lender in support of borrowings made by such Lender from such Federal Reserve Bank or such other PersonBank, or (B) any Lender that is a trust, limited liability company, partnership or other investment company from pledging its Notes or Loans to a trustee or agent for the benefit of holders of certificates or debt securities issued by it. No such pledge, or any assignment pursuant to or in lieu of an enforcement of such a pledge, shall relieve the transferor Lender from its obligations hereunder. In connection with any assignment of rights and obligations of any Defaulting Lender hereunder, no such assignment shall be effective unless and until, in addition to the other conditions thereto set forth herein, the parties to the assignment shall make such additional payments to the Administrative Agent in an aggregate amount sufficient, upon distribution thereof as appropriate (which may be outright payment, purchases by the assignee of participations or sub-participations, or other compensating actions, including funding, with the consent of the Borrower and the Administrative Agent, the applicable pro rata share of Loans previously requested but not funded by the Defaulting Lender, to each of which the applicable assignee and assignor hereby irrevocably consent), to (x) pay and satisfy in full all payment liabilities then owed by such Defaulting Lender to the Administrative Agent or any Lender hereunder (and interest accrued thereon) and (y) acquire (and fund as appropriate) its full pro rata share of all Loans and participations in Letters of Credit and Swing Loans in accordance with its Applicable Percentage. Notwithstanding the foregoing, in the event that any assignment of rights and obligations of any Defaulting Lender hereunder shall become effective under applicable law without compliance with the provisions of this paragraph, then the assignee of such interest shall be deemed to be a Defaulting Lender for all purposes of this Agreement until such compliance occurs.
Appears in 1 contract
Assignments by Lenders. Notwithstanding the foregoing, (ix) Any any Lender may assign all or a fixed portion of its Loans and/or Commitment, and its rights and obligations hereunder, to another Lender that is not a Defaulting Lender, or to an Affiliate of any Lender (including itself) that is not a Defaulting Lender and that is a commercial bank, financial institution or other "accredited investor" (as defined in SEC Regulation D), and (y) any Lender may assign all, or if less than all, a fixed portion, equal to at least $5,000,000 in the aggregate for the assigning Lender or assigning Lenders, of its Loans, LC Participations, Swing Loan Participations Loans and/or Commitments Commitment and its rights and obligations hereunder hereunder, to one or more Eligible AssigneesTransferees, each of which assignees shall become a party to this Agreement as a Lender by execution of an Assignment Agreement; provided, however, provided that:
(A) except in the case of (x) an assignment of the entire remaining amount of the assigning Lender’s Loans and/or Commitments or (y) an assignment to another Lender, an Affiliate of such Lender or an Approved Fund with respect to such Lender, the aggregate amount of the Commitment so assigned (which for this purpose includes the Loans outstanding thereunder) shall not be less than $2,500,000 (unless otherwise mutually agreed upon by the Borrower and the Administrative Agent);
(Bi) in the case of any assignment of a portion of any Loans and/or Commitment of a Lender, such Lender shall retain a minimum fixed portion of all Loans and Commitments equal to at least $5,000,000;
(ii) the Swing Line Lender may only assign its Swing Line Revolving Commitment and its Swing Line Revolving Loans as an Eligible Assignee entirety and only if the assignee thereof is or becomes a Lender with a General Revolving Commitment;
(iii) at the time of any such assignment the Lender Register shall be deemed modified to reflect the Commitments of such new Lender and of the existing Lenders;
(Civ) upon surrender of the old Notes, if any, upon request of the new Lender, new Notes will be issued, at the Borrower’s expense, issued to such new Lender and to the assigning Lender, such new Notes to be in conformity with the requirements of section 2.6 (with appropriate modifications) to the extent needed to reflect the revised Commitments;
(Dv) unless waived by the Administrative Agent, except in the case of an assignment to another Lenderclause (y) only, an Affiliate the consent of such Lender or an Approved Fund with respect to such Lender, or any Lenders the Administrative Agent shall be required in connection with the initial syndication of the Credit Facilities on any such assignment (which consent shall not be unreasonably withheld or after the Closing Date, delayed); and
(vi) the Administrative Agent shall receive at the time of each such assignment, from the assigning or assignee Lender, the payment of a non-refundable assignment fee of $3,500; and
(E) any , provided further, that such transfer or assignment shall require will not be effective until the prior written consent (such consent (except with Assignment Agreement in respect to assignments to competitors of the Borrower) not to be unreasonably withheld or delayed) of:
(1) the Borrower; provided that no consent of the Borrower shall be required for an assignment (x) thereof is recorded by a Lender to any Lender or a U.S. based-Affiliate of any Lender, (y) by a Lender to an Approved Fund and (z) during a Specified Event of Default (unless such assignment is to a Disqualified Lender). Notwithstanding anything in this Section 11.06 to the contrary, if the Borrower has not given the Administrative Agent written notice of its objection to an assignment of Loans within fifteen (15) Business Days after written notice of such assignment, on the Borrower shall be deemed to have consented to such assignment;
(2) the Administrative Agent; Lender Register maintained by it as provided that no consent of the Administrative Agent shall be required for an assignment of a Loan to a Lender, an Affiliate of a Lender or an Approved Fund; and
(3) each LC Issuer and Swing Line Lender; provided that no consent of an LC Issuer or Swing Line Lender shall be required for an assignment of a Loan to a Lender, an Affiliate of a Lender or an Approved Fund.
(ii) herein. To the extent of any assignment pursuant to this subsection (csection 13.4(c), the assigning Lender shall be relieved of its obligations hereunder with respect to its assigned Commitments.
(iii) . At the time of each assignment pursuant to this subsection (csection 13.4(c) to a Person person that is not already a Lender hereunderhereunder and that is not a United States person (as such term is defined in section 7701(a)(30) of the Code) for Federal income tax purposes, the respective assignee Lender shall provide to the Borrower and the Administrative Agent the applicable appropriate Internal Revenue Service Forms (and any necessary additional documentationand, if applicable a Section 6.4(b)(ii) Certificate) described in Section 3.02(esection 6.4(b).
(iv. To the extent that an assignment of all or any portion of a Lender's Commitment and related outstanding Obligations pursuant to this section 13.4(c) With respect to any Lenderwould, at the transfer of any Commitment time of such assignment, result in increased costs under section 2.10 from those being charged by the respective assigning Lender and the rights to the principal of, and interest on, any Loan made pursuant prior to such Commitment assignment, then the Borrower shall not be effective until obligated to pay such transfer is recorded on increased costs (although the Lender Register maintained by the Administrative Agent (on behalf of and acting solely for this purpose as a non-fiduciary agent Borrower shall be obligated to pay any other increased costs of the applicable Borrower) with respect type referred to ownership of such Commitment and Loans, including above in this sentence resulting from changes after the name and address date of the Lenders and the principal amount of the Loans (and stated interest thereonrespective assignment). Prior to such recordation, all amounts owing to the transferor with respect to such Commitment and Loans shall remain owing to the transferor. The registration of assignment or transfer of all or part of any Commitments and Loans shall be recorded by the Administrative Agent on the Lender Register only upon the acceptance by the Administrative Agent of a properly executed and delivered Assignment Agreement pursuant to this subsection (c). The entries in the Lender Register shall be conclusive absent manifest error, and the Borrower, the Administrative Agent and each Lender shall treat each person whose name is recorded in the Lender Register as a Lender hereunder for all purposes of this Agreement notwithstanding any notice to the contrary. The Lender Register shall be available for the inspection by the Borrower and any Lender (solely with respect to its own interest in any Loan or Commitment) at any reasonable time and from time to time upon reasonable prior notice.
(v) [Reserved].
(vi) Nothing in this Section 11.06(csection 13.4(c) shall prevent or prohibit prohibit: (Ai) any Lender that is a bank, trust company or other financial institution from pledging its Notes or Loans to a Federal Reserve Bank or to any Person that extends credit to such Lender in support of borrowings made by such Lender from such Federal Reserve Bank or such other Person, Bank; or (Bii) any Lender that is a trust, limited liability company, partnership or other investment company from pledging its Notes or Loans to a trustee or agent for the benefit of holders of certificates or debt securities issued by it. No such pledge, or any assignment pursuant to or in lieu of an enforcement of such a pledge, shall relieve the transferor Lender from its obligations hereunder. In connection with any assignment of rights and obligations of any Defaulting Lender hereunder, no such assignment shall be effective unless and until, in addition to the other conditions thereto set forth herein, the parties to the assignment shall make such additional payments to the Administrative Agent in an aggregate amount sufficient, upon distribution thereof as appropriate (which may be outright payment, purchases by the assignee of participations or sub-participations, or other compensating actions, including funding, with the consent of the Borrower and the Administrative Agent, the applicable pro rata share of Loans previously requested but not funded by the Defaulting Lender, to each of which the applicable assignee and assignor hereby irrevocably consent), to (x) pay and satisfy in full all payment liabilities then owed by such Defaulting Lender to the Administrative Agent or any Lender hereunder (and interest accrued thereon) and (y) acquire (and fund as appropriate) its full pro rata share of all Loans and participations in Letters of Credit and Swing Loans in accordance with its Applicable Percentage. Notwithstanding the foregoing, in the event that any assignment of rights and obligations of any Defaulting Lender hereunder shall become effective under applicable law without compliance with the provisions of this paragraph, then the assignee of such interest shall be deemed to be a Defaulting Lender for all purposes of this Agreement until such compliance occurs.
Appears in 1 contract
Assignments by Lenders. (i) Any Lender may assign all, or if less than all, a fixed portion, of its Loans, LC Participations, Swing Loan Participations and/or Commitments and its rights and obligations hereunder to one or more Eligible Assignees, each of which shall become a party to this Agreement as a Lender by execution of an Assignment Agreement; provided, however, that:
(A) except in the case of (x) an assignment of the entire remaining amount of the assigning Lender’s Loans and/or Commitments or (y) an assignment to another Lender, an Affiliate of such Lender or an Approved Fund with respect to such Lender, the aggregate amount of the Commitment so assigned (which for this purpose includes the Loans outstanding thereunder) shall not be less than $2,500,000 7,500,000 (unless otherwise mutually agreed upon by the Borrower and the Administrative Agentor an integral multiple of $1,000,000 in excess thereof);
(B) in the case of any assignment to an Eligible Assignee at the time of any such assignment the Lender Register shall be deemed modified to reflect the Commitments of such new Lender and of the existing LendersLenders (and no assignment shall be effective hereunder unless recorded in the Lender Register as provided herein);
(C) upon surrender of the old Notes, if any, upon request of the new Lender, new Notes will be issued, at the Borrower’s expense, to such new Lender and to the assigning Lender, to the extent needed to reflect the revised Commitments;
(D) unless waived by the Administrative Agent, except in the case of an assignment to another Lender, an Affiliate of such Lender or an Approved Fund with respect to such Lender, or any Lenders in connection with the initial syndication of the Credit Facilities on or after the Closing Date, the Administrative Agent shall receive at the time of each such assignment, from the assigning or assignee Lender, the payment of a non-refundable assignment fee of $3,5001,000;
(E) no such assignment shall be made to any Defaulting Lender or any Impacted Lender; and
(EF) in connection with any assignment of rights and obligations of any Defaulting Lender or Impacted Lender hereunder, no such assignment shall require the prior written consent (such consent (except with respect to assignments to competitors of the Borrower) not to be unreasonably withheld or delayed) of:
(1) the Borrower; provided that no consent of the Borrower shall be required for an assignment (x) by a Lender to any Lender or a U.S. based-Affiliate of any Lendereffective unless and until, (y) by a Lender to an Approved Fund and (z) during a Specified Event of Default (unless such assignment is to a Disqualified Lender). Notwithstanding anything in this Section 11.06 addition to the contraryother conditions thereto set forth herein, if the Borrower has not given parties to the assignment shall make such additional payments to the Administrative Agent written notice in an aggregate amount sufficient, upon distribution thereof as appropriate (which may be outright payment, purchases by the assignee of its objection participations or subparticipations, or other compensating actions, to an assignment each of Loans within fifteen (15) Business Days after written notice of such assignmentwhich the applicable assignees and assignor hereby irrevocably consent), the Borrower shall be deemed to have consented pay and satisfy in full all Defaulted Credits and Defaulted Payments and interest accrued thereon attributable to such assignment;
(2) the Administrative Agent; provided that no consent of the Administrative Agent shall be required for an assignment of a Loan to a Defaulting Lender or Impacted Lender, an Affiliate of a Lender or an Approved Fund; and
(3) each LC Issuer and Swing Line Lender; provided that no consent of an LC Issuer or Swing Line Lender shall be required for an assignment of a Loan to a Lender, an Affiliate of a Lender or an Approved Fundas the case may be.
(ii) To the extent of any assignment pursuant to this subsection subpart (c), the assigning Lender shall be relieved of its obligations hereunder with respect to its assigned Commitments.
(iii) At the time of each assignment pursuant to this subsection subpart (c) ), to a Person that is not already a Lender hereunder, the respective assignee Lender shall provide to the Borrower and the Administrative Agent the applicable Internal Revenue Service Forms (and any necessary additional documentation) described in Section 3.02(e3.03(b) or (c), as appropriate.
(iv) With respect to any Lender, the transfer of any Commitment of such Lender and the rights to the principal of, and interest on, any Loan made pursuant to such Commitment shall not be effective until such transfer is recorded on the Lender Register maintained by the Administrative Agent (on behalf of and Agent, acting solely for this purpose as a non-fiduciary an agent of the applicable Borrower) , with respect to ownership of such Commitment and Loans, including the name Loans and address of the Lenders and the principal amount of the Loans (and stated interest thereon). Prior prior to such recordation, recordation all amounts owing to the transferor with respect to such Commitment and Loans shall remain owing to the transferor. The registration of assignment or transfer of all or part of any Commitments and Loans shall be recorded by the Administrative Agent on the Lender Register only upon the acceptance by the Administrative Agent of a properly executed and delivered Assignment Agreement pursuant to this subsection subpart (c). The entries in the Lender Register shall be conclusive absent manifest error, and the Borrower, the Administrative Agent and each Lender shall treat each person whose name is recorded in the Lender Register as a Lender hereunder for all purposes of this Agreement notwithstanding any notice to the contrary. The Lender Register shall be available for the inspection by the Borrower and any Lender (solely with respect to its own interest in any Loan or Commitment) at any reasonable time and from time to time upon reasonable prior notice.
(v) [Reserved].
(vi) Nothing in this Section 11.06(c) shall prevent or prohibit (A) any Lender that is a bank, trust company or other financial institution from pledging its Notes or Loans to a Federal Reserve Bank or to any Person that extends credit to such Lender in support of borrowings made by such Lender from such Federal Reserve Bank or such other PersonBank, or (B) any Lender that is a trust, limited liability company, partnership or other investment company from pledging its Notes or Loans to a trustee or agent for the benefit of holders of certificates or debt securities issued by it. No such pledge, or any assignment pursuant to or in lieu of an enforcement of such a pledge, shall relieve the transferor Lender from its obligations hereunder. In connection with any assignment of rights and obligations of any Defaulting Lender hereunder, no such assignment shall be effective unless and until, in addition to the other conditions thereto set forth herein, the parties to the assignment shall make such additional payments to the Administrative Agent in an aggregate amount sufficient, upon distribution thereof as appropriate (which may be outright payment, purchases by the assignee of participations or sub-participations, or other compensating actions, including funding, with the consent of the Borrower and the Administrative Agent, the applicable pro rata share of Loans previously requested but not funded by the Defaulting Lender, to each of which the applicable assignee and assignor hereby irrevocably consent), to (x) pay and satisfy in full all payment liabilities then owed by such Defaulting Lender to the Administrative Agent or any Lender hereunder (and interest accrued thereon) and (y) acquire (and fund as appropriate) its full pro rata share of all Loans and participations in Letters of Credit and Swing Loans in accordance with its Applicable Percentage. Notwithstanding the foregoing, in the event that any assignment of rights and obligations of any Defaulting Lender hereunder shall become effective under applicable law without compliance with the provisions of this paragraph, then the assignee of such interest shall be deemed to be a Defaulting Lender for all purposes of this Agreement until such compliance occurs.
Appears in 1 contract
Assignments by Lenders. (i) Any Lender may assign all, or if less than all, a fixed portion, of its Loans, LC Participations, Swing Loan Participations Loans and/or Commitments Revolving Commitment and its rights and obligations hereunder to one or more Eligible Assignees, each of which shall become a party to this Agreement as a Lender by execution of an Assignment Agreement; provided, however, that:
(A) except in the case of (x) an assignment of the entire remaining amount of the assigning Lender’s Loans and/or Revolving Commitments or (y) an assignment to another Lender, an Affiliate of such Lender or an Approved Fund with respect to such Lender, the aggregate amount of the Revolving Commitment so assigned (which for this purpose includes the Loans outstanding thereunder) shall not be less than $2,500,000 (unless otherwise mutually agreed upon by the Borrower and the Administrative Agent)5,000,000;
(B) in the case of any assignment to an Eligible Assignee at the time of any such assignment the Lender Register shall be deemed modified to reflect the Commitments of such new Lender and of the existing Lenders;
(C) upon surrender of the old Revolving Facility Notes, if any, upon request of the new Lender, new Revolving Facility Notes will be issued, at the Borrower’s expense, to such new Lender and to the assigning Lender, to the extent needed to reflect the revised Revolving Commitments;; and
(DC) unless waived by the Administrative Agent, except in the case of an assignment to another Lender, an Affiliate of such Lender or an Approved Fund with respect to such Lender, or any Lenders in connection with the initial syndication of the Credit Facilities on or after the Closing Date, the Administrative Agent shall receive at the time of each such assignment, from the assigning or assignee Lender, the payment of a non-refundable assignment fee of $3,500; and
(E) any such assignment shall require the prior written consent (such consent (except with respect to assignments to competitors of the Borrower) not to be unreasonably withheld or delayed) of:
(1) the Borrower; provided that no consent of the Borrower shall be required for an assignment (x) by a Lender to any Lender or a U.S. based-Affiliate of any Lender, (y) by a Lender to an Approved Fund and (z) during a Specified Event of Default (unless such assignment is to a Disqualified Lender). Notwithstanding anything in this Section 11.06 to the contrary, if the Borrower has not given the Administrative Agent written notice of its objection to an assignment of Loans within fifteen (15) Business Days after written notice of such assignment, the Borrower shall be deemed to have consented to such assignment;
(2) the Administrative Agent; provided that no consent of the Administrative Agent shall be required for an assignment of a Loan to a Lender, an Affiliate of a Lender or an Approved Fund; and
(3) each LC Issuer and Swing Line Lender; provided that no consent of an LC Issuer or Swing Line Lender shall be required for an assignment of a Loan to a Lender, an Affiliate of a Lender or an Approved Fund4,500.
(ii) To the extent of any assignment pursuant to this subsection subpart (c), the assigning Lender shall be relieved of its obligations hereunder with respect to its assigned CommitmentsRevolving Commitments provided, that except to the extent otherwise expressly agreed by the affected parties, no assignment by a Defaulting Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender’s having been a Defaulting Lender.
(iii) At the time of each assignment pursuant to this subsection subpart (c) ), to a Person that is not already a Lender hereunderhereunder and that is not a U.S. Person for Federal income tax purposes, the respective assignee Lender shall provide to the Borrower and the Administrative Agent the applicable Internal Revenue Service Forms (and any necessary additional documentation) described in Section 3.02(e3.03(g).
(iv) With respect to any Lender, the transfer of any Revolving Commitment of such Lender and the rights to the principal of, and interest on, any Loan made pursuant to such Revolving Commitment shall not be effective until such transfer is recorded on the Lender Register maintained by the Administrative Agent (on behalf of and acting solely for this purpose as a non-fiduciary agent of the applicable Borrower) with respect to ownership of such Revolving Commitment and Loans, including the name and address of the Lenders and the principal amount of the Loans (and stated interest thereon). Prior to such recordation, all amounts owing to the transferor with respect to such Revolving Commitment and Loans shall remain owing to the transferor. The registration of assignment or transfer of all or part of any Revolving Commitments and Loans shall be recorded by the Administrative Agent on the Lender Register only upon the acceptance by the Administrative Agent of a properly executed and delivered Assignment Agreement pursuant to this subsection subpart (c). The entries in the Lender Register shall be conclusive absent manifest error, and the Borrower, the Administrative Agent and each Lender shall treat each person whose name is recorded in the Lender Register as a Lender hereunder for all purposes of this Agreement notwithstanding any notice to the contrary. The Lender Register shall be available for the inspection by the Borrower and any Lender (solely with respect to its own interest in any Loan or Commitment) at any reasonable time and from time to time upon reasonable prior notice.
(v) [Reserved].
(vi) Nothing in this Section 11.06(c) shall prevent or prohibit (A) any Lender that is a bank, trust company or other financial institution from pledging its Notes Revolving Facility Note or Loans to a Federal Reserve Bank or to any Person that extends credit to such Lender in support of borrowings made by such Lender from such Federal Reserve Bank or such other Person, or (B) any Lender that is a trust, limited liability company, partnership or other investment company from pledging its Notes Revolving Facility Note or Loans to a trustee or agent for the benefit of holders of certificates or debt securities issued by it. No such pledge, or any assignment pursuant to or in lieu of an enforcement of such a pledge, shall relieve the transferor Lender from its obligations hereunder. .
(vi) In connection with any assignment of rights and obligations of any Defaulting Lender hereunder, no such assignment shall be effective unless and until, in addition to the other conditions thereto set forth herein, the parties to the assignment shall make such additional payments to the Administrative Agent in an aggregate amount sufficient, upon distribution thereof as appropriate (which may be outright payment, purchases by the assignee of participations or sub-participationssubparticipations, or other compensating actions, including funding, with the consent of the Borrower and the Administrative Agent, the applicable pro rata share of Loans previously requested but not funded by the Defaulting Lender, to each of which the applicable assignee and assignor hereby irrevocably consent), to (x) pay and satisfy in full all payment liabilities then owed by such Defaulting Lender to the Administrative Agent or any Agent, the Swing Line Lender and each other Lender hereunder (and interest accrued thereon) ), and (y) acquire (and fund as appropriate) its full pro rata share of all Loans and participations in Letters of Credit and Swing Line Loans in accordance with its Applicable Revolving Facility Percentage. Notwithstanding the foregoing, in the event that any assignment of rights and obligations of any Defaulting Lender hereunder shall become effective under applicable law without compliance with the provisions of this paragraph, then the assignee of such interest shall be deemed to be a Defaulting Lender for all purposes of this Agreement until such compliance occurs. Notwithstanding anything contained herein, no Lender may assign, sell, negotiate or otherwise transfer (a “Sale”) its Loans and/or Revolving Commitment or participations in Swing Line Loans to Advisor, PAC REIT, any other Credit Party or any Affiliate of any of the foregoing.
Appears in 1 contract
Samples: Credit Agreement (Preferred Apartment Communities Inc)
Assignments by Lenders. (i) Any Lender may assign all, or if less than all, a fixed portion, any portion of its Loans, LC Participations, Swing Loan Participations and/or Commitments and its rights and obligations hereunder to one or more Eligible Assignees, each of which shall become a party to this Agreement as a Lender by execution of an Assignment Agreement; provided, however, that:
(A) except in the case of (x) of an assignment of the entire remaining amount of the assigning Lender’s Loans and/or Commitments or (y) an assignment to another Lender, an Affiliate of such Lender or an Approved Fund with respect to such of any Lender, the aggregate amount of the Commitment so assigned (which for this purpose includes the Loans outstanding thereunder) shall not be less than $2,500,000 (unless otherwise mutually agreed upon by the Borrower and the Administrative Agent)5,000,000;
(B) in the case of any assignment to an Eligible Assignee at the effective time of any such assignment assignment, as determined by the Administrative Agent in accordance with subsection (iv) below, the Lender Register shall be deemed modified to reflect the Commitments of such new Lender and of the existing Lenders;
(C) upon surrender of the old Notes, if any, upon request of the new Lender, new Notes will be issued, at the applicable Borrower’s expense, to such new Lender and to the assigning Lender, to the extent needed to reflect the revised Commitments;; and
(D) unless waived by the Administrative Agent, except in the case of an assignment to another Lender, an Affiliate of such Lender or an Approved Fund with respect to such Lender, or any Lenders in connection with the initial syndication of the Credit Facilities on or after the Closing Date, the Administrative Agent shall receive at the time of each such assignment, from the assigning or assignee Lender, the payment of a non-refundable assignment fee of $3,500; and
3,500 (E) any such assignment shall require the prior written consent (such consent (except with respect to treating multiple contemporaneous assignments to competitors or from Approved Funds of the Borrower) not to be unreasonably withheld or delayed) of:
(1) the Borrower; provided that no consent of the Borrower shall be required a single Lender as one assignment for an assignment (x) by a Lender to any Lender or a U.S. based-Affiliate of any Lender, (y) by a Lender to an Approved Fund and (z) during a Specified Event of Default (unless such assignment is to a Disqualified Lender). Notwithstanding anything in this Section 11.06 to the contrary, if the Borrower has not given the Administrative Agent written notice of its objection to an assignment of Loans within fifteen (15) Business Days after written notice purposes of such assignment, the Borrower shall be deemed to have consented to such assignment;
(2) the Administrative Agent; provided that no consent of the Administrative Agent shall be required for an assignment of a Loan to a Lender, an Affiliate of a Lender or an Approved Fund; and
(3) each LC Issuer and Swing Line Lender; provided that no consent of an LC Issuer or Swing Line Lender shall be required for an assignment of a Loan to a Lender, an Affiliate of a Lender or an Approved Fundrequirement).
(ii) To the extent of any assignment pursuant to this subsection subpart (c), the assigning Lender shall be relieved of its obligations hereunder with respect to its assigned Commitments.
(iii) At the time of each assignment pursuant to this subsection subpart (c) to a Person that is not already a Lender hereunder, the respective assignee Lender shall provide to the Borrower Borrowers and the Administrative Agent the applicable Internal Revenue Service Forms (and any necessary additional documentation) described in Section 3.02(e3.03(b).
(iv) With respect to any Lender, the transfer of any Commitment of such Lender and the rights to the principal of, and interest on, any Loan made pursuant to such Commitment (whether or not evidenced by a Note) shall not be effective until such transfer is recorded on the Lender Register maintained by the Administrative Agent (on behalf of and acting solely for this purpose as a non-fiduciary agent of the applicable Borrower) with respect to ownership of such Commitment and Loans, including the name Loans and address of the Lenders and the principal amount of the Loans (and stated interest thereon). Prior prior to such recordation, recordation all amounts owing to the transferor with respect to such Commitment and Loans shall remain owing to the transferor. The registration of assignment or transfer of all or part of any Commitments and Loans shall be recorded by the Administrative Agent on the Lender Register only upon the acceptance by the Administrative Agent of a properly executed and delivered Assignment Agreement pursuant to this subsection subpart (c). The entries in the Lender Register shall be conclusive absent manifest error, and the Borrower, the Administrative Agent and each Lender shall treat each person whose name is recorded in the Lender Register as a Lender hereunder for all purposes of this Agreement notwithstanding any notice to the contrary. The Lender Register shall be available for the inspection by the Borrower and any Lender (solely with respect to its own interest in any Loan or Commitment) at any reasonable time and from time to time upon reasonable prior notice.
(v) [Reserved].
(vi) Nothing in this Section 11.06(c) shall prevent or prohibit (A) any Lender that is a bank, trust company or other financial institution from pledging its Notes or Loans to a Federal Reserve Bank or to any Person that extends credit to such Lender in support of borrowings made by such Lender from such Federal Reserve Bank or such other PersonBank, or (B) any Lender that is a trust, limited liability company, partnership partnership, fund or other investment company from pledging its Notes or Loans to a trustee or agent for the benefit of holders of certificates or debt securities issued by it. No such pledge, or any assignment pursuant to or in lieu of an enforcement of such a pledge, shall relieve the transferor Lender from its obligations hereunder. In connection with any assignment of rights and obligations of any Defaulting Lender hereunder, no such assignment shall be effective unless and until, in addition to the other conditions thereto set forth herein, the parties to the assignment shall make such additional payments to the Administrative Agent in an aggregate amount sufficient, upon distribution thereof as appropriate (which may be outright payment, purchases by the assignee of participations or sub-participations, or other compensating actions, including funding, with the consent of the Borrower and the Administrative Agent, the applicable pro rata share of Loans previously requested but not funded by the Defaulting Lender, to each of which the applicable assignee and assignor hereby irrevocably consent), to (x) pay and satisfy in full all payment liabilities then owed by such Defaulting Lender to the Administrative Agent or any Lender hereunder (and interest accrued thereon) and (y) acquire (and fund as appropriate) its full pro rata share of all Loans and participations in Letters of Credit and Swing Loans in accordance with its Applicable Percentage. Notwithstanding the foregoing, in the event that any assignment of rights and obligations of any Defaulting Lender hereunder shall become effective under applicable law without compliance with the provisions of this paragraph, then the assignee of such interest shall be deemed to be a Defaulting Lender for all purposes of this Agreement until such compliance occurs.
Appears in 1 contract
Assignments by Lenders. (i) Any Lender may assign all, or if less than all, a fixed portion, of its Loans, LC Participations, Swing Loan Participations and/or Commitments and its rights and obligations hereunder to one or more Eligible Assignees, each of which shall become a party to this Agreement as a Lender by execution of an Assignment Agreement; provided, however, that:
(A) except in the case of (x) an assignment of the entire remaining amount of the assigning Lender’s Loans and/or Commitments or (y) an assignment to another Lender, an Affiliate of such Lender or an Approved Fund with respect to such Lender, the aggregate amount of the Commitment so assigned (which for this purpose includes the Loans outstanding thereunder) shall not be less than $2,500,000 (unless otherwise mutually agreed upon by the Borrower and the Administrative Agent)5,000,000;
(B) in the case of any assignment to an Eligible Assignee at the time of any such assignment the Lender Register shall be deemed modified to reflect the Commitments of such new Lender and of the existing Lenders;
(C) upon surrender of the old Notes, if any, upon request of the new Lender, new Notes will be issued, at the Borrower’s Borrowers’ expense, to such new Lender and to the assigning Lender, to the extent needed to reflect the revised Commitments;; and
(D) unless waived by the Administrative Agent, except in the case of an assignment to another Lender, an Affiliate of such Lender or an Approved Fund with respect to such Lender, or any Lenders in connection with the initial syndication of the Credit Facilities on or after the Closing Date, the Administrative Agent shall receive at the time of each such assignment, from the assigning or assignee Lender, the payment of a non-refundable assignment fee of $3,500; and
(E) any such assignment shall require the prior written consent (such consent (except with respect to assignments to competitors of the Borrower) not to be unreasonably withheld or delayed) of:
(1) the Borrower; provided that no consent of the Borrower shall be required for an assignment (x) by a Lender to any Lender or a U.S. based-Affiliate of any Lender, (y) by a Lender to an Approved Fund and (z) during a Specified Event of Default (unless such assignment is to a Disqualified Lender). Notwithstanding anything in this Section 11.06 to the contrary, if the Borrower has not given the Administrative Agent written notice of its objection to an assignment of Loans within fifteen (15) Business Days after written notice of such assignment, the Borrower shall be deemed to have consented to such assignment;
(2) the Administrative Agent; provided that no consent of the Administrative Agent shall be required for an assignment of a Loan to a Lender, an Affiliate of a Lender or an Approved Fund; and
(3) each LC Issuer and Swing Line Lender; provided that no consent of an LC Issuer or Swing Line Lender shall be required for an assignment of a Loan to a Lender, an Affiliate of a Lender or an Approved Fund.
(ii) To the extent of any assignment pursuant to this subsection subpart (c), the assigning Lender shall be relieved of its obligations hereunder with respect to its assigned Commitments.
(iii) At the time of each assignment pursuant to this subsection subpart (c) ), to a Person that is not already a Lender hereunderhereunder and that is not a United States Person (as such term is defined in Section 7701(a)(30) of the Code) for Federal income tax purposes, the respective assignee Lender shall provide to the Borrower Borrowers and the Administrative Agent the applicable Internal Revenue Service Forms (and any necessary additional documentation) described in Section 3.02(e3.03(b).
(iv) With respect to any Lender, the transfer of any Commitment of such Lender and the rights to the principal of, and interest on, any Loan made pursuant to such Commitment shall not be effective until such transfer is recorded on the Lender Register maintained by the Administrative Agent (on behalf of and acting solely for this purpose as a non-fiduciary agent of the applicable BorrowerBorrowers) with respect to ownership of such Commitment and Loans, including the name and address of the Lenders and the principal amount of the Loans (and stated interest thereon). Prior to such recordation, all amounts owing to the transferor with respect to such Commitment and Loans shall remain owing to the transferor. The registration of assignment or transfer of all or part of any Commitments and Loans shall be recorded by the Administrative Agent on the Lender Register only upon the acceptance by the Administrative Agent of a properly executed and delivered Assignment Agreement pursuant to this subsection subpart (c). The entries in the Lender Register shall be conclusive absent manifest error, and the Borrower, the Administrative Agent and each Lender shall treat each person whose name is recorded in the Lender Register as a Lender hereunder for all purposes of this Agreement notwithstanding any notice to the contrary. The Lender Register shall be available for the inspection by the Borrower and any Lender (solely with respect to its own interest in any Loan or Commitment) Borrowers at any reasonable time and from time to time upon reasonable prior notice.
(v) [Reserved].
(vi) Nothing in this Section 11.06(c) shall prevent or prohibit (A) any Lender that is a bank, trust company or other financial institution from pledging its Notes or Loans to a Federal Reserve Bank or to any Person that extends credit to such Lender in support of borrowings made by such Lender from such Federal Reserve Bank or such other Person, or (B) any Lender that is a trust, limited liability company, partnership or other investment company from pledging its Notes or Loans to a trustee or agent for the benefit of holders of certificates or debt securities issued by it. No such pledge, or any assignment pursuant to or in lieu of an enforcement of such a pledge, shall relieve the transferor Lender from its obligations hereunder. In connection with any assignment of rights and obligations of any Defaulting Lender hereunder, no such assignment shall be effective unless and until, in addition to the other conditions thereto set forth herein, the parties to the assignment shall make such additional payments to the Administrative Agent in an aggregate amount sufficient, upon distribution thereof as appropriate (which may be outright payment, purchases by the assignee of participations or sub-participations, or other compensating actions, including funding, with the consent of the Borrower and the Administrative Agent, the applicable pro rata share of Loans previously requested but not funded by the Defaulting Lender, to each of which the applicable assignee and assignor hereby irrevocably consent), to (x) pay and satisfy in full all payment liabilities then owed by such Defaulting Lender to the Administrative Agent or any Lender hereunder (and interest accrued thereon) and (y) acquire (and fund as appropriate) its full pro rata share of all Loans and participations in Letters of Credit and Swing Loans in accordance with its Applicable Percentage. Notwithstanding the foregoing, in the event that any assignment of rights and obligations of any Defaulting Lender hereunder shall become effective under applicable law without compliance with the provisions of this paragraph, then the assignee of such interest shall be deemed to be a Defaulting Lender for all purposes of this Agreement until such compliance occurs.
Appears in 1 contract
Assignments by Lenders. (i) Any Lender may assign all, to one or if less than all, more assignees all or a fixed portion, portion of its Loans, LC Participations, Swing Loan Participations and/or Commitments and its rights and obligations hereunder to one or more Eligible Assignees, each of which shall become a party to under this Agreement as (including all or a portion of its Commitment and the Loans at the time owing to it) to other Lenders, their Affiliates, a Related Fund of the assigning Lender by execution or another Lender or to any Federal Reserve Bank without restriction, to other financial institutions or to any entity that is regularly engaged in making, purchasing or investing in loans or securities with the consent of an Assignment Agreement; providedthe Borrower (subject to the final proviso hereto) and the Administrative Agent, howeverin each case not to be unreasonably withheld, provided that:
(Ai) except in the case of an assignment to a Lender, an Affiliate of a Lender or a Related Fund of the assigning Lender or another Lender in circumstances where the Borrower would not incur increased costs as a result of such assignment, each of the Borrower and the Administrative Agent (xand, in the case of an assignment of all or a portion of a Revolving Commitment or any Lender's obligations in respect of its LC Exposure or Swingline Exposure, each Issuing Bank and the Swingline Lender) must give their prior written consent to such assignment (which consent shall not be unreasonably withheld),
(ii) except in the case of an assignment to a Lender, an Affiliate of a Lender or a Related Fund of the assigning Lender or another Lender, or an assignment of the entire remaining amount of the assigning Lender’s 's Commitment or Loans, the amount of the Commitment or Loans and/or Commitments or of the assigning Lender subject to each such assignment (y) an assignment to another Lender, an Affiliate determined as of such Lender or an Approved Fund the date the Assignment and Acceptance with respect to such Lender, assignment is delivered to the aggregate amount of the Commitment so assigned (which for this purpose includes the Loans outstanding thereunderAdministrative Agent) shall not be less than $2,500,000 5,000,000 (unless otherwise mutually agreed upon by the Borrower and the Administrative Agent);
(B) in the case of any assignment to an Eligible Assignee at the time of any such assignment the Lender Register shall be deemed modified to reflect the of Revolving Loans or Revolving Commitments of such new Lender and of the existing Lenders;
(C) upon surrender of the old Notes, if any, upon request of the new Lender, new Notes will be issued, at the Borrower’s expense, to such new Lender and to the assigning Lender, to the extent needed to reflect the revised or Term Loans or Term Loan Commitments;
(D) unless waived by the Administrative Agent, except in the case of an assignment to another Lender, an Affiliate of such Lender or an Approved Fund with respect to such Lender, or any Lenders in connection with the initial syndication of the Credit Facilities on or after the Closing Date, the Administrative Agent shall receive at the time of each such assignment, from the assigning or assignee Lender, the payment of a non-refundable assignment fee of $3,500; and
(E) any such assignment shall require the prior written consent (such consent (except with respect to assignments to competitors of the Borrower) not to be unreasonably withheld or delayed) of:
(1) the Borrower; provided that no consent of the Borrower shall be required for an assignment (x) by a Lender to any Lender or a U.S. based-Affiliate of any Lender, (y) by a Lender to an Approved Fund and (z) during a Specified Event of Default (unless such assignment is to a Disqualified Lender). Notwithstanding anything in this Section 11.06 to the contrary, if the Borrower has not given the Administrative Agent written notice of its objection to an assignment of Loans within fifteen (15) Business Days after written notice of such assignment, the Borrower shall be deemed to have consented to such assignment;
(2) the Administrative Agent; provided that no consent of the Administrative Agent shall be required for an assignment of a Loan to a Lender, an Affiliate of a Lender or an Approved Fund; and
(3) each LC Issuer and Swing Line Lender; provided that no consent of an LC Issuer or Swing Line Lender shall be required for an assignment of a Loan to a Lender, an Affiliate of a Lender or an Approved Fund.
(ii) To the extent of any assignment pursuant to this subsection (c), the assigning Lender shall be relieved unless each of its obligations hereunder with respect to its assigned Commitments.
(iii) At the time of each assignment pursuant to this subsection (c) to a Person that is not already a Lender hereunder, the respective assignee Lender shall provide to the Borrower and the Administrative Agent the applicable Internal Revenue Service Forms (and any necessary additional documentation) described in Section 3.02(e).otherwise consent,
(iviii) With respect to any Lender, the transfer each partial assignment shall be made as an assignment of any Commitment of such Lender and the rights to the principal of, and interest on, any Loan made pursuant to such Commitment shall not be effective until such transfer is recorded on the Lender Register maintained by the Administrative Agent (on behalf of and acting solely for this purpose as a non-fiduciary agent of the applicable Borrower) with respect to ownership of such Commitment and Loans, including the name and address of the Lenders and the principal amount of the Loans (and stated interest thereon). Prior to such recordation, all amounts owing to the transferor with respect to such Commitment and Loans shall remain owing to the transferor. The registration of assignment or transfer proportionate part of all or part of any Commitments and Loans shall be recorded by the Administrative Agent on the Lender Register only upon the acceptance by the Administrative Agent of a properly executed and delivered Assignment Agreement pursuant to this subsection (c). The entries in the Lender Register shall be conclusive absent manifest error, and the Borrower, the Administrative Agent and each Lender shall treat each person whose name is recorded in the Lender Register as a Lender hereunder for all purposes of this Agreement notwithstanding any notice to the contrary. The Lender Register shall be available for the inspection by the Borrower and any Lender (solely with respect to its own interest in any Loan or Commitment) at any reasonable time and from time to time upon reasonable prior notice.
(v) [Reserved].
(vi) Nothing in this Section 11.06(c) shall prevent or prohibit (A) any Lender that is a bank, trust company or other financial institution from pledging its Notes or Loans to a Federal Reserve Bank or to any Person that extends credit to such Lender in support of borrowings made by such Lender from such Federal Reserve Bank or such other Person, or (B) any Lender that is a trust, limited liability company, partnership or other investment company from pledging its Notes or Loans to a trustee or agent for the benefit of holders of certificates or debt securities issued by it. No such pledge, or any assignment pursuant to or in lieu of an enforcement of such a pledge, shall relieve the transferor Lender from its obligations hereunder. In connection with any assignment of assigning Lender's rights and obligations of any Defaulting Lender hereunder, no such assignment shall be effective unless and until, in addition to the other conditions thereto set forth herein, the parties to the assignment shall make such additional payments to the Administrative Agent in an aggregate amount sufficient, upon distribution thereof as appropriate (which may be outright payment, purchases by the assignee of participations or sub-participations, or other compensating actions, including funding, with the consent of the Borrower and the Administrative Agent, the applicable pro rata share of Loans previously requested but not funded by the Defaulting Lender, to under each of which the applicable assignee and assignor hereby irrevocably consent), to (x) pay and satisfy in full all payment liabilities then owed by such Defaulting Lender to the Administrative Agent or any Lender hereunder (and interest accrued thereon) and (y) acquire (and fund as appropriate) its full pro rata share of all Loans and participations in Letters of Credit and Swing Loans in accordance with its Applicable Percentage. Notwithstanding the foregoing, in the event that any assignment of rights and obligations of any Defaulting Lender hereunder shall become effective under applicable law without compliance with the provisions of this paragraph, then the assignee of such interest shall be deemed to be a Defaulting Lender for all purposes of this Agreement until such compliance occurs.the
Appears in 1 contract
Assignments by Lenders. (i) Any Lender may assign all, to one or if less than all, more assignees all or a fixed portion, portion of its Loans, LC Participations, Swing Loan Participations and/or Commitments and its rights and obligations hereunder to one or more Eligible Assignees, each of which shall become a party to under this Agreement as (including all or a Lender by execution portion of an Assignment Agreementits Commitments and the Loans at the time owing to it); provided, however, provided that:
(Ai) except in the case of an assignment to a Lender or an Affiliate (xor Approved Fund) of a Lender, each of the Borrower and the Administrative Agent must give their prior written consent to such assignment (which consent shall not be unreasonably withheld),
(ii) in the case of an assignment of all or a portion of a Revolving Credit Commitment or any Lender's obligations in respect of its LC Exposure or Swingline Exposure, the Issuing Lender and the Swingline Lender must give their prior written consent to such assignment,
(iii) except in the case of an assignment to a Lender or an Affiliate (or Approved Fund) of a Lender or an assignment of the entire remaining amount of the assigning Lender’s Loans and/or Commitments or 's Commitment(s), the amount of the Commitment(s) of the assigning Lender subject to each such assignment (y) an assignment to another Lender, an Affiliate determined as of such Lender or an Approved Fund the date the Assignment and Acceptance with respect to such Lender, assignment is delivered to the aggregate amount of the Commitment so assigned (which for this purpose includes the Loans outstanding thereunderAdministrative Agent) shall not be less than $2,500,000 5,000,000 (unless otherwise mutually agreed upon by the Borrower and the Administrative Agent);
(B) in the case of any assignment to an Eligible Assignee at the time of any such assignment the Lender Register shall be deemed modified to reflect the Commitments of such new Lender and of the existing Lenders;
Revolving Credit Commitments) or $1,000,000 (C) upon surrender of the old Notes, if any, upon request of the new Lender, new Notes will be issued, at the Borrower’s expense, to such new Lender and to the assigning Lender, to the extent needed to reflect the revised Commitments;
(D) unless waived by the Administrative Agent, except in the case of an assignment to another Lender, an Affiliate the Tranche A or Tranche B Term Loan Commitments) unless each of such Lender or an Approved Fund with respect to such Lender, or any Lenders in connection with the initial syndication of the Credit Facilities on or after the Closing Date, the Administrative Agent shall receive at the time of each such assignment, from the assigning or assignee Lender, the payment of a non-refundable assignment fee of $3,500; and
(E) any such assignment shall require the prior written consent (such consent (except with respect to assignments to competitors of the Borrower) not to be unreasonably withheld or delayed) of:
(1) the Borrower; provided that no consent of the Borrower shall be required for an assignment (x) by a Lender to any Lender or a U.S. based-Affiliate of any Lender, (y) by a Lender to an Approved Fund and (z) during a Specified Event of Default (unless such assignment is to a Disqualified Lender). Notwithstanding anything in this Section 11.06 to the contrary, if the Borrower has not given the Administrative Agent written notice of its objection to an assignment of Loans within fifteen (15) Business Days after written notice of such assignment, the Borrower shall be deemed to have consented to such assignment;
(2) the Administrative Agent; provided that no consent of the Administrative Agent shall be required for an assignment of a Loan to a Lender, an Affiliate of a Lender or an Approved Fund; and
(3) each LC Issuer and Swing Line Lender; provided that no consent of an LC Issuer or Swing Line Lender shall be required for an assignment of a Loan to a Lender, an Affiliate of a Lender or an Approved Fund.
(ii) To the extent of any assignment pursuant to this subsection (c), the assigning Lender shall be relieved of its obligations hereunder with respect to its assigned Commitments.
(iii) At the time of each assignment pursuant to this subsection (c) to a Person that is not already a Lender hereunder, the respective assignee Lender shall provide to the Borrower and the Administrative Agent the applicable Internal Revenue Service Forms (and any necessary additional documentation) described in Section 3.02(e).otherwise consent,
(iv) With respect to any Lender, the transfer each partial assignment shall be made as an assignment of any Commitment of such Lender and the rights to the principal of, and interest on, any Loan made pursuant to such Commitment shall not be effective until such transfer is recorded on the Lender Register maintained by the Administrative Agent (on behalf of and acting solely for this purpose as a non-fiduciary agent of the applicable Borrower) with respect to ownership of such Commitment and Loans, including the name and address of the Lenders and the principal amount of the Loans (and stated interest thereon). Prior to such recordation, all amounts owing to the transferor with respect to such Commitment and Loans shall remain owing to the transferor. The registration of assignment or transfer proportionate part of all or part of any Commitments the assigning Lender's rights and Loans shall be recorded by the Administrative Agent on the Lender Register only upon the acceptance by the Administrative Agent of a properly executed and delivered Assignment Agreement pursuant to obligations under this subsection (c). The entries in the Lender Register shall be conclusive absent manifest error, and the Borrower, the Administrative Agent and each Lender shall treat each person whose name is recorded in the Lender Register as a Lender hereunder for all purposes of this Agreement notwithstanding any notice to the contrary. The Lender Register shall be available for the inspection by the Borrower and any Lender (solely with respect to its own interest in any Loan or Commitment) at any reasonable time and from time to time upon reasonable prior notice.Agreement,
(v) [Reserved].the assignee, if it shall be a Foreign Lender, shall deliver to the Borrower any documentation required to be delivered by it pursuant to Section 2.16(e), duly completed and executed by the assignee,
(vi) Nothing in this Section 11.06(c) shall prevent or prohibit (A) any Lender that is a bank, trust company or other financial institution from pledging its Notes or Loans to a Federal Reserve Bank or to any Person that extends credit to such Lender in support of borrowings made by such Lender from such Federal Reserve Bank or such other Person, or (B) any Lender that is a trust, limited liability company, partnership or other investment company from pledging its Notes or Loans to a trustee or agent for the benefit of holders of certificates or debt securities issued by it. No such pledge, or any assignment pursuant to or in lieu of an enforcement of such a pledge, shall relieve the transferor Lender from its obligations hereunder. In connection with any assignment of rights and obligations of any Defaulting Lender hereunder, no such assignment shall be effective unless and until, in addition to the other conditions thereto set forth herein, the parties to the each assignment shall make such additional payments execute and deliver to the Administrative Agent in an aggregate amount sufficientAssignment and Acceptance, upon distribution thereof as appropriate together with a processing and recordation fee of $3,500, and Credit Agreement
(which may vii) the assignee, if it shall not be outright payment, purchases by the assignee of participations or sub-participations, or other compensating actions, including funding, with the consent of the Borrower and the Administrative Agent, the applicable pro rata share of Loans previously requested but not funded by the Defaulting a Lender, to each of which the applicable assignee and assignor hereby irrevocably consent), to (x) pay and satisfy in full all payment liabilities then owed by such Defaulting Lender shall deliver to the Administrative Agent or any Lender hereunder (and interest accrued thereon) and (y) acquire (and fund as appropriate) its full pro rata share of all Loans and participations in Letters of Credit and Swing Loans in accordance with its Applicable Percentage. Notwithstanding the foregoing, in the event that any assignment of rights and obligations of any Defaulting Lender hereunder shall become effective under applicable law without compliance with the provisions of this paragraph, then the assignee of such interest shall be deemed to be a Defaulting Lender for all purposes of this Agreement until such compliance occurs.an Administrative Questionnaire;
Appears in 1 contract
Assignments by Lenders. (i) Any Lender may assign all, or if less than all, a fixed portion, of its Loans, LC Participations, Swing Loan Participations and/or Commitments and its rights and obligations hereunder to one or more Eligible Assignees, each of which shall become a party to this Agreement as a Lender by execution of an Assignment Agreement; provided, however, that:
(A) except in the case of (x) an assignment of the entire remaining amount of the assigning Lender’s Loans and/or Commitments or (y) an assignment to another Lender, an Affiliate of such Lender or an Approved Fund with respect to such Lender, the aggregate amount of the Commitment so assigned (which for this purpose includes the Loans outstanding thereunder) shall not be less than $2,500,000 (unless otherwise mutually agreed upon by 1,000,000 in the Borrower case of any assignment in respect of the Revolving Facility and $1,000,000 in the Administrative Agent)case of any assignment in respect of the Term Loans;
(B) in the case of any assignment to an Eligible Assignee at the time of any such assignment the Lender Register shall be deemed modified to reflect the Commitments of such new Lender and of the existing Lenders;
(C) upon surrender of the old Notes, if any, upon request of the new Lender, new Notes will be issued, at the Borrower’s expense, to such new Lender and to the assigning Lender, to the extent needed to reflect the revised Commitments;; and
(D) unless waived by the Administrative Agent, except in the case of an assignment to another Lender, an Affiliate of such Lender or an Approved Fund with respect to such Lender, or any Lenders in connection with the initial syndication of the Credit Facilities on or after the Closing Date, the Administrative Agent shall receive at the time of each such assignment, from the assigning or assignee Lender, the payment of a non-refundable assignment fee of $3,500; and
(E) any such assignment shall require the prior written consent (such consent (except with respect to assignments to competitors of the Borrower) not to be unreasonably withheld or delayed) of:
(1) the Borrower; provided that no consent of the Borrower shall be required for an assignment (x) by a Lender to any Lender or a U.S. based-Affiliate of any Lender, (y) by a Lender to an Approved Fund and (z) during a Specified Event of Default (unless such assignment is to a Disqualified Lender). Notwithstanding anything in this Section 11.06 to the contrary, if the Borrower has not given the Administrative Agent written notice of its objection to an assignment of Loans within fifteen (15) Business Days after written notice of such assignment, the Borrower shall be deemed to have consented to such assignment;
(2) the Administrative Agent; provided that no consent of the Administrative Agent shall be required for an assignment of a Loan to a Lender, an Affiliate of a Lender or an Approved Fund; and
(3) each LC Issuer and Swing Line Lender; provided that no consent of an LC Issuer or Swing Line Lender shall be required for an assignment of a Loan to a Lender, an Affiliate of a Lender or an Approved Fund.
(ii) To the extent of any assignment pursuant to this subsection subpart (c), the assigning Lender shall be relieved of its obligations hereunder with respect to its assigned CommitmentsCommitments provided, that except to the extent otherwise expressly agreed by the affected parties, no assignment by a Defaulting Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender’s having been a Defaulting Lender.
(iii) At the time of each assignment pursuant to this subsection subpart (c) ), to a Person that is not already a Lender hereunderhereunder and that is not a U.S. Person for Federal income tax purposes, the respective assignee Lender shall provide to the Borrower and the Administrative Agent the applicable Internal Revenue Service Forms (and any necessary additional documentation) described in Section 3.02(e3.03(g).
(iv) With respect to any Lender, the transfer of any Commitment of such Lender and the rights to the principal of, and interest on, any Loan made pursuant to such Commitment shall not be effective until such transfer is recorded on the Lender Register maintained by the Administrative Agent (on behalf of and acting solely for this purpose as a non-fiduciary agent of the applicable Borrower) with respect to ownership of such Commitment and Loans, including the name and address of the Lenders and the principal amount of the Loans (and stated interest thereon). Prior to such recordation, all amounts owing to the transferor with respect to such Commitment and Loans shall remain owing to the transferor. The registration of assignment or transfer of all or part of any Commitments and Loans shall be recorded by the Administrative Agent on the Lender Register only upon the acceptance by the Administrative Agent of a properly executed and delivered Assignment Agreement pursuant to this subsection (c). The entries in the Lender Register shall be conclusive absent manifest error, and the Borrower, the Administrative Agent and each Lender shall treat each person whose name is recorded in the Lender Register as a Lender hereunder for all purposes of this Agreement notwithstanding any notice to the contrary. The Lender Register shall be available for the inspection by the Borrower and any Lender (solely with respect to its own interest in any Loan or Commitment) at any reasonable time and from time to time upon reasonable prior notice.
(v) [Reserved].
(vi) Nothing in this Section 11.06(c) shall prevent or prohibit (A) any Lender that is a bank, trust company or other financial institution from pledging its Notes or Loans to a Federal Reserve Bank or to any Person that extends credit to such Lender in support of borrowings made by such Lender from such Federal Reserve Bank or such other Person, or (B) any Lender that is a trust, limited liability company, partnership or other investment company from pledging its Notes or Loans to a trustee or agent for the benefit of holders of certificates or debt securities issued by it. No such pledge, or any assignment pursuant to or in lieu of an enforcement of such a pledge, shall relieve the transferor Lender from its obligations hereunder. In connection with any assignment of rights and obligations of any Defaulting Lender hereunder, no such assignment shall be effective unless and until, in addition to the other conditions thereto set forth herein, the parties to the assignment shall make such additional payments to the Administrative Agent in an aggregate amount sufficient, upon distribution thereof as appropriate (which may be outright payment, purchases by the assignee of participations or sub-participations, or other compensating actions, including funding, with the consent of the Borrower and the Administrative Agent, the applicable pro rata share of Loans previously requested but not funded by the Defaulting Lender, to each of which the applicable assignee and assignor hereby irrevocably consent), to (x) pay and satisfy in full all payment liabilities then owed by such Defaulting Lender to the Administrative Agent or any Lender hereunder (and interest accrued thereon) and (y) acquire (and fund as appropriate) its full pro rata share of all Loans and participations in Letters of Credit and Swing Loans in accordance with its Applicable Percentage. Notwithstanding the foregoing, in the event that any assignment of rights and obligations of any Defaulting Lender hereunder shall become effective under applicable law without compliance with the provisions of this paragraph, then the assignee of such interest shall be deemed to be a Defaulting Lender for all purposes of this Agreement until such compliance occurs.
Appears in 1 contract
Assignments by Lenders. (i) Any Lender may assign all, or if less than all, a fixed portion, of its Loans, LC Participations, Swing Loan Participations and/or Revolving Commitments and its rights and obligations hereunder to one or more Eligible Assignees, each of which shall become a party to this Agreement as a Lender by execution of an Assignment Agreement; provided, however, that:
(A) except in the case of (x) an assignment of the entire remaining amount of the assigning Lender’s Loans and/or Revolving Commitments or (y) an assignment to another Lender, an Affiliate of such Lender or an Approved Fund with respect to such Lender, the aggregate amount of the Revolving Commitment so assigned (which for this purpose includes the Loans outstanding thereunder) shall not be less than $2,500,000 (unless otherwise mutually agreed upon by the Borrower and the Administrative Agent)5,000,000;
(B) in the case of any assignment to an Eligible Assignee at the time of any such assignment the Lender Register shall be deemed modified to reflect the Revolving Commitments of such new Lender and of the existing Lenders;
(C) upon surrender of the old Notes, if any, upon request of the new Lender, new Notes will be issued, at the Borrower’s Borrowers’ expense, to such new Lender and to the assigning Lender, to the extent needed to reflect the revised Revolving Commitments;
(D) unless waived by the Administrative Agent, except in the case of an assignment to another Lender, an Affiliate of such Lender or an Approved Fund with respect to such Lender, or any Lenders in connection with the initial syndication of the Credit Facilities on or after the Closing Date, the Administrative Agent shall receive at the time of each such assignment, from the assigning or assignee Lender, the payment of a non-refundable assignment fee of $3,500; and;
(E) any such assignment shall require be subject to the prior written consent (such consent (except with respect to assignments to competitors of the Borrower) not to be unreasonably withheld or delayed) of:
(1) Borrowers; provided, that the Borrower; provided that no consent of the Borrower shall be required for an assignment (x) by a Lender to any Lender or a U.S. based-Affiliate of any Lender, (y) by a Lender to an Approved Fund and (z) during a Specified Event of Default (unless such assignment is to a Disqualified Lender). Notwithstanding anything in this Section 11.06 to the contrary, if the Borrower has not given the Administrative Agent written notice of its objection to an assignment of Loans within fifteen (15) Business Days after written notice of such assignment, the Borrower Borrowers shall be deemed to have consented to any such assignment;
(2) assignment unless it shall object thereto by written notice to the Administrative Agent; Agent within 2 Business Days after having received notice thereof, and provided further, that no consent of the Administrative Agent Borrowers shall be required for an assignment of a Loan to a Lender, an Affiliate affiliate of a such Lender or an Approved FundFund or, if an Event of Default has occurred and is continuing, any other assignee; and
(3F) each LC Issuer and Swing Line Lender; provided that no consent assignment to any Person of Loans extended to or for the account of an LC Issuer or Swing Line Applicable Dutch Credit Party shall only be permitted if the Person to whom the Loans are assigned is a Non-Public Lender shall be required for an assignment of a Loan to a Lender, an Affiliate of a Lender or an Approved Fundat all times.
(ii) To the extent of any assignment pursuant to this subsection subpart (c), the assigning Lender shall be relieved of its obligations hereunder with respect to its assigned CommitmentsRevolving Commitments provided, that except to the extent otherwise expressly agreed by the affected parties, no assignment by a Defaulting Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender’s having been a Defaulting Lender.
(iii) At the time of each assignment pursuant to this subsection subpart (c) ), to a Person that is not already a Lender hereunderhereunder and that is not a U.S. Person for Federal income tax purposes, the respective assignee Lender shall provide to the Borrower Borrowers, the Administrative Agent and the Administrative Foreign Collateral Agent the applicable Internal Revenue Service Forms (and any necessary additional documentation) described in Section 3.02(e3.03(g).
(iv) With respect to any Lender, the transfer of any Commitment of such Lender and the rights to the principal of, and interest on, any Loan made pursuant to such Commitment shall not be effective until such transfer is recorded on the Lender Register maintained by the Administrative Agent (on behalf of and acting solely for this purpose as a non-fiduciary agent of the applicable Borrower) with respect to ownership of such Commitment and Loans, including the name and address of the Lenders and the principal amount of the Loans (and stated interest thereon). Prior to such recordation, all amounts owing to the transferor with respect to such Commitment and Loans shall remain owing to the transferor. The registration of assignment or transfer of all or part of any Commitments and Loans shall be recorded by the Administrative Agent on the Lender Register only upon the acceptance by the Administrative Agent of a properly executed and delivered Assignment Agreement pursuant to this subsection (c). The entries in the Lender Register shall be conclusive absent manifest error, and the Borrower, the Administrative Agent and each Lender shall treat each person whose name is recorded in the Lender Register as a Lender hereunder for all purposes of this Agreement notwithstanding any notice to the contrary. The Lender Register shall be available for the inspection by the Borrower and any Lender (solely with respect to its own interest in any Loan or Commitment) at any reasonable time and from time to time upon reasonable prior notice.
(v) [Reserved].
(vi) Nothing in this Section 11.06(c) shall prevent or prohibit (A) any Lender that is a bank, trust company or other financial institution from pledging its Notes or Loans to a Federal Reserve Bank or to any Person that extends credit to such Lender in support of borrowings made by such Lender from such Federal Reserve Bank or such other Person, or (B) any Lender that is a trust, limited liability company, partnership or other investment company from pledging its Notes or Loans to a trustee or agent for the benefit of holders of certificates or debt securities issued by it. No such pledge, or any assignment pursuant to or in lieu of an enforcement of such a pledge, shall relieve the transferor Lender from its obligations hereunder. In connection with any assignment of rights and obligations of any Defaulting Lender hereunder, no such assignment shall be effective unless and until, in addition to the other conditions thereto set forth herein, the parties to the assignment shall make such additional payments to the Administrative Agent in an aggregate amount sufficient, upon distribution thereof as appropriate (which may be outright payment, purchases by the assignee of participations or sub-participations, or other compensating actions, including funding, with the consent of the Borrower and the Administrative Agent, the applicable pro rata share of Loans previously requested but not funded by the Defaulting Lender, to each of which the applicable assignee and assignor hereby irrevocably consent), to (x) pay and satisfy in full all payment liabilities then owed by such Defaulting Lender to the Administrative Agent or any Lender hereunder (and interest accrued thereon) and (y) acquire (and fund as appropriate) its full pro rata share of all Loans and participations in Letters of Credit and Swing Loans in accordance with its Applicable Percentage. Notwithstanding the foregoing, in the event that any assignment of rights and obligations of any Defaulting Lender hereunder shall become effective under applicable law without compliance with the provisions of this paragraph, then the assignee of such interest shall be deemed to be a Defaulting Lender for all purposes of this Agreement until such compliance occurs.
Appears in 1 contract
Samples: Credit Agreement (Nn Inc)
Assignments by Lenders. (i) Any Lender may assign all, or if less than all, a fixed portion, of its Loans, LC Participations, Swing Loan Participations and/or Commitments and its rights and obligations hereunder to one or more Eligible Assignees, each of which shall become a party to this Agreement as a Lender by execution of an Assignment Agreement; provided, however, that:
(A) except in the case of (x) an assignment of the entire remaining amount of the assigning Lender’s Loans and/or Commitments or (y) an assignment to another Lender, an Affiliate of such Lender or an Approved Fund with respect to such Lender, the aggregate amount of the Commitment so assigned (which for this purpose includes the Loans outstanding thereunder) shall not be less than $2,500,000 1.0 million, in the case of Term Loans or $5.0 million, in the case of Revolving Loans and Revolving Commitments (unless otherwise mutually agreed upon by the Parent Borrower and the Administrative Agent);
(B) in the case of any assignment to an Eligible Assignee at the time of any such assignment the Lender Register shall be deemed modified to reflect the Commitments of such new Lender and of the existing Lenders;
(C) upon surrender of the old Notes, if any, upon request of the new Lender, new Notes will be issued, at the Parent Borrower’s expense, to such new Lender and to the assigning Lender, to the extent needed to reflect the revised Commitments;
(D) unless waived by the Administrative Agent, except in the case of an assignment to another Lender, an Affiliate of such Lender or an Approved Fund with respect to such Lender, or any Lenders in connection with the initial syndication of the Credit Facilities on or after the Closing Date, the Administrative Agent shall receive at the time of each such assignment, from the assigning or assignee Lender, the payment of a non-refundable assignment fee of $3,500; and;
(E) any such assignment shall require the prior written consent (such consent (except with respect to assignments to competitors of the Borrower) not to be unreasonably withheld or delayed) of:
(1) the Borrower; provided that no consent of the Parent Borrower shall be required for an assignment (x) by a Lender to any Lender or a U.S. based-Affiliate of any Lender, (y) by a Lender to an Approved Fund and (z) during a Specified Event of Default (unless such assignment is to a Disqualified Lender). Notwithstanding anything in this Section 11.06 to the contrary, if the Borrower has not given the Administrative Agent written notice of its objection to an assignment of Loans within fifteen (15) Business Days after written notice of such assignment, the Borrower shall will be deemed to have consented given the consent required in the definition of “Eligible Assignee” to such assignment;
Assignment if Parent Borrower has not responded in writing within ten (210) the Administrative Agent; provided that no consent of the Administrative Agent shall be required for an assignment Business Days of a Loan to a Lender, an Affiliate of a Lender or an Approved Fund; and
(3) each LC Issuer and Swing Line Lender; provided that no consent of an LC Issuer or Swing Line Lender shall be required request for an assignment of a Loan to a Lender, an Affiliate of a Lender or an Approved Fundconsent.
(ii) To the extent of any assignment pursuant to this subsection subpart (c), the assigning Lender shall be relieved of its obligations hereunder with respect to its assigned Commitments.
(iii) At the time of each assignment pursuant to this subsection subpart (c) to a Person that is not already a Lender hereunder, the respective assignee Lender shall provide to the Parent Borrower and the Administrative Agent the applicable Internal Revenue Service Forms (and any necessary additional documentation) described in Section 3.02(e3.02(g).
(iv) With respect to any Lender, the transfer of any Commitment of such Lender and the rights to the principal of, and interest on, any Loan made pursuant to such Commitment shall not be effective until such transfer is recorded on the Lender Register maintained by the Administrative Agent (on behalf of and acting solely for this purpose as a non-fiduciary agent of the applicable Borrower) with respect to ownership of such Commitment and Loans, including the name and address of the Lenders and the principal amount of the Loans (and stated interest thereon). Prior to such recordation, all amounts owing to the transferor with respect to such Commitment and Loans shall remain owing to the transferor. The registration of assignment or transfer of all or part of any Commitments and Loans shall be recorded by the Administrative Agent on the Lender Register only upon the acceptance by the Administrative Agent of a properly executed and delivered Assignment Agreement pursuant to this subsection subpart (c). The entries in the Lender Register shall be conclusive absent manifest error, and the each Borrower, the Administrative Agent and each Lender shall treat each person Person whose name is recorded in the Lender Register as a Lender hereunder for all purposes of this Agreement notwithstanding any notice to the contrary. The Lender Register shall be available for the inspection by the Parent Borrower and any Lender (solely with respect to its own interest in any Loan or Commitment) at any reasonable time and from time to time upon reasonable prior notice.
(v) [Reserved]Notwithstanding the foregoing, in no event shall the Administrative Agent be obligated to ascertain, monitor or inquire as to whether any Lender is an Affiliated Lender nor shall the Administrative Agent be obligated to monitor the aggregate amount of Term Loans held by Affiliated Lenders. Upon request by the Administrative Agent, the Parent Borrower shall (i) promptly (and in any case, not less than five (5) Business Days (or shorter period as agreed to by the Administrative Agent) prior to the proposed effective date of any amendment, consent or waiver pursuant to Section 11.12) provide to the Administrative Agent, a complete list of all Affiliated Lenders holding Term Loans at such time and (ii) not less than five (5) Business Days (or shorter period as agreed to by the Administrative Agent) prior to the proposed effective date of any amendment, consent or waiver pursuant to Section 11.12, provide to the Administrative Agent, a complete list of all Affiliated Debt Funds holding Term Loans at such time.
(vi) Nothing in this Section 11.06(c) shall prevent or prohibit (A) any Lender that is a bank, trust company or other financial institution from pledging its Notes or Loans to a Federal Reserve Bank or to any Person that extends credit to such Lender in support of borrowings made by such Lender from such Federal Reserve Bank or such other Person, or (B) any Lender that is a trust, limited liability company, partnership or other investment company from pledging its Notes or Loans to a trustee or agent for the benefit of holders of certificates or debt securities issued by it. No such pledge, or any assignment pursuant to or in lieu of an enforcement of such a pledge, shall relieve the transferor Lender from its obligations hereunder.
(vii) By its execution of this Agreement, an Assignment Agreement, an Affiliated Lender Assignment Agreement, an Incremental Revolving Credit Assumption Agreement or an Incremental Term Loan Assumption Agreement, as applicable, each Secured Creditor that is or becomes a party hereto hereby appoints the Collateral Agent as its attorney-in-fact to execute the UK Security Trust Deed on its behalf and/or to act under the UK Security Trust Deed as if such Secured Creditor had executed the UK Security Trust Deed as a Finance Party (as defined therein) and agrees that it shall have the rights and obligations of a Finance Party under the UK Security Trust Deed and to be bound by the terms thereof as a Finance Party. In connection with any assignment of rights and obligations of any Defaulting Lender hereunder, no such assignment shall be effective unless and until, in addition to the other conditions thereto set forth herein, the parties to the assignment shall make such additional payments to the Administrative Agent in an aggregate amount sufficient, upon distribution thereof as appropriate (which may be outright payment, purchases by the assignee of participations or sub-participationssubparticipations, or other compensating actions, including funding, with the consent of the Parent Borrower and the Administrative Agent, the applicable pro rata share of Loans previously requested but not funded by the Defaulting Lender, to each of which the applicable assignee and assignor hereby irrevocably consent), to (x) pay and satisfy in full all payment liabilities then owed by such Defaulting Lender to the Administrative Agent or any Lender hereunder (and interest accrued thereon) and (y) acquire (and fund as appropriate) its full pro rata share of all Loans and participations in Letters of Credit and Swing Loans in accordance with its Applicable Percentage. Notwithstanding the foregoing, in the event that any assignment of rights and obligations of any Defaulting Lender hereunder shall become effective under applicable law without compliance with the provisions of this paragraph, then the assignee of such interest shall be deemed to be a Defaulting Lender for all purposes of this Agreement until such compliance occurs.
Appears in 1 contract
Samples: Credit Agreement (Patheon Holdings Cooperatief U.A.)
Assignments by Lenders. (i) Any Subject to the conditions set forth in this Section 9.04 (including, without limitation paragraph (b)(ii) below) any Lender may assign all, to one or if less more Persons (other than all, an Ineligible Institution) all or a fixed portion, portion of its Loans, LC Participations, Swing Loan Participations and/or Commitments and its rights and obligations hereunder to one or more Eligible Assignees, each of which shall become a party to under this Agreement as and the other Loan Documents (including all or a Lender by execution portion of an Assignment Agreement; provided, however, that:
(A) except in the case of (x) an assignment of the entire remaining amount of the assigning Lender’s Loans and/or Commitments or (y) an assignment to another Lender, an Affiliate of such Lender or an Approved Fund with respect to such Lenderits Commitment, the aggregate amount Loans and, for purposes of the Commitment so assigned (which for this purpose includes the Loans outstanding thereunder) shall not be less than $2,500,000 (unless otherwise mutually agreed upon by the Borrower and the Administrative Agent);
(B) Section 9.04, participations in the case of any assignment to an Eligible Assignee LC Exposure, at the time of any such assignment the Lender Register shall be deemed modified owing to reflect the Commitments of such new Lender and of the existing Lenders;
(Cit) upon surrender of the old Notes, if any, upon request of the new Lender, new Notes will be issued, at the Borrower’s expense, to such new Lender and to the assigning Lender, to the extent needed to reflect the revised Commitments;
(D) unless waived by the Administrative Agent, except in the case of an assignment to another Lender, an Affiliate of such Lender or an Approved Fund with respect to such Lender, or any Lenders in connection with the initial syndication of the Credit Facilities on or after the Closing Date, the Administrative Agent shall receive at the time of each such assignment, from the assigning or assignee Lender, the payment of a non-refundable assignment fee of $3,500; and
(E) any such assignment shall require the prior written consent (such consent (except with respect to assignments to competitors of the Borrower) not to be unreasonably withheld withheld, conditioned or delayed) of:
(1A) the Borrower; , provided that no consent of the Borrower shall be required for an assignment (x) by a Lender to any Lender or a U.S. based-Affiliate of any Lender, (y) by a Lender to an Approved Fund and (z) during a Specified Event of Default (unless such assignment is to a Disqualified Lender). Notwithstanding anything in this Section 11.06 to the contrary, if the Borrower has not given the Administrative Agent written notice of its objection to an assignment of Loans within fifteen (15) Business Days after written notice of such assignmentthat, the Borrower shall be deemed to have consented to such assignmentan assignment unless it shall have objected thereto by written notice to the Administrative Agent within ten (10) Business Days after having received written notice thereof; provided further that no consent of Borrower shall be required for an assignment to a Lender, an Affiliate of a Lender, an Approved Fund or an assignment that results as a result of a merger of a Lender with another financial institution, and if an Event of Default has occurred and is continuing, no consent of the Borrower shall be required with respect to any other assignee;
(2B) the Administrative Agent; , provided that no consent of the Administrative Agent shall be required for an assignment of any Commitment or Loans to (1) an assignee that is a Loan Lender (other than a Defaulting Lender) with a Commitment or Loans immediately prior to giving effect to such assignment or (2) a Lender, an Affiliate of a Lender, an Approved Fund or an assignment that results as a result of a merger of a Lender with another financial institution; and
(C) the Issuing Lender.
(ii) Assignments shall be subject to the following additional conditions:
(A) except in the case of an assignment to a Lender, an Affiliate of a Lender or an Approved Fund; and
(3) each LC Issuer and Swing Line Lender; provided that no consent of an LC Issuer Fund or Swing Line Lender shall be required for an assignment of a Loan to a the entire remaining amount of the assigning Lender’s Commitment or Loans, an Affiliate the amount of a Lender the Commitment or an Approved Fund.
(ii) To the extent Loans of any assignment pursuant to this subsection (c), the assigning Lender shall be relieved subject to each such assignment (determined as of its obligations hereunder the date the Assignment and Assumption with respect to its assigned Commitments.
(iii) At the time of each such assignment pursuant to this subsection (c) to a Person that is not already a Lender hereunder, the respective assignee Lender shall provide delivered to the Administrative Agent) shall not be less than $5,000,000 unless each of Borrower and the Administrative Agent the applicable Internal Revenue Service Forms (otherwise consent in writing; provided that no such consent of Borrower shall be required if an Event of Default has occurred and any necessary additional documentation) described in Section 3.02(e).is continuing;
(ivB) With respect to any each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender, the transfer of any Commitment of such Lender ’s rights and obligations under this Agreement and the rights other Loan Documents;
(C) the parties to the principal of, each assignment shall execute and interest on, any Loan made pursuant deliver to such Commitment shall not be effective until such transfer is recorded on the Lender Register maintained by the Administrative Agent (on behalf of x) an Assignment and acting solely for this purpose as a non-fiduciary agent of the applicable BorrowerAssumption, or (y) with respect to ownership of such Commitment and Loans, including the name and address of the Lenders and the principal amount of the Loans (and stated interest thereon). Prior to such recordation, all amounts owing to the transferor with respect to such Commitment extent applicable, an agreement incorporating an Assignment and Loans shall remain owing to the transferor. The registration of assignment or transfer of all or part of any Commitments and Loans shall be recorded Assumption by the Administrative Agent on the Lender Register only upon the acceptance by the Administrative Agent of a properly executed and delivered Assignment Agreement reference pursuant to this subsection (c). The entries in the Lender Register shall be conclusive absent manifest error, and the Borrower, an Approved Electronic Platform as to which the Administrative Agent and each Lender shall treat each person whose name is recorded in the Lender Register as a Lender hereunder for all purposes of this Agreement notwithstanding any notice to the contrary. The Lender Register shall be available for the inspection by the Borrower and any Lender (solely with respect to its own interest in any Loan or Commitment) at any reasonable time and from time to time upon reasonable prior notice.
(v) [Reserved].
(vi) Nothing in this Section 11.06(c) shall prevent or prohibit (A) any Lender that is a bank, trust company or other financial institution from pledging its Notes or Loans to a Federal Reserve Bank or to any Person that extends credit to such Lender in support of borrowings made by such Lender from such Federal Reserve Bank or such other Person, or (B) any Lender that is a trust, limited liability company, partnership or other investment company from pledging its Notes or Loans to a trustee or agent for the benefit of holders of certificates or debt securities issued by it. No such pledge, or any assignment pursuant to or in lieu of an enforcement of such a pledge, shall relieve the transferor Lender from its obligations hereunder. In connection with any assignment of rights and obligations of any Defaulting Lender hereunder, no such assignment shall be effective unless and until, in addition to the other conditions thereto set forth herein, the parties to the assignment Assignment and Assumption are participants, together with a processing and recordation fee of $3,500;
(D) the assignee, if it shall make such additional payments not be a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire in an aggregate amount sufficient, upon distribution thereof as appropriate which the assignee designates one or more credit contacts to whom all syndicate-level information (which may be outright payment, purchases by the assignee of participations or subcontain material non-participations, or other compensating actions, including funding, with the consent of public information about the Borrower Parties and the Administrative Agent, the applicable pro rata share of Loans previously requested but not funded by the Defaulting Lender, to each of which the applicable assignee their related parties or their respective securities) will be made available and assignor hereby irrevocably consent), to (x) pay and satisfy in full all payment liabilities then owed by who may receive such Defaulting Lender to the Administrative Agent or any Lender hereunder (and interest accrued thereon) and (y) acquire (and fund as appropriate) its full pro rata share of all Loans and participations in Letters of Credit and Swing Loans information in accordance with its Applicable Percentage. Notwithstanding the foregoingassignee’s compliance procedures and applicable laws, in the event that any including Federal and state securities laws; and
(E) each assignment of rights and obligations of any Defaulting Lender hereunder shall become effective under applicable law without compliance with the provisions of this paragraph, then the assignee must be for a pro rata portion of such interest shall be deemed to be a Defaulting Lender for all assignor’s Revolving Credit Commitment, Revolving Credit Loans, Term Loan Commitment and Term Loans. For the purposes of this Agreement until such compliance occurs.Section 9.04(b), the term “Approved Fund” and “Ineligible Institution” have the following meanings:
Appears in 1 contract
Samples: Credit Agreement (Jones Lang LaSalle Income Property Trust, Inc.)
Assignments by Lenders. (i) Any Lender may assign all, or if less than all, a fixed portion, of its Loans, LC Participations, Swing Loan Participations and/or Commitments and its rights and obligations hereunder to one or more Eligible Assignees, each of which shall become a party to this Agreement as a Lender by execution of an Assignment Agreement; provided, however, that:
(A) except in the case of (x) an assignment of the entire remaining amount of the assigning Lender’s Loans and/or Commitments or (y) an assignment to another Lender, an Affiliate of such Lender or an Approved Fund with respect to such Lender, the aggregate amount of the Commitment so assigned (which for this purpose includes the Loans outstanding thereunder) shall not be less than $2,500,000 (unless otherwise mutually agreed upon by the Borrower and the Administrative Agent)1,000,000;
(B) in the case of any assignment to an Eligible Assignee at the time of any such assignment the Lender Register shall be deemed modified to reflect the Commitments of such new Lender and of the existing Lenders;
(C) upon surrender of the old Notes, if any, upon request of the new Lender, new Notes will be issued, at the Borrower’s expense, to such new Lender and to the assigning Lender, to the extent needed to reflect the revised Commitments;; and
(D) unless waived by the Administrative Agent, except in the case of an assignment to another Lender, an Affiliate of such Lender or an Approved Fund with respect to such Lender, or any Lenders in connection with the initial syndication of the Credit Facilities on or after the Closing Date, the Administrative Agent shall receive at the time of each such assignment, from the assigning or assignee Lender, the payment of a non-refundable assignment fee of $3,500; and
(E) any such assignment shall require the prior written consent (such consent (except with respect to assignments to competitors of the Borrower) not to be unreasonably withheld or delayed) of:
(1) the Borrower; provided that no consent of the Borrower shall be required for an assignment (x) by a Lender to any Lender or a U.S. based-Affiliate of any Lender, (y) by a Lender to an Approved Fund and (z) during a Specified Event of Default (unless such assignment is to a Disqualified Lender). Notwithstanding anything in this Section 11.06 to the contrary, if the Borrower has not given the Administrative Agent written notice of its objection to an assignment of Loans within fifteen (15) Business Days after written notice of such assignment, the Borrower shall be deemed to have consented to such assignment;
(2) the Administrative Agent; provided that no consent of the Administrative Agent shall be required for an assignment of a Loan to a Lender, an Affiliate of a Lender or an Approved Fund; and
(3) each LC Issuer and Swing Line Lender; provided that no consent of an LC Issuer or Swing Line Lender shall be required for an assignment of a Loan to a Lender, an Affiliate of a Lender or an Approved Fund.
(ii) To the extent of any assignment pursuant to this subsection subpart (c), the assigning Lender shall be relieved of its obligations hereunder with respect to its assigned CommitmentsCommitments provided, that except to the extent otherwise expressly agreed by the affected parties, no assignment by a Defaulting Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender’s having been a Defaulting Lender.
(iii) At the time of each assignment pursuant to this subsection subpart (c) ), to a Person that is not already a Lender hereunderhereunder and that is not a U.S. Person for Federal income tax purposes, the respective assignee Lender shall provide to the Borrower and the Administrative Agent the applicable Internal Revenue Service Forms (and any necessary additional documentation) described in Section 3.02(eSection 3.03(g).
(iv) With respect to any Lender, the transfer of any Commitment of such Lender and the rights to the principal of, and interest on, any Loan made pursuant to such Commitment shall not be effective until such transfer is recorded on the Lender Register maintained by the Administrative Agent (on behalf of and acting solely for this purpose as a non-fiduciary agent of the applicable Borrower) with respect to ownership of such Commitment and Loans, including the name and address of the Lenders and the principal amount of the Loans (and stated interest thereon). Prior to such recordation, all amounts owing to the transferor with respect to such Commitment and Loans shall remain owing to the transferor. The registration of assignment or transfer of all or part of any Commitments and Loans shall be recorded by the Administrative Agent on the Lender Register only upon the acceptance by the Administrative Agent of a properly executed and delivered Assignment Agreement pursuant to this subsection subpart (c). The entries in the Lender Register shall be conclusive absent manifest error, and the Borrower, the Administrative Agent and each Lender shall treat each person whose name is recorded in the Lender Register as a Lender hereunder for all purposes of this Agreement notwithstanding any notice to the contrary. The Lender Register shall be available for the inspection by the Borrower and any Lender (solely with respect to its own interest in any Loan or Commitment) at any reasonable time and from time to time upon reasonable prior notice.
(v) [Reserved].
(vi) Nothing in this Section 11.06(c) shall prevent or prohibit (A) any Lender that is a bank, trust company or other financial institution from pledging its Notes or Loans to a Federal Reserve Bank or to any Person that extends credit to such Lender in support of borrowings made by such Lender from such Federal Reserve Bank or such other Person, or (B) any Lender that is a trust, limited liability company, partnership or other investment company from pledging its Notes or Loans to a trustee or agent for the benefit of holders of certificates or debt securities issued by it. No such pledge, or any assignment pursuant to or in lieu of an enforcement of such a pledge, shall relieve the transferor Lender from its obligations hereunder. .
(vi) In connection with any assignment of rights and obligations of any Defaulting Lender hereunder, no such assignment shall be effective unless and until, in addition to the other conditions thereto set forth herein, the parties to the assignment shall make such additional payments to the Administrative Agent in an aggregate amount sufficient, upon distribution thereof as appropriate (which may be outright payment, purchases by the assignee of participations or sub-participationssubparticipations, or other compensating actions, including funding, with the consent of the Borrower and the Administrative Agent, the applicable pro rata share of Loans previously requested but not funded by the Defaulting Lender, to each of which the applicable assignee and assignor hereby irrevocably consent), to (x) pay and satisfy in full all payment liabilities then owed by such Defaulting Lender to the Administrative Agent or any Agent, each LC Issuer, each Swing Line Lender and each other Lender hereunder (and interest accrued thereon) ), and (y) acquire (and fund as appropriate) its full pro rata share of all Loans and participations in Letters of Credit and Swing Loans in accordance with its Applicable Revolving Facility Percentage. Notwithstanding the foregoing, in the event that any assignment of rights and obligations of any Defaulting Lender hereunder shall become effective under applicable law without compliance with the provisions of this paragraph, then the assignee of such interest shall be deemed to be a Defaulting Lender for all purposes of this Agreement until such compliance occurs.
(vii) Notwithstanding anything contained herein, no Lender may assign, sell, negotiate or otherwise transfer its Loans, LC Participations, Swing Line Participations and/or Commitments to any Credit Party or any Affiliate of any of the foregoing, including without limitation, any Permitted Holder or any Affiliate of a Permitted Holder.
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Assignments by Lenders. (i) Any Lender may assign all, or if less than all, a fixed portion, of its Loans, LC Participations, Swing Loan Participations and/or Commitments and its rights and obligations hereunder to one or more Eligible Assignees, each of which shall become a party to this Agreement as a Lender by execution of an Assignment Agreement; provided, however, that:
(A) except in the case of (x) an assignment of the entire remaining amount of the assigning Lender’s Loans and/or Commitments or (y) an assignment to another Lender, an Affiliate of such Lender or an Approved Fund with respect to such Lender, the aggregate amount of the Commitment so assigned (which for this purpose includes the Loans outstanding thereunder) shall not be less than $2,500,000 (unless otherwise mutually agreed upon by 1,000,000 in the Borrower case of any assignment in respect of the Revolving Facility and $1,000,000 in the Administrative Agent)case of any assignment in respect of the Term Loans;
(B) in the case of any assignment to an Eligible Assignee at the time of any such assignment the Lender Register shall be deemed modified to reflect the Commitments of such new Lender and of the existing Lenders;
(C) upon surrender of the old Notes, if any, upon request of the new Lender, new Notes will be issued, at the Borrower’s expense, to such new Lender and to the assigning Lender, to the extent needed to reflect the revised Commitments;; and
(D) unless waived by the Administrative Agent, except in the case of an assignment to another Lender, an Affiliate of such Lender or an Approved Fund with respect to such Lender, or any Lenders in connection with the initial syndication of the Credit Facilities on or after the Closing Date, the Administrative Agent shall receive at the time of each such assignment, from the assigning or assignee Lender, the payment of a non-refundable assignment fee of $3,500; and
(E) any such assignment shall require the prior written consent (such consent (except with respect to assignments to competitors of the Borrower) not to be unreasonably withheld or delayed) of:
(1) the Borrower; provided that no consent of the Borrower shall be required for an assignment (x) by a Lender to any Lender or a U.S. based-Affiliate of any Lender, (y) by a Lender to an Approved Fund and (z) during a Specified Event of Default (unless such assignment is to a Disqualified Lender). Notwithstanding anything in this Section 11.06 to the contrary, if the Borrower has not given the Administrative Agent written notice of its objection to an assignment of Loans within fifteen (15) Business Days after written notice of such assignment, the Borrower shall be deemed to have consented to such assignment;
(2) the Administrative Agent; provided that no consent of the Administrative Agent shall be required for an assignment of a Loan to a Lender, an Affiliate of a Lender or an Approved Fund; and
(3) each LC Issuer and Swing Line Lender; provided that no consent of an LC Issuer or Swing Line Lender shall be required for an assignment of a Loan to a Lender, an Affiliate of a Lender or an Approved Fund.
(ii) To the extent of any assignment pursuant to this subsection subpart (c), the assigning Lender shall be relieved of its obligations hereunder with respect to its assigned CommitmentsCommitments provided, that except to the extent otherwise expressly agreed by the affected parties, no assignment by a Defaulting Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender’s having been a Defaulting Lender.
(iii) At the time of each assignment pursuant to this subsection subpart (c) ), to a Person that is not already a Lender hereunder, the respective assignee Lender shall provide to the Borrower and the Administrative Agent the applicable Internal Revenue Service Forms (and any necessary additional documentation) all other documentation described in Section 3.02(e3.03(g)(i).
(iv) With respect to any Lender, the transfer of any Commitment of such Lender and the rights to the principal of, and interest on, any Loan made pursuant to such Commitment shall not be effective until such transfer is recorded on the Lender Register maintained by the Administrative Agent (on behalf of and acting solely for this purpose as a non-fiduciary agent of the applicable Borrower) with respect to ownership of such Commitment and Loans, including the name and address of the Lenders and the principal amount of the Loans (and stated interest thereon). Prior to such recordation, all amounts owing to the transferor with respect to such Commitment and Loans shall remain owing to the transferor. The registration of assignment or transfer of all or part of any Commitments and Loans shall be recorded by the Administrative Agent on the Lender Register only upon the acceptance by the Administrative Agent of a properly executed and delivered Assignment Agreement pursuant to this subsection subpart (c). The entries in the Lender Register shall be conclusive absent manifest error, and the Borrower, the Administrative Agent and each Lender shall treat each person whose name is recorded in the Lender Register as a Lender hereunder for all purposes of this Agreement notwithstanding any notice to the contrary. The Lender Register shall be available for the inspection by the Borrower and any Lender (solely with respect to its own interest in any Loan or Commitment) at any reasonable time and from time to time upon reasonable prior notice.
(v) [Reserved].
(vi) Nothing in this Section 11.06(c) shall prevent or prohibit (A) any Lender that is a bank, trust company or other financial institution from pledging its Notes or Loans to a Federal Reserve Bank Bank, central banking authority or to any Person that extends credit to such Lender in support of borrowings made by such Lender from such Federal Reserve Bank Bank, central banking authority or such other Person, or (B) any Lender that is a trust, limited liability company, partnership or other investment company from pledging its Notes or Loans to a trustee or agent for the benefit of holders of certificates or debt securities issued by it. No such pledge, or any assignment pursuant to or in lieu of an enforcement of such a pledge, shall relieve the transferor Lender from its obligations hereunder. .
(vi) In connection with any assignment of rights and obligations of any Defaulting Lender hereunder, no such assignment shall be effective unless and until, in addition to the other conditions thereto set forth herein, the parties to the assignment shall make such additional payments to the Administrative Agent in an aggregate amount sufficient, upon distribution thereof as appropriate (which may be outright payment, purchases by the assignee of participations or sub-participationssubparticipations, or other compensating actions, including funding, with the consent of the Borrower and the Administrative Agent, the applicable pro rata share of Loans previously requested but not funded by the Defaulting Lender, to each of which the applicable assignee and assignor hereby irrevocably consent), to (x) pay and satisfy in full all payment liabilities then owed by such Defaulting Lender to the Administrative Agent or any Agent, each LC Issuer and each other Lender hereunder (and interest accrued thereon) ), and (y) acquire (and fund as appropriate) its full pro rata share of all Loans and participations in Letters of Credit and Swing Loans in accordance with its Applicable Revolving Facility Percentage. Notwithstanding the foregoing, in the event that any assignment of rights and obligations of any Defaulting Lender hereunder shall become effective under applicable law without compliance with the provisions of this paragraph, then the assignee of such interest shall be deemed to be a Defaulting Lender for all purposes of this Agreement until such compliance occurs.
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Assignments by Lenders. (i) Any Lender may assign all, to one or if less than all, more ---------------------- assignees all or a fixed portion, portion of its Loans, LC Participations, Swing Loan Participations and/or Commitments and its rights and obligations hereunder to one or more Eligible Assignees, each of which shall become a party to under this Agreement as (including all or a Lender by execution portion of an Assignment Agreementits Commitment and the Loans at the time owing to it); provided, however, that:
provided that (Ai) except in the case of an assignment to a Lender or an -------- Affiliate of a Lender, each of the Borrower and the Administrative Agent (xand, in the case of an assignment of all or a portion of a Commitment or any Lender's obligations in respect of its LC Exposure or Swingline Exposure, the Issuing Bank and the Swingline Lender) must give their prior written consent to such assignment (which consent shall not be unreasonably withheld or delayed), (ii) except in the case of an assignment to a Lender or an Affiliate of a Lender or an assignment of the entire remaining amount of the assigning Lender’s Loans and/or Commitments or 's Commitment, the amount of the Commitment of the assigning Lender subject to each such assignment (y) an assignment to another Lender, an Affiliate determined as of such Lender or an Approved Fund the date the Assignment and Acceptance with respect to such Lender, assignment is delivered to the aggregate amount of the Commitment so assigned (which for this purpose includes the Loans outstanding thereunderAdministrative Agent) shall not be less than $2,500,000 (10,000,000 unless otherwise mutually agreed upon by the Borrower and the Administrative Agent);
(B) in the case each of any assignment to an Eligible Assignee at the time of any such assignment the Lender Register shall be deemed modified to reflect the Commitments of such new Lender and of the existing Lenders;
(C) upon surrender of the old Notes, if any, upon request of the new Lender, new Notes will be issued, at the Borrower’s expense, to such new Lender and to the assigning Lender, to the extent needed to reflect the revised Commitments;
(D) unless waived by the Administrative Agent, except in the case of an assignment to another Lender, an Affiliate of such Lender or an Approved Fund with respect to such Lender, or any Lenders in connection with the initial syndication of the Credit Facilities on or after the Closing Date, the Administrative Agent shall receive at the time of each such assignment, from the assigning or assignee Lender, the payment of a non-refundable assignment fee of $3,500; and
(E) any such assignment shall require the prior written consent (such consent (except with respect to assignments to competitors of the Borrower) not to be unreasonably withheld or delayed) of:
(1) the Borrower; provided that no consent of the Borrower shall be required for an assignment (x) by a Lender to any Lender or a U.S. based-Affiliate of any Lender, (y) by a Lender to an Approved Fund and (z) during a Specified Event of Default (unless such assignment is to a Disqualified Lender). Notwithstanding anything in this Section 11.06 to the contrary, if the Borrower has not given the Administrative Agent written notice of its objection to an assignment of Loans within fifteen (15) Business Days after written notice of such assignment, the Borrower shall be deemed to have consented to such assignment;
(2) the Administrative Agent; provided that no consent of the Administrative Agent shall be required for an assignment of a Loan to a Lender, an Affiliate of a Lender or an Approved Fund; and
(3) each LC Issuer and Swing Line Lender; provided that no consent of an LC Issuer or Swing Line Lender shall be required for an assignment of a Loan to a Lender, an Affiliate of a Lender or an Approved Fund.
(ii) To the extent of any assignment pursuant to this subsection (c), the assigning Lender shall be relieved of its obligations hereunder with respect to its assigned Commitments.
(iii) At the time of each assignment pursuant to this subsection (c) to a Person that is not already a Lender hereunder, the respective assignee Lender shall provide to the Borrower and the Administrative Agent otherwise consent, (iii) each partial assignment shall be made as an assignment of a proportionate part of all the applicable Internal Revenue Service Forms (assigning Lender's rights and any necessary additional documentation) described in Section 3.02(e).
obligations under this Agreement, (iv) With respect to any Lender, the transfer of any Commitment of such Lender and the rights to the principal of, and interest on, any Loan made pursuant to such Commitment shall not be effective until such transfer is recorded on the Lender Register maintained by the Administrative Agent (on behalf of and acting solely for this purpose as a non-fiduciary agent of the applicable Borrower) with respect to ownership of such Commitment and Loans, including the name and address of the Lenders and the principal amount of the Loans (and stated interest thereon). Prior to such recordation, all amounts owing to the transferor with respect to such Commitment and Loans shall remain owing to the transferor. The registration of assignment or transfer of all or part of any Commitments and Loans shall be recorded by the Administrative Agent on the Lender Register only upon the acceptance by the Administrative Agent of a properly executed and delivered Assignment Agreement pursuant to this subsection (c). The entries in the Lender Register shall be conclusive absent manifest error, and the Borrower, the Administrative Agent and each Lender shall treat each person whose name is recorded in the Lender Register as a Lender hereunder for all purposes of this Agreement notwithstanding any notice to the contrary. The Lender Register shall be available for the inspection by the Borrower and any Lender (solely with respect to its own interest in any Loan or Commitment) at any reasonable time and from time to time upon reasonable prior notice.
(v) [Reserved].
(vi) Nothing in this Section 11.06(c) shall prevent or prohibit (A) any Lender that is a bank, trust company or other financial institution from pledging its Notes or Loans to a Federal Reserve Bank or to any Person that extends credit to such Lender in support of borrowings made by such Lender from such Federal Reserve Bank or such other Person, or (B) any Lender that is a trust, limited liability company, partnership or other investment company from pledging its Notes or Loans to a trustee or agent for the benefit of holders of certificates or debt securities issued by it. No such pledge, or any assignment pursuant to or in lieu of an enforcement of such a pledge, shall relieve the transferor Lender from its obligations hereunder. In connection with any assignment of rights and obligations of any Defaulting Lender hereunder, no such assignment shall be effective unless and until, in addition to the other conditions thereto set forth herein, the parties to the each assignment shall make such additional payments execute and deliver to the Administrative Agent in an aggregate amount sufficientAssignment and Acceptance, upon distribution thereof as appropriate together with a processing and recordation fee of $3,500, and (which may v) the assignee, if it shall not be outright paymenta Lender, purchases by shall deliver to the assignee of participations or sub-participations, or other compensating actions, including funding, with the Administrative Agent an Administrative Questionnaire; provided further that any consent of the Borrower -------- ------- otherwise required under this paragraph shall not be required if an Event of Default under clause (h) or (i) of Article VII has occurred and the Administrative Agent, the applicable pro rata share of Loans previously requested but not funded by the Defaulting Lender, is continuing. Subject to each of which the applicable assignee acceptance and assignor hereby irrevocably consent), recording thereof pursuant to paragraph (xd) pay and satisfy in full all payment liabilities then owed by such Defaulting Lender to the Administrative Agent or any Lender hereunder (and interest accrued thereon) and (y) acquire (and fund as appropriate) its full pro rata share of all Loans and participations in Letters of Credit and Swing Loans in accordance with its Applicable Percentage. Notwithstanding the foregoing, in the event that any assignment of rights and obligations of any Defaulting Lender hereunder shall become effective under applicable law without compliance with the provisions of this paragraphSection 10.04, then from and after the effective date specified in each Assignment and Acceptance the assignee of such interest thereunder shall be deemed to be a Defaulting Lender for all purposes of this Agreement until such compliance occurs.party hereto
Appears in 1 contract
Assignments by Lenders. (i) Any Lender may assign all, or if less than all, a fixed portion, of its Loans, LC Participations, Swing Loan Participations and/or Commitments and its rights and obligations hereunder to one or more Eligible Assignees, each of which shall become a party to this Agreement as a Lender by execution of an Assignment Agreement; provided, however, that:
(A) except in the case of (x) an assignment of the entire remaining amount of the assigning Lender’s Loans and/or Commitments or (y) an assignment to another Lender, an Affiliate of such Lender or an Approved Fund with respect to such Lender, the aggregate amount of the Commitment so assigned (which for this purpose includes the Loans outstanding thereunder) shall not be less than $2,500,000 100,000, in the case of Term Loans or $1.0 million, in the case of Revolving Loans and Revolving Commitments (unless otherwise mutually agreed upon by the Parent Borrower and the Administrative Agent);
(B) in the case of any assignment to an Eligible Assignee at the time of any such assignment the Lender Register shall be deemed modified to reflect the Commitments of such new Lender and of the existing Lenders;
(C) upon surrender of the old Notes, if any, upon request of the new Lender, new Notes will be issued, at the Parent Borrower’s expense, to such new Lender and to the assigning Lender, to the extent needed to reflect the revised Commitments;
(D) unless waived by the Administrative Agent, except in the case of an assignment to another Lender, an Affiliate of such Lender or an Approved Fund with respect to such Lender, or any Lenders in connection with the initial syndication of the Credit Facilities on or after the Closing Date, the Administrative Agent shall receive at the time of each such assignment, from the assigning or assignee Lender, the payment of a non-refundable assignment fee of $3,500; and;
(E) any such assignment shall require the prior written consent (such consent (except with respect to assignments to competitors of the Borrower) not to be unreasonably withheld or delayed) of:
(1) the Borrower; provided that no consent of the Parent Borrower shall be required for an assignment (x) by a Lender to any Lender or a U.S. based-Affiliate of any Lender, (y) by a Lender to an Approved Fund and (z) during a Specified Event of Default (unless such assignment is to a Disqualified Lender). Notwithstanding anything in this Section 11.06 to the contrary, if the Borrower has not given the Administrative Agent written notice of its objection to an assignment of Loans within fifteen (15) Business Days after written notice of such assignment, the Borrower shall will be deemed to have consented given the consent required in the definition of “Eligible Assignee” to such assignment;
Assignment if Parent Borrower has not responded in writing within ten (210) the Administrative Agent; provided that no consent of the Administrative Agent shall be required for an assignment Business Days of a Loan to a Lender, an Affiliate of a Lender or an Approved Fund; and
(3) each LC Issuer and Swing Line Lender; provided that no consent of an LC Issuer or Swing Line Lender shall be required request for an assignment of a Loan to a Lender, an Affiliate of a Lender or an Approved Fundconsent.
(ii) To the extent of any assignment pursuant to this subsection subpart (c), the assigning Lender shall be relieved of its obligations hereunder with respect to its assigned Commitments.
(iii) At the time of each assignment pursuant to this subsection subpart (c) to a Person that is not already a Lender hereunder, the respective assignee Lender shall provide to the Parent Borrower and the Administrative Agent the applicable Internal Revenue Service Forms (and any necessary additional documentation) described in Section 3.02(e3.02(g).. Table of Contents
(iv) With respect to any Lender, the transfer of any Commitment of such Lender and the rights to the principal of, and interest on, any Loan made pursuant to such Commitment shall not be effective until such transfer is recorded on the Lender Register maintained by the Administrative Agent (on behalf of and acting solely for this purpose as a non-fiduciary agent of the applicable Borrower) with respect to ownership of such Commitment and Loans, including the name and address of the Lenders and the principal amount of the Loans (and stated interest thereon). Prior to such recordation, all amounts owing to the transferor with respect to such Commitment and Loans shall remain owing to the transferor. The registration of assignment or transfer of all or part of any Commitments and Loans shall be recorded by the Administrative Agent on the Lender Register only upon the acceptance by the Administrative Agent of a properly executed and delivered Assignment Agreement pursuant to this subsection subpart (c). The entries in the Lender Register shall be conclusive absent manifest error, and the each Borrower, the Administrative Agent and each Lender shall treat each person whose name is recorded in the Lender Register as a Lender hereunder for all purposes of this Agreement notwithstanding any notice to the contrary. The Lender Register shall be available for the inspection by the Parent Borrower and any Lender (solely with respect to its own interest in any Loan or Commitment) at any reasonable time and from time to time upon reasonable prior notice.
(v) [Reserved]Notwithstanding the foregoing, in no event shall the Administrative Agent be obligated to ascertain, monitor or inquire as to whether any Lender is an Affiliated Lender nor shall the Administrative Agent be obligated to monitor the aggregate amount of Term Loans held by Affiliated Lenders. Upon request by the Administrative Agent, the Parent Borrower shall (i) promptly (and in any case, not less than five (5) Business Days (or shorter period as agreed to by the Administrative Agent) prior to the proposed effective date of any amendment, consent or waiver pursuant to Section 11.12) provide to the Administrative Agent, a complete list of all Affiliated Lenders holding Term Loans at such time and (ii) not less than five (5) Business Days (or shorter period as agreed to by the Administrative Agent) prior to the proposed effective date of any amendment, consent or waiver pursuant to Section 11.12, provide to the Administrative Agent, a complete list of all Affiliated Debt Funds holding Term Loans at such time.
(vi) Nothing in this Section 11.06(c) shall prevent or prohibit (A) any Lender that is a bank, trust company or other financial institution from pledging its Notes or Loans to a Federal Reserve Bank or to any Person that extends credit to such Lender in support of borrowings made by such Lender from such Federal Reserve Bank or such other Person, or (B) any Lender that is a trust, limited liability company, partnership or other investment company from pledging its Notes or Loans to a trustee or agent for the benefit of holders of certificates or debt securities issued by it. No such pledge, or any assignment pursuant to or in lieu of an enforcement of such a pledge, shall relieve the transferor Lender from its obligations hereunder. In connection with any assignment of rights and obligations of any Defaulting Lender hereunder, no such assignment shall be effective unless and until, in addition to the other conditions thereto set forth herein, the parties to the assignment shall make such additional payments to the Administrative Agent in an aggregate amount sufficient, upon distribution thereof as appropriate (which may be outright payment, purchases by the assignee of participations or sub-participations, or other compensating actions, including funding, with the consent of the Borrower and the Administrative Agent, the applicable pro rata share of Loans previously requested but not funded by the Defaulting Lender, to each of which the applicable assignee and assignor hereby irrevocably consent), to (x) pay and satisfy in full all payment liabilities then owed by such Defaulting Lender to the Administrative Agent or any Lender hereunder (and interest accrued thereon) and (y) acquire (and fund as appropriate) its full pro rata share of all Loans and participations in Letters of Credit and Swing Loans in accordance with its Applicable Percentage. Notwithstanding the foregoing, in the event that any assignment of rights and obligations of any Defaulting Lender hereunder shall become effective under applicable law without compliance with the provisions of this paragraph, then the assignee of such interest shall be deemed to be a Defaulting Lender for all purposes of this Agreement until such compliance occurs.
Appears in 1 contract
Assignments by Lenders. (i) Any Lender may may, with the prior written consent of the Agent, and with prior notice to the Borrowers, but without the consent of the Borrowers, assign allto any Person reasonably acceptable to the Borrowers (each an "Assignee" and collectively, the "Assignees") all or if less than alla portion of such Lender's Commitments. Any Lender which elects to make such an assignment shall pay to the Agent, a fixed portionfor the exclusive benefit of the Agent, an administrative fee for processing each such assignment in the amount of its Loans, LC Participations, Swing Loan Participations and/or Commitments Three Thousand Dollars ($3,000.00). Such Lender and its rights Assignee shall notify the Agent and obligations hereunder to one or more Eligible Assignees, each of which shall become a party to this Agreement as a Lender by execution of an Assignment Agreement; provided, however, that:
(A) except the Borrowers in the case of (x) an assignment writing of the entire remaining amount of date on which the assigning Lender’s Loans and/or Commitments assignment is to be effective (the "Adjustment Date"). On or (y) an assignment to another Lenderbefore the Adjustment Date, an Affiliate of such Lender or an Approved Fund with respect to such Lender, the aggregate amount of the Commitment so assigned (which for this purpose includes the Loans outstanding thereunder) shall not be less than $2,500,000 (unless otherwise mutually agreed upon by the Borrower and the Administrative Agent);
(B) in the case of any assignment to an Eligible Assignee at the time of any such assignment the Lender Register shall be deemed modified to reflect the Commitments of such new Lender and of the existing Lenders;
(C) upon surrender of the old Notes, if any, upon request of the new Lender, new Notes will be issued, at the Borrower’s expense, to such new Lender and to the assigning Lender, the Agent, the Borrowers and the respective Assignee shall execute and deliver a written assignment agreement in the form attached hereto as EXHIBIT F, which shall constitute an amendment to this Agreement to the extent needed necessary to reflect such assignment. Upon the revised Commitments;
(D) unless waived by the Administrative Agent, except in the case request of any assigning Lender following an assignment to another Lender, an Affiliate of such Lender or an Approved Fund made in accordance with respect to such Lender, or any Lenders in connection with the initial syndication of the Credit Facilities on or after the Closing Datethis Section 8.5, the Administrative Agent Borrowers shall receive at issue new Notes to the time of each assigning Lender and its Assignee reflecting such assignment, from in exchange for the existing Notes held by the assigning Lender. In addition, notwithstanding the foregoing, any Lender may at any time pledge all or assignee any portion of such Lender's rights under this Agreement, the payment of a non-refundable assignment fee of $3,500; and
(E) any such assignment shall require the prior written consent (such consent (except with respect to assignments to competitors of the Borrower) not to be unreasonably withheld Commitments or delayed) of:
(1) the Borrower; provided that no consent any of the Borrower shall be required for an assignment (x) by a Lender to any Lender or a U.S. based-Affiliate of any Lender, (y) by a Lender to an Approved Fund and (z) during a Specified Event of Default (unless such assignment is to a Disqualified Lender). Notwithstanding anything in this Section 11.06 to the contrary, if the Borrower has not given the Administrative Agent written notice of its objection to an assignment of Loans within fifteen (15) Business Days after written notice of such assignment, the Borrower shall be deemed to have consented to such assignment;
(2) the Administrative Agent; provided that no consent of the Administrative Agent shall be required for an assignment of a Loan to a Lender, an Affiliate of a Lender or an Approved Fund; and
(3) each LC Issuer and Swing Line Lender; provided that no consent of an LC Issuer or Swing Line Lender shall be required for an assignment of a Loan to a Lender, an Affiliate of a Lender or an Approved Fund.
(ii) To the extent of any assignment pursuant to this subsection (c), the assigning Lender shall be relieved of its obligations hereunder with respect to its assigned Commitments.
(iii) At the time of each assignment pursuant to this subsection (c) to a Person that is not already a Lender hereunder, the respective assignee Lender shall provide to the Borrower and the Administrative Agent the applicable Internal Revenue Service Forms (and any necessary additional documentation) described in Section 3.02(e).
(iv) With respect to any Lender, the transfer of any Commitment of such Lender and the rights to the principal of, and interest on, any Loan made pursuant to such Commitment shall not be effective until such transfer is recorded on the Lender Register maintained by the Administrative Agent (on behalf of and acting solely for this purpose as a non-fiduciary agent of the applicable Borrower) with respect to ownership of such Commitment and Loans, including the name and address of the Lenders and the principal amount of the Loans (and stated interest thereon). Prior to such recordation, all amounts owing to the transferor with respect to such Commitment and Loans shall remain owing to the transferor. The registration of assignment or transfer of all or part of any Commitments and Loans shall be recorded by the Administrative Agent on the Lender Register only upon the acceptance by the Administrative Agent of a properly executed and delivered Assignment Agreement pursuant to this subsection (c). The entries in the Lender Register shall be conclusive absent manifest error, and the Borrower, the Administrative Agent and each Lender shall treat each person whose name is recorded in the Lender Register as a Lender hereunder for all purposes of this Agreement notwithstanding any notice to the contrary. The Lender Register shall be available for the inspection by the Borrower and any Lender (solely with respect to its own interest in any Loan or Commitment) at any reasonable time and from time to time upon reasonable prior notice.
(v) [Reserved].
(vi) Nothing in this Section 11.06(c) shall prevent or prohibit (A) any Lender that is a bank, trust company or other financial institution from pledging its Notes or Loans Obligations to a Federal Reserve Bank or to any Person that extends credit to such Lender in support of borrowings made by such Lender from such Federal Reserve Bank or such other Person, or (B) any Lender that is a trust, limited liability company, partnership or other investment company from pledging its Notes or Loans to a trustee or agent for the benefit of holders of certificates or debt securities issued by it. No such pledge, or any assignment pursuant to or in lieu of an enforcement of such a pledge, shall relieve the transferor Lender from its obligations hereunder. In connection with any assignment of rights and obligations of any Defaulting Lender hereunder, no such assignment shall be effective unless and until, in addition to the other conditions thereto set forth herein, the parties to the assignment shall make such additional payments to the Administrative Agent in an aggregate amount sufficient, upon distribution thereof as appropriate (which may be outright payment, purchases by the assignee of participations or sub-participations, or other compensating actions, including funding, with the consent of the Borrower and the Administrative Agent, the applicable pro rata share of Loans previously requested but not funded by the Defaulting Lender, to each of which the applicable assignee and assignor hereby irrevocably consent), to (x) pay and satisfy in full all payment liabilities then owed by such Defaulting Lender to the Administrative Agent or any Lender hereunder (and interest accrued thereon) and (y) acquire (and fund as appropriate) its full pro rata share of all Loans and participations in Letters of Credit and Swing Loans in accordance with its Applicable Percentage. Notwithstanding the foregoing, in the event that any assignment of rights and obligations of any Defaulting Lender hereunder shall become effective under applicable law without compliance with the provisions of this paragraph, then the assignee of such interest shall be deemed to be a Defaulting Lender for all purposes of this Agreement until such compliance occursBank.
Appears in 1 contract
Assignments by Lenders. (i) Any Lender may assign all, to one or if less than all, more banks or other financial institutions (including funds) all or a fixed portion, portion of its Loans, LC Participations, Swing Loan Participations and/or Commitments and its rights and obligations hereunder to one or more Eligible Assignees, each of which shall become a party to under this Agreement as (including all or a Lender by execution portion of an Assignment Agreementits Commitments and the Loans at the time owing to it); provided, however, provided that:
(Ai) except in the case of an assignment to a Lender or an Affiliate of a Lender or an Approved Fund, each of the Borrower and the Administrative Agent (xand, in the case of an assignment of all or a portion of a Revolving Credit Commitment or any Revolving Credit Lender's obligations in respect of its LC Exposure, each Issuing Bank) must give their prior written consent to such assignment (which consent shall not be unreasonably withheld or delayed) and, in the case of any such assignment as to which no consent of the Administrative Agent is required, the Administrative Agent shall have acknowledged receipt of such assignment,
(ii) except in the case of an assignment to a Lender or an Affiliate of a Lender or an Approved Fund or an assignment of the entire remaining amount of the assigning Lender’s Loans and/or 's Commitments, the amount of the Commitments or of the assigning Lender subject to each such assignment (y) an assignment to another Lender, an Affiliate determined as of such Lender or an Approved Fund the date the Assignment and Acceptance with respect to such Lender, assignment is delivered to the aggregate amount of the Commitment so assigned (which for this purpose includes the Loans outstanding thereunderAdministrative Agent) shall not be less than $2,500,000 (5,000,000 unless otherwise mutually agreed upon by each of the Borrower and the Administrative Agent);Agent otherwise consents,
(Biii) each partial assignment of rights with respect to any Class of Loans and/or Commitments 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 such Class (including, in the case of any assignment to an Eligible Assignee at the time of any such assignment the Lender Register shall be deemed modified to reflect the Commitments Revolving Credit Commitments, of such new Lender and a proportionate part of the existing Lenders;
(C) upon surrender of the old Notes, if any, upon request of the new Lender, new Notes will be issued, at the Borrower’s expense, to such new Lender and to the assigning Lender's LC Exposure), to the extent needed to reflect the revised Commitments;Credit Agreement
(Div) unless waived by the Administrative Agent, except in the case of an parties to each assignment shall execute and deliver to another Lender, an Affiliate of such Lender or an Approved Fund with respect to such Lender, or any Lenders in connection with the initial syndication of the Credit Facilities on or after the Closing Date, the Administrative Agent shall receive at (with sufficient copies for the time of each such assignment, from the assigning or assignee Lenderassignor, the payment of assignee and the Borrower) an Assignment and Acceptance, together with a non-refundable assignment processing and recordation fee of $3,500; , and
(E) any such assignment shall require the prior written consent (such consent (except with respect to assignments to competitors of the Borrower) not to be unreasonably withheld or delayed) of:
(1v) the Borrowerassignee, if it shall not be a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire; provided provided, further that no any consent of the Borrower otherwise required under this paragraph shall not be required for if an assignment (x) by a Lender to any Lender or a U.S. based-Affiliate of any Lender, (y) by a Lender to an Approved Fund and (z) during a Specified Event of Default under clause (unless such assignment is to a Disqualified Lender). Notwithstanding anything in this Section 11.06 to the contrary, if the Borrower has not given the Administrative Agent written notice of its objection to an assignment of Loans within fifteen (15h) Business Days after written notice of such assignment, the Borrower shall be deemed to have consented to such assignment;
(2) the Administrative Agent; provided that no consent of the Administrative Agent shall be required for an assignment of a Loan to a Lender, an Affiliate of a Lender or an Approved Fund; and
(3) each LC Issuer and Swing Line Lender; provided that no consent of an LC Issuer or Swing Line Lender shall be required for an assignment of a Loan to a Lender, an Affiliate of a Lender or an Approved Fund.
(ii) To the extent of any assignment pursuant to this subsection (c), the assigning Lender shall be relieved of its obligations hereunder with respect to its assigned Commitments.
(iii) At the time of each assignment pursuant to this subsection (c) to a Person that is not already a Lender hereunder, the respective assignee Lender shall provide to the Borrower and the Administrative Agent the applicable Internal Revenue Service Forms (and any necessary additional documentation) described in Section 3.02(e).
(iv) With respect to any Lender, the transfer of any Commitment of such Lender and the rights to the principal of, and interest on, any Loan made pursuant to such Commitment shall not be effective until such transfer is recorded on the Lender Register maintained by the Administrative Agent (on behalf of and acting solely for this purpose as a non-fiduciary agent of the applicable Borrower) with respect to ownership of such Commitment and Loans, including the name and address of the Lenders and the principal amount of the Loans (and stated interest thereon). Prior to such recordation, all amounts owing to the transferor with respect to such Commitment and Loans shall remain owing to the transferor. The registration of assignment or transfer of all or part of any Commitments and Loans shall be recorded by the Administrative Agent on the Lender Register only upon the acceptance by the Administrative Agent of a properly executed and delivered Assignment Agreement pursuant to this subsection (c). The entries in the Lender Register shall be conclusive absent manifest error, and the Borrower, the Administrative Agent and each Lender shall treat each person whose name is recorded in the Lender Register as a Lender hereunder for all purposes of this Agreement notwithstanding any notice to the contrary. The Lender Register shall be available for the inspection by the Borrower and any Lender (solely with respect to its own interest in any Loan or Commitment) at any reasonable time and from time to time upon reasonable prior notice.
(v) [Reserved].
(vi) Nothing in this Section 11.06(c) shall prevent or prohibit (A) any Lender that is a bank, trust company or other financial institution from pledging its Notes or Loans to a Federal Reserve Bank or to any Person that extends credit to such Lender in support of borrowings made by such Lender from such Federal Reserve Bank or such other Person, or (Bi) any Lender that of Article VIII has occurred and is a trust, limited liability company, partnership or other investment company from pledging its Notes or Loans to a trustee or agent for the benefit of holders of certificates or debt securities issued by it. No such pledge, or any assignment pursuant to or in lieu of an enforcement of such a pledge, shall relieve the transferor Lender from its obligations hereunder. In connection with any assignment of rights and obligations of any Defaulting Lender hereunder, no such assignment shall be effective unless and until, in addition to the other conditions thereto set forth herein, the parties to the assignment shall make such additional payments to the Administrative Agent in an aggregate amount sufficient, upon distribution thereof as appropriate (which may be outright payment, purchases by the assignee of participations or sub-participations, or other compensating actions, including funding, with the consent of the Borrower and the Administrative Agent, the applicable pro rata share of Loans previously requested but not funded by the Defaulting Lender, to each of which the applicable assignee and assignor hereby irrevocably consent), to (x) pay and satisfy in full all payment liabilities then owed by such Defaulting Lender to the Administrative Agent or any Lender hereunder (and interest accrued thereon) and (y) acquire (and fund as appropriate) its full pro rata share of all Loans and participations in Letters of Credit and Swing Loans in accordance with its Applicable Percentage. Notwithstanding the foregoing, in the event that any assignment of rights and obligations of any Defaulting Lender hereunder shall become effective under applicable law without compliance with the provisions of this paragraph, then the assignee of such interest shall be deemed to be a Defaulting Lender for all purposes of this Agreement until such compliance occurscontinuing.
Appears in 1 contract
Assignments by Lenders. (i) Any Lender may assign all, or if less than all, a fixed portion, of its Loans, LC Participations, Swing Loan Participations and/or Commitments and its rights and obligations hereunder to one or more Eligible Assignees, each of which shall become a party to this Agreement as a Lender by execution of an Assignment Agreement; provided, however, that:
(A) except in the case of (x) an assignment of the entire remaining amount of the assigning Lender’s Loans and/or Commitments or (y) an assignment to another Lender, an Affiliate of such Lender or an Approved Fund with respect to such Lender, the aggregate amount of the Commitment so assigned (which for this purpose includes the Loans outstanding thereunder) shall not be less than $2,500,000 1.0 million, in the case of Term Loans or $2.0 million, in the case of Revolving Loans and Revolving Commitments (unless otherwise mutually agreed upon by the Parent Borrower and the Administrative Agent);
(B) in the case of any assignment to an Eligible Assignee at the time of any such assignment the Lender Register shall be deemed modified to reflect the Commitments of such new Lender and of the existing Lenders;
(C) upon surrender of the old Notes, if any, upon request of the new Lender, new Notes will be issued, at the Parent Borrower’s expense, to such new Lender and to the assigning Lender, to the extent needed to reflect the revised Commitments;
(D) unless waived by the Administrative Agent, except in the case of an assignment to another Lender, an Affiliate of such Lender or an Approved Fund with respect to such Lender, or any Lenders in connection with the initial syndication of the Credit Facilities on or after the Closing Date, the Administrative Agent shall receive at the time of each such assignment, from the assigning or assignee Lender, the payment of a non-refundable assignment fee of $3,500; and;
(E) any such assignment shall require the prior written consent (such consent (except with respect to assignments to competitors of the Borrower) not to be unreasonably withheld or delayed) of:
(1) the Borrower; provided that no consent of the Parent Borrower shall be required for an assignment (x) by a Lender to any Lender or a U.S. based-Affiliate of any Lender, (y) by a Lender to an Approved Fund and (z) during a Specified Event of Default (unless such assignment is to a Disqualified Lender). Notwithstanding anything in this Section 11.06 to the contrary, if the Borrower has not given the Administrative Agent written notice of its objection to an assignment of Loans within fifteen (15) Business Days after written notice of such assignment, the Borrower shall will be deemed to have consented given the consent required in the definition of “Eligible Assignee” to such assignment;
Assignment if Parent Borrower has not responded in writing within five (25) the Administrative Agent; provided that no consent of the Administrative Agent shall be required for an assignment Business Days of a Loan to a Lender, an Affiliate of a Lender or an Approved Fund; and
(3) each LC Issuer and Swing Line Lender; provided that no consent of an LC Issuer or Swing Line Lender shall be required request for an assignment of a Loan to a Lender, an Affiliate of a Lender or an Approved Fundconsent.
(ii) To the extent of any assignment pursuant to this subsection subpart (c), the assigning Lender shall be relieved of its obligations hereunder with respect to its assigned Commitments.
(iii) At the time of each assignment pursuant to this subsection subpart (c) to a Person that is not already a Lender hereunder, the respective assignee Lender shall provide to the Parent Borrower and the Administrative Agent the applicable Internal Revenue Service Forms (and any necessary additional documentation) described in Section 3.02(e3.02(g).
(iv) With respect to any Lender, the transfer of any Commitment of such Lender and the rights to the principal of, and interest on, any Loan made pursuant to such Commitment shall not be effective until such transfer is recorded on the Lender Register maintained by the Administrative Agent (on behalf of and acting solely for this purpose as a non-fiduciary agent of the applicable BorrowerBorrowers) with respect to ownership of such Commitment and Loans, including the name and address of the Lenders and the principal amount of the Loans (and stated interest thereon). Prior to such recordation, all amounts owing to the transferor with respect to such Commitment and Loans shall remain owing to the transferor. The registration of assignment or transfer of all or part of any Commitments and Loans shall be recorded by the Administrative Agent on the Lender Register only upon the acceptance by the Administrative Agent of a properly executed and delivered Assignment Agreement pursuant to this subsection subpart (c). The entries in the Lender Register shall be conclusive absent manifest error, and the each Borrower, the Administrative Agent and each Lender shall treat each person whose name is recorded in the Lender Register as a Lender hereunder for all purposes of this Agreement notwithstanding any notice to the contrary. The Lender Register shall be available for the inspection by the Parent Borrower and any Lender (solely with respect to its own interest in any Loan or Commitment) at any reasonable time and from time to time upon reasonable prior notice.
(v) [Reserved]Notwithstanding the foregoing, in no event shall the Administrative Agent be obligated to ascertain, monitor or inquire as to whether any Lender is an Affiliated Lender nor shall the Administrative Agent be obligated to monitor the aggregate amount of Term Loans held by Affiliated Lenders. Upon request by the Administrative Agent, the Parent Borrower shall (i) promptly (and in any case, not less than five (5) Business Days (or shorter period as agreed to by the Administrative Agent) prior to the proposed effective date of any amendment, consent or waiver pursuant to Section 11.12) provide to the Administrative Agent, a complete list of all Affiliated Lenders holding Term Loans at such time and (ii) not less than five (5) Business Days (or shorter period as agreed to by the Administrative Agent) prior to the proposed effective date of any amendment, consent or waiver pursuant to Section 11.12, provide to the Administrative Agent, a complete list of all Affiliated Debt Funds holding Term Loans at such time.
(vi) Nothing in this Section 11.06(c) shall prevent or prohibit (A) any Lender that is a bank, trust company or other financial institution from pledging its Notes or Loans to a Federal Reserve Bank or to any Person that extends credit to such Lender in support of borrowings made by such Lender from such Federal Reserve Bank or such other Person, or (B) any Lender that is a trust, limited liability company, partnership or other investment company from pledging its Notes or Loans to a trustee or agent for the benefit of holders of certificates or debt securities issued by it. No such pledge, or any assignment pursuant to or in lieu of an enforcement of such a pledge, shall relieve the transferor Lender from its obligations hereunder. In connection with any assignment of rights and obligations of any Defaulting Lender hereunder, no such assignment shall be effective unless and until, in addition to the other conditions thereto set forth herein, the parties to the assignment shall make such additional payments to the Administrative Agent in an aggregate amount sufficient, upon distribution thereof as appropriate (which may be outright payment, purchases by the assignee of participations or sub-participationssubparticipations, or other compensating actions, including funding, with the consent of the Parent Borrower and the Administrative Agent, the applicable pro rata share of Loans previously requested but not funded by the Defaulting Lender, to each of which the applicable assignee and assignor hereby irrevocably consent), to (x) pay and satisfy in full all payment liabilities then owed by such Defaulting Lender to the Administrative Agent or any Lender hereunder (and interest accrued thereon) and (y) acquire (and fund as appropriate) its full pro rata share of all Loans and participations in Letters of Credit and Swing Loans in accordance with its Applicable Percentage. Notwithstanding the foregoing, in the event that any assignment of rights and obligations of any Defaulting Lender hereunder shall become effective under applicable law without compliance with the provisions of this paragraph, then the assignee of such interest shall be deemed to be a Defaulting Lender for all purposes of this Agreement until such compliance occurs.
Appears in 1 contract
Samples: Credit Agreement (PGT, Inc.)
Assignments by Lenders. (i) Any Lender may assign all, or if less than all, a fixed portion, of its Loans, LC Participations, Swing Loan Participations and/or Commitments and its rights and obligations hereunder to one or more Eligible Assignees, each of which shall become a party to this Agreement as a Lender by execution of an Assignment Agreement; provided, however, that:
(A) except in the case of (x) an assignment of the entire remaining amount of the assigning Lender’s Loans and/or Commitments or (y) an assignment to another Lender, an Affiliate of such Lender or an Approved Fund with respect to such Lender, the aggregate amount of the Commitment so assigned (which for this purpose includes the Loans outstanding thereunder) shall not be less than $2,500,000 7,500,000 (unless otherwise mutually agreed upon by the Borrower and the Administrative Agentor an integral multiple of $1,000,000 in excess thereof);
(B) in the case of any assignment to an Eligible Assignee at the time of any such assignment the Lender Register shall be deemed modified to reflect the Commitments of such new Lender and of the existing LendersLenders (and no assignment shall be effective hereunder unless recorded in the Lender Register as provided herein);
(C) upon surrender of the old Notes, if any, upon request of the new Lender, new Notes will be issued, at the Borrower’s expense, to such new Lender and to the assigning Lender, to the extent needed to reflect the revised Commitments;
(D) unless waived by the Administrative Agent, except in the case of an assignment to another Lender, an Affiliate of such Lender or an Approved Fund with respect to such Lender, or any Lenders in connection with the initial syndication of the Credit Facilities on or after the Closing Date, the Administrative Agent shall receive at the time of each such assignment, from the assigning or assignee Lender, the payment of a non-refundable assignment fee of $3,5001,000;
(E) no such assignment shall be made to any Defaulting Lender or any Impacted Lender; and
(EF) in connection with any assignment of rights and obligations of any Defaulting Lender or Impacted Lender hereunder, no such assignment shall require the prior written consent (such consent (except with respect to assignments to competitors of the Borrower) not to be unreasonably withheld or delayed) of:
(1) the Borrower; provided that no consent of the Borrower shall be required for an assignment (x) by a Lender to any Lender or a U.S. based-Affiliate of any Lendereffective unless and until, (y) by a Lender to an Approved Fund and (z) during a Specified Event of Default (unless such assignment is to a Disqualified Lender). Notwithstanding anything in this Section 11.06 addition to the contraryother conditions thereto set forth herein, if the Borrower has not given parties to the assignment shall make such additional payments to the Administrative Agent written notice in an aggregate amount sufficient, upon distribution thereof as appropriate (which may be outright payment, purchases by the assignee of its objection participations or subparticipations, or other compensating actions, to an assignment each of Loans within fifteen (15) Business Days after written notice of such assignmentwhich the applicable assignees and assignor hereby irrevocably consent), the Borrower shall be deemed to have consented pay and satisfy in full all Defaulted Credits and Defaulted Payments and interest accrued thereon attributable to such assignment;
(2) the Administrative Agent; provided that no consent of the Administrative Agent shall be required for an assignment of a Loan to a Defaulting Lender or Impacted Lender, an Affiliate of a Lender or an Approved Fund; and
(3) each LC Issuer and Swing Line Lender; provided that no consent of an LC Issuer or Swing Line Lender shall be required for an assignment of a Loan to a Lender, an Affiliate of a Lender or an Approved Fundas the case may be.
(ii) To the extent of any assignment pursuant to this subsection subpart (c), the assigning Lender shall be relieved of its obligations hereunder with respect to its assigned Commitments.
(iii) At the time of each assignment pursuant to this subsection subpart (c) ), to a Person that is not already a Lender hereunder, the respective assignee Lender shall provide to the Borrower and the Administrative Agent the applicable Internal Revenue Service Forms (and any necessary additional documentation) described in Section 3.02(e3.03(b) or (c), as appropriate.
(iv) With respect to any Lender, the transfer of any Commitment of such Lender and the rights to the principal of, and interest on, any Loan made pursuant to such Commitment shall not be effective until such transfer is recorded on the Lender Register maintained by the Administrative Agent (on behalf of and acting solely for this purpose as a non-fiduciary agent of the applicable Borrower) with respect to ownership of such Commitment and Loans, including the name Loans and address of the Lenders and the principal amount of the Loans (and stated interest thereon). Prior prior to such recordation, recordation all amounts owing to the transferor with respect to such Commitment and Loans shall remain owing to the transferor. The registration of assignment or transfer of all or part of any Commitments and Loans shall be recorded by the Administrative Agent on the Lender Register only upon the acceptance by the Administrative Agent of a properly executed and delivered Assignment Agreement pursuant to this subsection subpart (c). The entries in the Lender Register shall be conclusive absent manifest error, and the Borrower, the Administrative Agent and each Lender shall treat each person whose name is recorded in the Lender Register as a Lender hereunder for all purposes of this Agreement notwithstanding any notice to the contrary. The Lender Register shall be available for the inspection by the Borrower and any Lender (solely with respect to its own interest in any Loan or Commitment) at any reasonable time and from time to time upon reasonable prior notice.
(v) [Reserved].
(vi) Nothing in this Section 11.06(c) shall prevent or prohibit (A) any Lender that is a bank, trust company or other financial institution from pledging its Notes or Loans to a Federal Reserve Bank or to any Person that extends credit to such Lender in support of borrowings made by such Lender from such Federal Reserve Bank or such other PersonBank, or (B) any Lender that is a trust, limited liability company, partnership or other investment company from pledging its Notes or Loans to a trustee or agent for the benefit of holders of certificates or debt securities issued by it. No such pledge, or any assignment pursuant to or in lieu of an enforcement of such a pledge, shall relieve the transferor Lender from its obligations hereunder. In connection with any assignment of rights and obligations of any Defaulting Lender hereunder, no such assignment shall be effective unless and until, in addition to the other conditions thereto set forth herein, the parties to the assignment shall make such additional payments to the Administrative Agent in an aggregate amount sufficient, upon distribution thereof as appropriate (which may be outright payment, purchases by the assignee of participations or sub-participations, or other compensating actions, including funding, with the consent of the Borrower and the Administrative Agent, the applicable pro rata share of Loans previously requested but not funded by the Defaulting Lender, to each of which the applicable assignee and assignor hereby irrevocably consent), to (x) pay and satisfy in full all payment liabilities then owed by such Defaulting Lender to the Administrative Agent or any Lender hereunder (and interest accrued thereon) and (y) acquire (and fund as appropriate) its full pro rata share of all Loans and participations in Letters of Credit and Swing Loans in accordance with its Applicable Percentage. Notwithstanding the foregoing, in the event that any assignment of rights and obligations of any Defaulting Lender hereunder shall become effective under applicable law without compliance with the provisions of this paragraph, then the assignee of such interest shall be deemed to be a Defaulting Lender for all purposes of this Agreement until such compliance occurs.
Appears in 1 contract
Assignments by Lenders. (i) Any Lender may assign all, or if less than all, a fixed portion, of its Loans, LC Participations, Swing Loan Participations and/or Commitments and its rights and obligations hereunder to one or more Eligible Assignees, each of which shall become a party to this Agreement as a Lender by execution of an Assignment Agreement; provided, however, that:
(A) except in the case of (x) an assignment of the entire remaining amount of the assigning Lender’s Loans and/or Commitments or (y) an assignment to another Lender, an Affiliate of such Lender or an Approved Fund with respect to such Lender, the aggregate amount of the Commitment so assigned (which for this purpose includes the Loans outstanding thereunder) shall not be less than $2,500,000 (unless otherwise mutually agreed upon by the Borrower and the Administrative Agent)5,000,000;
(B) in the case of any assignment to an Eligible Assignee at the time of any such assignment the Lender Register shall be deemed modified to reflect the Commitments of such new Lender and of the existing Lenders;
(C) upon surrender of the old Notes, if any, upon request of the new Lender, new Notes will be issued, at the Borrower’s expense, to such new Lender and to the assigning Lender, to the extent needed to reflect the revised Commitments;
(D) unless waived by the Administrative Agent, except in the case of an assignment to another Lender, an Affiliate of such Lender or an Approved Fund with respect to such Lender, or any Lenders in connection with the initial syndication of the Credit Facilities on or after the Closing Date, the Administrative Agent shall receive at the time of each such assignment, from the assigning or assignee Lender, the payment of a non-refundable assignment fee of $3,500;
(E) the Administrative Agent’s consent shall be required for any assignment; and
(E) any such assignment shall require the prior written consent (such consent (except with respect to assignments to competitors of the Borrower) not to be unreasonably withheld or delayed) of:
(1F) the Borrower; provided that no consent of the Borrower ’s consent, which shall not be unreasonably withheld, shall be required for an any assignment unless (x) by a Lender to any Lender an Event of Default under Section 8.01(a) and (i) has occurred and is continuing or a U.S. based-Affiliate of any Lender, (y) by a Lender to an Approved Fund and (z) during a Specified Event of Default (unless such assignment is to a Disqualified Lender). Notwithstanding anything in this Section 11.06 to the contrary, if the Borrower has not given the Administrative Agent written notice of its objection to an assignment of Loans within fifteen (15) Business Days after written notice of such assignment, the Borrower shall be deemed to have consented to such assignment;
(2) the Administrative Agent; provided that no consent of the Administrative Agent shall be required for an assignment of a Loan to a Lender, an Affiliate of a Lender or an Approved Fund; and
(3) each LC Issuer and Swing Line Lender; provided that no consent of an LC Issuer or Swing Line Lender shall be required for an assignment of a Loan to a another Lender, an Affiliate of a Lender or an Approved Fund.
(ii) To the extent of any assignment pursuant to this subsection subpart (c), the assigning Lender shall be relieved of its obligations hereunder with respect to its assigned CommitmentsCommitments provided, that except to the extent otherwise expressly agreed by the affected parties, no assignment by a Defaulting Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender’s having been a Defaulting Lender.
(iii) At the time of each assignment pursuant to this subsection subpart (c) ), to a Person that is not already a Lender hereunder, the respective assignee Lender shall provide to the Borrower and the Administrative Agent the applicable Internal Revenue Service Forms (and any necessary additional documentation) described in Section 3.02(eSection 3.03(g).
(iv) With respect to any Lender, the transfer of any Commitment of such Lender and the rights to the principal of, and interest on, any Loan made pursuant to such Commitment shall not be effective until such transfer is recorded on the Lender Register maintained by the Administrative Agent (on behalf of and acting solely for this purpose as a non-fiduciary agent of the applicable Borrower) with respect pursuant to ownership of such Commitment and Loans, including the name and address of the Lenders and the principal amount of the Loans (and stated interest thereonSection 2.08(b). Prior to such recordation, all amounts owing to the transferor with respect to such Commitment and Loans shall remain owing to the transferor. The registration of assignment or transfer of all or part of any Commitments and Loans shall be recorded by the Administrative Agent on the Lender Register only upon the acceptance by the Administrative Agent of a properly executed and delivered Assignment Agreement pursuant to this subsection subpart (c). The entries in the Lender Register shall be conclusive absent manifest error, and the Borrower, the Administrative Agent and each Lender shall treat each person whose name is recorded in the Lender Register as a Lender hereunder for all purposes of this Agreement notwithstanding any notice to the contrary. The Lender Register shall be available for the inspection by the Borrower and any Lender (solely with respect to its own interest in any Loan or Commitment) at any reasonable time and from time to time upon reasonable prior notice.
(v) [Reserved].
(vi) Nothing in this Section 11.06(c) shall prevent or prohibit (A) any Lender that is a bank, trust company or other financial institution from pledging its Notes or Loans to a Federal Reserve Bank or to any Person that extends credit to such Lender in support of borrowings made by such Lender from such Federal Reserve Bank or such other Person, or (B) any Lender that is a trust, limited liability company, partnership or other investment company from pledging its Notes or Loans to a trustee or agent for the benefit of holders of certificates or debt securities issued by it. No such pledge, or any assignment pursuant to or in lieu of an enforcement of such a pledge, shall relieve the transferor Lender from its obligations hereunder. .
(vi) In connection with any assignment of rights and obligations of any Defaulting Lender hereunder, no such assignment shall be effective unless and until, in addition to the other conditions thereto set forth herein, the parties to the assignment shall make such additional payments to the Administrative Agent in an aggregate amount sufficient, upon distribution thereof as appropriate (which may be outright payment, purchases by the assignee of participations or sub-participations, or other compensating actions, including funding, with the consent of the Borrower and the Administrative Agent, the applicable pro rata share of Loans previously requested but not funded by the Defaulting Lender, to each of which the applicable assignee and assignor hereby irrevocably consent), to (x) pay and satisfy in full all payment liabilities then owed by such Defaulting Lender to the Administrative Agent or any Agent, each LC Issuer, each Swing Line Lender and each other Lender hereunder (and interest accrued thereon) ), and (y) acquire (and fund as appropriate) its full pro rata share of all Loans and participations in Letters of Credit and Swing Loans in accordance with its Applicable Revolving Facility Percentage. Notwithstanding the foregoing, in the event that any assignment of rights and obligations of any Defaulting Lender hereunder shall become effective under applicable law without compliance with the provisions of this paragraph, then the assignee of such interest shall be deemed to be a Defaulting Lender for all purposes of this Agreement until such compliance occurs.
(vii) Notwithstanding anything contained herein, no Lender may assign, sell, negotiate or otherwise transfer its Loans, LC Participations, Swing Loan Participations and/or Commitments to the Borrower, the Borrower, any other Credit Party or any Affiliate of any of the foregoing.
Appears in 1 contract
Samples: Credit Agreement (TopBuild Corp)
Assignments by Lenders. (i) Any Lender may assign all, or if less than all, a fixed portion, of its Loans, LC Participations, Swing Loan Participations and/or Commitments and its rights and obligations hereunder to one or more Eligible Assignees, each of which shall become a party to this Agreement as a Lender by execution of an Assignment Agreement; provided, however, that:
(A) except in the case of (x) an assignment of the entire remaining amount of the assigning Lender’s Loans and/or Commitments or (y) an assignment to another Lender, an Affiliate of such Lender or an Approved Fund with respect to such Lender, the aggregate amount of the Commitment so assigned (which for this purpose includes the Loans outstanding thereunder) shall not be less than $2,500,000 (unless otherwise mutually agreed upon by the Borrower and the Administrative Agent)5,000,000;
(B) in the case of any assignment to an Eligible Assignee at the time of any such assignment the Lender Register shall be deemed modified to reflect the Commitments of such new Lender and of the existing Lenders;
(C) upon surrender of the old Notes, if any, upon request of the new Lender, new Notes will be issued, at the Borrower’s expense, to such new Lender and to the assigning Lender, to the extent needed to reflect the revised Commitments;
(D) unless waived by the Administrative Agent, except in the case of an assignment to another Lender, an Affiliate of such Lender or an Approved Fund with respect to such Lender, or any Lenders in connection with the initial syndication of the Credit Facilities on or after the Closing Date, the Administrative Agent shall receive at the time of each such assignment, from the assigning or assignee Lender, the payment of a non-refundable assignment fee of $3,500;
(E) the Administrative Agent’s consent shall be required for any assignment; and
(E) any such assignment shall require the prior written consent (such consent (except with respect to assignments to competitors of the Borrower) not to be unreasonably withheld or delayed) of:
(1F) the Borrower; provided that no consent of the Borrower ’s consent, which shall not be unreasonably withheld, shall be required for an any assignment unless (x) by a Lender to any Lender an Event of Default under Section 8.01(a) and (i) has occurred and is continuing or a U.S. based-Affiliate of any Lender, (y) by a Lender to an Approved Fund and (z) during a Specified Event of Default (unless such assignment is to a Disqualified Lender). Notwithstanding anything in this Section 11.06 to the contrary, if the Borrower has not given the Administrative Agent written notice of its objection to an assignment of Loans within fifteen (15) Business Days after written notice of such assignment, the Borrower shall be deemed to have consented to such assignment;
(2) the Administrative Agent; provided that no consent of the Administrative Agent shall be required for an assignment of a Loan to a Lender, an Affiliate of a Lender or an Approved Fund; and
(3) each LC Issuer and Swing Line Lender; provided that no consent of an LC Issuer or Swing Line Lender shall be required for an assignment of a Loan to a another Lender, an Affiliate of a Lender or an Approved Fund.
(ii) To the extent of any assignment pursuant to this subsection subpart (c), the assigning Lender shall be relieved of its obligations hereunder with respect to its assigned CommitmentsCommitments provided, that except to the extent otherwise expressly agreed by the affected parties, no assignment by a Defaulting Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender’s having been a Defaulting Lender.
(iii) At the time of each assignment pursuant to this subsection subpart (c) ), to a Person that is not already a Lender hereunder, the respective assignee Lender shall provide to the Borrower and the Administrative Agent the applicable Internal Revenue Service Forms (and any necessary additional documentation) described in Section 3.02(e3.03(g).
(iv) With respect to any Lender, the transfer of any Commitment of such Lender and the rights to the principal of, and interest on, any Loan made pursuant to such Commitment shall not be effective until such transfer is recorded on the Lender Register maintained by the Administrative Agent (on behalf of and acting solely for this purpose as a non-fiduciary agent of the applicable Borrower) with respect pursuant to ownership of such Commitment and Loans, including the name and address of the Lenders and the principal amount of the Loans (and stated interest thereonSection 2.08(b). Prior to such recordation, all amounts owing to the transferor with respect to such Commitment and Loans shall remain owing to the transferor. The registration of assignment or transfer of all or part of any Commitments and Loans shall be recorded by the Administrative Agent on the Lender Register only upon the acceptance by the Administrative Agent of a properly executed and delivered Assignment Agreement pursuant to this subsection subpart (c). The entries in the Lender Register shall be conclusive absent manifest error, and the Borrower, the Administrative Agent and each Lender shall treat each person whose name is recorded in the Lender Register as a Lender hereunder for all purposes of this Agreement notwithstanding any notice to the contrary. The Lender Register shall be available for the inspection by the Borrower and any Lender (solely with respect to its own interest in any Loan or Commitment) at any reasonable time and from time to time upon reasonable prior notice.
(v) [Reserved].
(vi) Nothing in this Section 11.06(c) shall prevent or prohibit (A) any Lender that is a bank, trust company or other financial institution from pledging its Notes or Loans to a Federal Reserve Bank or to any Person that extends credit to such Lender in support of borrowings made by such Lender from such Federal Reserve Bank or such other Person, or (B) any Lender that is a trust, limited liability company, partnership or other investment company from pledging its Notes or Loans to a trustee or agent for the benefit of holders of certificates or debt securities issued by it. No such pledge, or any assignment pursuant to or in lieu of an enforcement of such a pledge, shall relieve the transferor Lender from its obligations hereunder. .
(vi) In connection with any assignment of rights and obligations of any Defaulting Lender hereunder, no such assignment shall be effective unless and until, in addition to the other conditions thereto set forth herein, the parties to the assignment shall make such additional payments to the Administrative Agent in an aggregate amount sufficient, upon distribution thereof as appropriate (which may be outright payment, purchases by the assignee of participations or sub-participations, or other compensating actions, including funding, with the consent of the Borrower and the Administrative Agent, the applicable pro rata share of Loans previously requested but not funded by the Defaulting Lender, to each of which the applicable assignee and assignor hereby irrevocably consent), to (x) pay and satisfy in full all payment liabilities then owed by such Defaulting Lender to the Administrative Agent or any Agent, each LC Issuer, each Swing Line Lender and each other Lender hereunder (and interest accrued thereon) ), and (y) acquire (and fund as appropriate) its full pro rata share of all Loans and participations in Letters of Credit and Swing Loans in accordance with its Applicable Revolving Facility Percentage. Notwithstanding the foregoing, in the event that any assignment of rights and obligations of any Defaulting Lender hereunder shall become effective under applicable law without compliance with the provisions of this paragraph, then the assignee of such interest shall be deemed to be a Defaulting Lender for all purposes of this Agreement until such compliance occurs.
(vii) Notwithstanding anything contained herein, no Lender may assign, sell, negotiate or otherwise transfer its Loans, LC Participations, Swing Loan Participations and/or Commitments to the Borrower, the Borrower, any other Credit Party or any Affiliate of any of the foregoing.
Appears in 1 contract
Samples: Credit Agreement (TopBuild Corp)
Assignments by Lenders. (i) Any Lender may assign all, or if less than all, a fixed portion, of its Loans, LC Participations, Swing Loan Participations and/or Revolving Commitments and its rights and obligations hereunder to one or more Eligible Assignees, each of which shall become a party to this Agreement as a Lender by execution of an Assignment Agreement; provided, however, that:
(A) except in the case of (x) an assignment of the entire remaining amount of the assigning Lender’s Loans and/or Revolving Commitments or (y) an assignment to another Lender, an Affiliate of such Lender or an Approved Fund with respect to such Lender, the aggregate amount of the Revolving Commitment so assigned (which for this purpose includes the Loans outstanding thereunder) shall not be less than $2,500,000 (unless otherwise mutually agreed upon by the Borrower and the Administrative Agent)7,500,000;
(B) in the case of any assignment to an Eligible Assignee at the time of any such assignment the Lender Register shall be deemed modified to reflect the Revolving Commitments of such new Lender and of the existing Lenders;
(C) upon surrender of the old Notes, if any, upon request of the new Lender, new Notes will be issued, at the Borrower’s expense, to such new Lender and to the assigning Lender, to the extent needed to reflect the revised Revolving Commitments;; and
(D) unless waived by the Administrative Agent, except in the case of an assignment to another Lender, an Affiliate of such Lender or an Approved Fund with respect to such Lender, or any Lenders in connection with the initial syndication of the Credit Facilities on or after the Closing Date, the Administrative Agent shall receive at the time of each such assignment, from the assigning or assignee Lender, the payment of a non-refundable assignment fee of $3,500; and
(E) any such assignment shall require the prior written consent (such consent (except with respect to assignments to competitors of the Borrower) not to be unreasonably withheld or delayed) of:
(1) the Borrower; provided that no consent of the Borrower shall be required for an assignment (x) by a Lender to any Lender or a U.S. based-Affiliate of any Lender, (y) by a Lender to an Approved Fund and (z) during a Specified Event of Default (unless such assignment is to a Disqualified Lender). Notwithstanding anything in this Section 11.06 to the contrary, if the Borrower has not given the Administrative Agent written notice of its objection to an assignment of Loans within fifteen (15) Business Days after written notice of such assignment, the Borrower shall be deemed to have consented to such assignment;
(2) the Administrative Agent; provided that no consent of the Administrative Agent shall be required for an assignment of a Loan to a Lender, an Affiliate of a Lender or an Approved Fund; and
(3) each LC Issuer and Swing Line Lender; provided that no consent of an LC Issuer or Swing Line Lender shall be required for an assignment of a Loan to a Lender, an Affiliate of a Lender or an Approved Fund.
(ii) To the extent of any assignment pursuant to this subsection subpart (c), the assigning Lender shall be relieved of its obligations hereunder with respect to its assigned CommitmentsRevolving Commitments provided, that except to the extent otherwise expressly agreed by the affected parties, no assignment by a Defaulting Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender’s having been a Defaulting Lender.
(iii) At the time of each assignment pursuant to this subsection subpart (c) ), to a Person that is not already a Lender hereunder, the respective assignee Lender shall provide to the Borrower and the Administrative Agent the applicable Internal Revenue Service Forms (and any necessary additional documentation) described in Section 3.02(e3.03(g).
(iv) With respect to any Lender, the transfer of any Revolving Commitment of such Lender and the rights to the principal of, and interest on, any Loan made pursuant to such Revolving Commitment shall not be effective until such transfer is recorded on the Lender Register maintained by the Administrative Agent (on behalf of and acting solely for this purpose as a non-fiduciary agent of the applicable Borrower) with respect to ownership of such Revolving Commitment and Loans, including the name and address of the Lenders and the principal amount of the Loans (and stated interest thereon). Prior to such recordation, all amounts owing to the transferor with respect to such Revolving Commitment and Loans shall remain owing to the transferor. The registration of assignment or transfer of all or part of any Revolving Commitments and Loans shall be recorded by the Administrative Agent on the Lender Register only upon the acceptance by the Administrative Agent of a properly executed and delivered Assignment Agreement pursuant to this subsection subpart (c). The entries in the Lender Register shall be conclusive absent manifest error, and the Borrower, the Administrative Agent and each Lender the Lenders shall treat each person Person whose name is recorded in the Lender Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement notwithstanding any notice to the contraryAgreement. The Lender Register shall be available for the inspection by the Borrower and any Lender (solely with respect to its own interest in any Loan or Commitment) at any reasonable time and from time to time upon reasonable prior notice.
(v) [Reserved].
(vi) Nothing in this Section 11.06(c) shall prevent or prohibit (A) any Lender that is a bank, trust company or other financial institution from pledging its Notes or Loans to a Federal Reserve Bank or to any Person that extends credit to such Lender in support of borrowings made by such Lender from such Federal Reserve Bank or such other Person, or (B) any Lender that is a trust, limited liability company, partnership or other investment company from pledging its Notes or Loans to a trustee or agent for the benefit of holders of certificates or debt securities issued by it. No such pledge, or any assignment pursuant to or in lieu of an enforcement of such a pledge, shall relieve the transferor Lender from its obligations hereunder. .
(vi) In connection with any assignment of rights and obligations of any Defaulting Lender hereunder, no such assignment shall be effective unless and until, in addition to the other conditions thereto set forth herein, the parties to the assignment shall make such additional payments to the Administrative Agent in an aggregate amount sufficient, upon distribution thereof as appropriate (which may be outright payment, purchases by the assignee of participations or sub-participationssubparticipations, or other compensating actions, including funding, with the consent of the Borrower and the Administrative Agent, the applicable pro rata share of Loans previously requested but not funded by the Defaulting Lender, to each of which the applicable assignee and assignor hereby irrevocably consent), to (x) pay and satisfy in full all payment liabilities then owed by such Defaulting Lender to the Administrative Agent or any Agent, the LC Issuer and each other Lender hereunder (and interest accrued thereon) ), and (y) acquire (and fund as appropriate) its full pro rata share of all Loans and participations in Letters of Credit and Swing Loans in accordance with its Applicable Revolving Facility Percentage. 103 Notwithstanding the foregoing, in the event that any assignment of rights and obligations of any Defaulting Lender hereunder shall become effective under applicable law without compliance with the provisions of this paragraph, then the assignee of such interest shall be deemed to be a Defaulting Lender for all purposes of this Agreement until such compliance occurs. Notwithstanding anything contained herein, no Lender may assign, sell, negotiate or otherwise transfer its Loans, LC Participations, and/or Revolving Commitments to any Credit Party or any Subsidiary or Affiliate thereof.
Appears in 1 contract
Assignments by Lenders. (i) Any Lender may assign all, or if less than all, a fixed portion, of its Loans, LC Participations, Swing Loan Participations and/or Commitments and its rights and obligations hereunder to one or more Eligible Assignees, each of which shall become a party to this Agreement as a Lender by execution of an Assignment Agreement; provided, however, that:
(A) except in the case of (x) an assignment of the entire remaining amount of the assigning Lender’s Loans and/or Commitments or (y) an assignment to another Lender, an Affiliate of such Lender or an Approved Fund with respect to such Lender, the aggregate amount of the Commitment so assigned (which for this purpose includes the Loans outstanding thereunder) shall not be less than $2,500,000 (unless otherwise mutually agreed upon by 1.0 million, in the Borrower case of Term Loans or $2.0 million, in the case of Revolving Loans and the Administrative Agent)Revolving Commitments;
(B) in the case of any assignment to an Eligible Assignee at the time of any such assignment the Lender Register shall be deemed modified to reflect the Commitments of such new Lender and of the existing Lenders;
(C) upon surrender of the old Notes, if any, upon request of the new Lender, new Notes will be issued, at the Borrower’s expense, to such new Lender and to the assigning Lender, to the extent needed to reflect the revised Commitments;
(D) unless waived by the Administrative Agent, except in the case of an assignment to another Lender, an Affiliate of such Lender or an Approved Fund with respect to such Lender, or any Lenders in connection with the initial syndication of the Credit Facilities on or after the Closing Date, the Administrative Agent shall receive at the time of each such assignment, from the assigning or assignee Lender, the payment of a non-refundable assignment fee of $3,500; and
(E) any such assignment shall require the prior written consent (such consent (except with respect to assignments to competitors of the Borrower) not to be unreasonably withheld or delayed) of:
(1) the Borrower; provided that no consent of the Borrower shall be required for an assignment (x) by a Lender to any Lender or a U.S. based-Affiliate of any Lender, (y) by a Lender to an Approved Fund and (z) during a Specified Event of Default (unless such assignment is to a Disqualified Lender). Notwithstanding anything in this Section 11.06 to the contrary, if the Borrower has not given the Administrative Agent written notice of its objection to an assignment of Loans within fifteen (15) Business Days after written notice of such assignment, the Borrower shall will be deemed to have consented given consent to such assignment;
(2) the Administrative Agent; provided that no consent of the Administrative Agent shall be required for an assignment Assignment if Borrower has not responded within five Business Days of a Loan to a Lender, an Affiliate of a Lender or an Approved Fund; and
(3) each LC Issuer and Swing Line Lender; provided that no consent of an LC Issuer or Swing Line Lender shall be required request for an assignment of a Loan to a Lender, an Affiliate of a Lender or an Approved Fundconsent.
(ii) To the extent of any assignment pursuant to this subsection subpart (c), the assigning Lender shall be relieved of its obligations hereunder with respect to its assigned Commitments.
(iii) At the time of each assignment pursuant to this subsection subpart (c) to a Person that is not already a Lender hereunder, the respective assignee Lender shall provide to the Borrower and the Administrative Agent the applicable Internal Revenue Service Forms (and any necessary additional documentation) described in Section 3.02(e3.02(g).
(iv) With respect to any Lender, the transfer of any Commitment of such Lender and the rights to the principal of, and interest on, any Loan made pursuant to such Commitment shall not be effective until such transfer is recorded on the Lender Register maintained by the Administrative Agent (on behalf of and acting solely for this purpose as a non-fiduciary agent of the applicable Borrower) with respect to ownership of such Commitment and Loans, including the name and address of the Lenders and the principal amount of the Loans (and stated interest thereon). Prior to such recordation, all amounts owing to the transferor with respect to such Commitment and Loans shall remain owing to the transferor. The registration of assignment or transfer of all or part of any Commitments and Loans shall be recorded by the Administrative Agent on the Lender Register only upon the acceptance by the Administrative Agent of a properly executed and delivered Assignment Agreement pursuant to this subsection subpart (c). The entries in the Lender Register shall be conclusive absent manifest error, and the Borrower, the Administrative Agent and each Lender shall treat each person whose name is recorded in the Lender Register as a Lender hereunder for all purposes of this Agreement notwithstanding any notice to the contrary. The Lender Register shall be available for the inspection by the Borrower and any Lender (solely with respect to its own interest in any Loan or Commitment) at any reasonable time and from time to time upon reasonable prior notice.
(v) [Reserved].
(vi) Nothing in this Section 11.06(c) shall prevent or prohibit (A) any Lender that is a bank, trust company or other financial institution from pledging its Notes or Loans to a Federal Reserve Bank or to any Person that extends credit to such Lender in support of borrowings made by such Lender from such Federal Reserve Bank or such other Person, or (B) any Lender that is a trust, limited liability company, partnership or other investment company from pledging its Notes or Loans to a trustee or agent for the benefit of holders of certificates or debt securities issued by it. No such pledge, or any assignment pursuant to or in lieu of an enforcement of such a pledge, shall relieve the transferor Lender from its obligations hereunder. In connection with any assignment of rights and obligations of any Defaulting Lender hereunder, no such assignment shall be effective unless and until, in addition to the other conditions thereto set forth herein, the parties to the assignment shall make such additional payments to the Administrative Agent in an aggregate amount sufficient, upon distribution thereof as appropriate (which may be outright payment, purchases by the assignee of participations or sub-participations, or other compensating actions, including funding, with the consent of the Borrower and the Administrative Agent, the applicable pro rata share of Loans previously requested but not funded by the Defaulting Lender, to each of which the applicable assignee and assignor hereby irrevocably consent), to (x) pay and satisfy in full all payment liabilities then owed by such Defaulting Lender to the Administrative Agent or any Lender hereunder (and interest accrued thereon) and (y) acquire (and fund as appropriate) its full pro rata share of all Loans and participations in Letters of Credit and Swing Loans in accordance with its Applicable Percentage. Notwithstanding the foregoing, in the event that any assignment of rights and obligations of any Defaulting Lender hereunder shall become effective under applicable law without compliance with the provisions of this paragraph, then the assignee of such interest shall be deemed to be a Defaulting Lender for all purposes of this Agreement until such compliance occurs.
Appears in 1 contract
Assignments by Lenders. (i) Any Lender may assign all, or if less than all, a fixed portion, any portion of its Loans, LC Participations, Swing Loan Participations and/or Commitments and its rights and obligations hereunder to one or more Eligible Assignees, each of which shall become a party to this Agreement as a Lender by execution of an Assignment Agreement; provided, however, that:
(A) except in the case of (x) of an assignment of the entire remaining amount of the assigning Lender’s Loans and/or Commitments or (y) an assignment to another Lender, an Affiliate of such Lender or an Approved Fund with respect to such of any Lender, the aggregate amount of the Commitment so assigned (which for this purpose includes the Loans outstanding thereunder) shall not be less than (1) $2,500,000 5,000,000, in the case of any assignment relating to a Revolving Commitment, or (unless otherwise mutually agreed upon by 2) $1,000,000, in the Borrower and the Administrative Agent)case of any assignment relating to a Term Commitment;
(B) in the case of any assignment to an Eligible Assignee at the effective time of any such assignment assignment, as determined by the Administrative Agent in accordance with subsection (iv) below, the Lender Register shall be deemed modified to reflect the Commitments of such new Lender and of the existing Lenders;
(C) upon surrender of the old Notes, if any, upon request of the new Lender, new Notes will be issued, at the Borrower’s expense, to such new Lender and to the assigning Lender, to the extent needed to reflect the revised Commitments;; and
(D) unless waived by the Administrative Agent, except in the case of an assignment to another Lender, an Affiliate of such Lender or an Approved Fund with respect to such Lender, or any Lenders in connection with the initial syndication of the Credit Facilities on or after the Closing Date, the Administrative Agent shall receive at the time of each such assignment, from the assigning or assignee Lender, the payment of a non-refundable assignment fee of $3,500; and
3,500 (E) any such assignment shall require the prior written consent (such consent (except with respect to treating multiple contemporaneous assignments to competitors or from Approved Funds of the Borrower) not to be unreasonably withheld or delayed) of:
(1) the Borrower; provided that no consent of the Borrower shall be required a single Lender as one assignment for an assignment (x) by a Lender to any Lender or a U.S. based-Affiliate of any Lender, (y) by a Lender to an Approved Fund and (z) during a Specified Event of Default (unless such assignment is to a Disqualified Lender). Notwithstanding anything in this Section 11.06 to the contrary, if the Borrower has not given the Administrative Agent written notice of its objection to an assignment of Loans within fifteen (15) Business Days after written notice purposes of such assignment, the Borrower shall be deemed to have consented to such assignment;
(2) the Administrative Agent; provided that no consent of the Administrative Agent shall be required for an assignment of a Loan to a Lender, an Affiliate of a Lender or an Approved Fund; and
(3) each LC Issuer and Swing Line Lender; provided that no consent of an LC Issuer or Swing Line Lender shall be required for an assignment of a Loan to a Lender, an Affiliate of a Lender or an Approved Fundrequirement).
(ii) To the extent of any assignment pursuant to this subsection subpart (c), the assigning Lender shall be relieved of its obligations hereunder with respect to its assigned Commitments.
(iii) At the time of each assignment pursuant to this subsection subpart (c) to a Person that is not already a Lender hereunder, the respective assignee Lender shall provide to the Borrower and the Administrative Agent the applicable Internal Revenue Service Forms (and any necessary additional documentation) described in Section 3.02(e3.03(b).
(iv) With respect to any Lender, the transfer of any Commitment of such Lender and the rights to the principal of, and interest on, any Loan made pursuant to such Commitment shall not be effective until such transfer is recorded on the Lender Register maintained by the Administrative Agent (on behalf of and acting solely for this purpose as a non-fiduciary agent of the applicable Borrower) with respect to ownership of such Commitment and Loans, including the name Loans and address of the Lenders and the principal amount of the Loans (and stated interest thereon). Prior prior to such recordation, recordation all amounts owing to the transferor with respect to such Commitment and Loans shall remain owing to the transferor. The registration of assignment or transfer of all or part of any Commitments and Loans shall be recorded by the Administrative Agent on the Lender Register only upon the acceptance by the Administrative Agent of a properly executed and delivered Assignment Agreement pursuant to this subsection subpart (c). The entries in the Lender Register shall be conclusive absent manifest error, and the Borrower, the Administrative Agent and each Lender shall treat each person whose name is recorded in the Lender Register as a Lender hereunder for all purposes of this Agreement notwithstanding any notice to the contrary. The Lender Register shall be available for the inspection by the Borrower and any Lender (solely with respect to its own interest in any Loan or Commitment) at any reasonable time and from time to time upon reasonable prior notice.
(v) [Reserved].
(vi) Nothing in this Section 11.06(c) shall prevent or prohibit (A) any Lender that is a bank, trust company or other financial institution from pledging its Notes or Loans to a Federal Reserve Bank or to any Person that extends credit to such Lender in support of borrowings made by such Lender from such Federal Reserve Bank or such other PersonBank, or (B) any Lender that is a trust, limited liability company, partnership partnership, fund or other investment company from pledging its Notes or Loans to a trustee or agent for the benefit of holders of certificates or debt securities issued by it. No such pledge, or any assignment pursuant to or in lieu of an enforcement of such a pledge, shall relieve the transferor Lender from its obligations hereunder. In connection with any assignment of rights and obligations of any Defaulting Lender hereunder, no such assignment shall be effective unless and until, in addition to the other conditions thereto set forth herein, the parties to the assignment shall make such additional payments to the Administrative Agent in an aggregate amount sufficient, upon distribution thereof as appropriate (which may be outright payment, purchases by the assignee of participations or sub-participations, or other compensating actions, including funding, with the consent of the Borrower and the Administrative Agent, the applicable pro rata share of Loans previously requested but not funded by the Defaulting Lender, to each of which the applicable assignee and assignor hereby irrevocably consent), to (x) pay and satisfy in full all payment liabilities then owed by such Defaulting Lender to the Administrative Agent or any Lender hereunder (and interest accrued thereon) and (y) acquire (and fund as appropriate) its full pro rata share of all Loans and participations in Letters of Credit and Swing Loans in accordance with its Applicable Percentage. Notwithstanding the foregoing, in the event that any assignment of rights and obligations of any Defaulting Lender hereunder shall become effective under applicable law without compliance with the provisions of this paragraph, then the assignee of such interest shall be deemed to be a Defaulting Lender for all purposes of this Agreement until such compliance occurs.
Appears in 1 contract
Assignments by Lenders. (i) Any Lender may assign all, or if less than all, a fixed portion, of its Loans, LC Participations, Swing Loan Participations and/or Commitments and its rights and obligations hereunder to one or more Eligible Assignees, each of which shall become a party to this Agreement as a Lender by execution of an Assignment Agreement; provided, however, that:
(A) except in the case of (x) an assignment of the entire remaining amount of the assigning Lender’s Loans and/or Commitments or (y) an assignment to another Lender, an Affiliate of such Lender or an Approved Fund with respect to such Lender, the aggregate amount of the Commitment so assigned (which for this purpose includes the Loans outstanding thereunder) shall not be less than $2,500,000 (unless otherwise mutually agreed upon by the Borrower and the Administrative Agent)1,000,000;
(B) in the case of any assignment to an Eligible Assignee at the time of any such assignment the Lender Register shall be deemed modified to reflect the Commitments of such new Lender and of the existing Lenders;
(C) upon surrender of the old Notes, if any, upon request of the new Lender, new Notes will be issued, at the Borrower’s expense, to such new Lender and to the assigning Lender, to the extent needed to reflect the revised Commitments;; and
(D) unless waived by the Administrative Agent, except in the case of an assignment to another Lender, an Affiliate of such Lender or an Approved Fund with respect to such Lender, or any Lenders in connection with the initial syndication of the Credit Facilities on or after the Closing Date, the Administrative Agent shall receive at the time of each such assignment, from the assigning or assignee Lender, the payment of a non-refundable assignment fee of $3,500; and
(E) any such assignment shall require the prior written consent (such consent (except with respect to assignments to competitors of the Borrower) not to be unreasonably withheld or delayed) of:
(1) the Borrower; provided that no consent of the Borrower shall be required for an assignment (x) by a Lender to any Lender or a U.S. based-Affiliate of any Lender, (y) by a Lender to an Approved Fund and (z) during a Specified Event of Default (unless such assignment is to a Disqualified Lender). Notwithstanding anything in this Section 11.06 to the contrary, if the Borrower has not given the Administrative Agent written notice of its objection to an assignment of Loans within fifteen (15) Business Days after written notice of such assignment, the Borrower shall be deemed to have consented to such assignment;
(2) the Administrative Agent; provided that no consent of the Administrative Agent shall be required for an assignment of a Loan to a Lender, an Affiliate of a Lender or an Approved Fund; and
(3) each LC Issuer and Swing Line Lender; provided that no consent of an LC Issuer or Swing Line Lender shall be required for an assignment of a Loan to a Lender, an Affiliate of a Lender or an Approved Fund.
(ii) To the extent of any assignment pursuant to this subsection subpart (c), the assigning Lender shall be relieved of its obligations hereunder with respect to its assigned CommitmentsCommitments provided, that except to the extent otherwise expressly agreed by the affected parties, no assignment by a Defaulting Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender’s having been a Defaulting Lender.
(iii) At the time of each assignment pursuant to this subsection subpart (c) ), to a Person that is not already a Lender hereunderhereunder and that is not a U.S. Person for Federal income tax purposes, the respective assignee Lender shall provide to the Borrower and the Administrative Agent the applicable Internal Revenue Service Forms (and any necessary additional documentation) described in Section 3.02(e3.03(g).
(iv) With respect to any Lender, the transfer of any Commitment of such Lender and the rights to the principal of, and interest on, any Loan made pursuant to such Commitment shall not be effective until such transfer is recorded on the Lender Register maintained by the Administrative Agent (on behalf of and acting solely for this purpose as a non-fiduciary agent of the applicable Borrower) with respect to ownership of such Commitment and Loans, including the name and address of the Lenders and the principal amount of the Loans (and stated interest thereon). Prior to such recordation, all amounts owing to the transferor with respect to such Commitment and Loans shall remain owing to the transferor. The registration of assignment or transfer of all or part of any Commitments and Loans shall be recorded by the Administrative Agent on the Lender Register only upon the acceptance by the Administrative Agent of a properly executed and delivered Assignment Agreement pursuant to this subsection subpart (c). The entries in the Lender Register shall be conclusive absent manifest error, and the Borrower, the Administrative Agent and each Lender shall treat each person whose name is recorded in the Lender Register as a Lender hereunder for all purposes of this Agreement notwithstanding any notice to the contrary. The Lender Register shall be available for the inspection by the Borrower and any Lender (solely with respect to its own interest in any Loan or Commitment) at any reasonable time and from time to time upon reasonable prior notice.
(v) [Reserved].
(vi) Nothing in this Section 11.06(c) shall prevent or prohibit (A) any Lender that is a bank, trust company or other financial institution from pledging its Notes or Loans to a Federal Reserve Bank or to any Person that extends credit to such Lender in support of borrowings made by such Lender from such Federal Reserve Bank or such other Person, or (B) any Lender that is a trust, limited liability company, partnership or other investment company from pledging its Notes or Loans to a trustee or agent for the benefit of holders of certificates or debt securities issued by it. No such pledge, or any assignment pursuant to or in lieu of an enforcement of such a pledge, shall relieve the transferor Lender from its obligations hereunder. .
(vi) In connection with any assignment of rights and obligations of any Defaulting Lender hereunder, no such assignment shall be effective unless and until, in addition to the other conditions thereto set forth herein, the parties to the assignment shall make such additional payments to the Administrative Agent in an aggregate amount sufficient, upon distribution thereof as appropriate (which may be outright payment, purchases by the assignee of participations or sub-participationssubparticipations, or other compensating actions, including funding, with the consent of the Borrower and the Administrative Agent, the applicable pro rata share of Loans previously requested but not funded by the Defaulting Lender, to each of which the applicable assignee and assignor hereby irrevocably consent), to (x) pay and satisfy in full all payment liabilities then owed by such Defaulting Lender to the Administrative Agent or any Agent, each LC Issuer, each Swing Line Lender and each other Lender hereunder (and interest accrued thereon) ), and (y) acquire (and fund as appropriate) its full pro rata share of all Loans and participations in Letters of Credit and Swing Loans in accordance with its Applicable Revolving Facility Percentage. Notwithstanding the foregoing, in the event that any assignment of rights and obligations of any Defaulting Lender hereunder shall become effective under applicable law without compliance with the provisions of this paragraph, then the assignee of such interest shall be deemed to be a Defaulting Lender for all purposes of this Agreement until such compliance occurs.
(vii) Notwithstanding anything contained herein, no Lender may assign, sell, negotiate or otherwise transfer its Loans, LC Participations, Swing Line Participations and/or Commitments to any Credit Party or any Affiliate of any of the foregoing.
Appears in 1 contract
Assignments by Lenders. (i) Any Lender may assign all, to one or if less than all, more assignees all or a fixed portion, portion of its Loans, LC Participations, Swing Loan Participations and/or Commitments and its rights and obligations hereunder to one or more Eligible Assignees, each of which shall become a party to under this Agreement as (including all or a Lender by execution portion of an Assignment Agreementits Commitment and the Loans at the time owing to it); provided, however, provided that:
(Ai) except in the case of an assignment to a Lender or an Affiliate (xor Approved Fund) of a Lender, the Administrative Agent (and, in the case of an assignment of all or a portion of a Commitment or any Lender's obligations in respect of its LC Exposure, the Issuing Lender) and the Borrower must give their prior written consent to such assignment (which consent in each case shall not be unreasonably withheld);
(ii) except in the case of an assignment to a Lender or an Affiliate (or Approved Fund) of a Lender or an assignment of the entire remaining amount of the assigning Lender’s Loans and/or Commitments or 's Commitment, the amount of the Commitment of the assigning Lender subject to each such assignment (y) an assignment to another Lender, an Affiliate determined as of such Lender or an Approved Fund the date the Assignment and Acceptance with respect to such Lender, assignment is delivered to the aggregate amount of the Commitment so assigned (which for this purpose includes the Loans outstanding thereunderAdministrative Agent) shall not be less than $2,500,000 (5,000,000 unless otherwise mutually agreed upon by the Borrower and the Administrative Agent);
(B) in the case each of any assignment to an Eligible Assignee at the time of any such assignment the Lender Register shall be deemed modified to reflect the Commitments of such new Lender and of the existing Lenders;
(C) upon surrender of the old Notes, if any, upon request of the new Lender, new Notes will be issued, at the Borrower’s expense, to such new Lender and to the assigning Lender, to the extent needed to reflect the revised Commitments;
(D) unless waived by the Administrative Agent, except in the case of an assignment to another Lender, an Affiliate of such Lender or an Approved Fund with respect to such Lender, or any Lenders in connection with the initial syndication of the Credit Facilities on or after the Closing Date, the Administrative Agent shall receive at the time of each such assignment, from the assigning or assignee Lender, the payment of a non-refundable assignment fee of $3,500; and
(E) any such assignment shall require the prior written consent (such consent (except with respect to assignments to competitors of the Borrower) not to be unreasonably withheld or delayed) of:
(1) the Borrower; provided that no consent of the Borrower shall be required for an assignment (x) by a Lender to any Lender or a U.S. based-Affiliate of any Lender, (y) by a Lender to an Approved Fund and (z) during a Specified Event of Default (unless such assignment is to a Disqualified Lender). Notwithstanding anything in this Section 11.06 to the contrary, if the Borrower has not given the Administrative Agent written notice of its objection to an assignment of Loans within fifteen (15) Business Days after written notice of such assignment, the Borrower shall be deemed to have consented to such assignment;
(2) the Administrative Agent; provided that no consent of the Administrative Agent shall be required for an assignment of a Loan to a Lender, an Affiliate of a Lender or an Approved Fund; and
(3) each LC Issuer and Swing Line Lender; provided that no consent of an LC Issuer or Swing Line Lender shall be required for an assignment of a Loan to a Lender, an Affiliate of a Lender or an Approved Fund.
(ii) To the extent of any assignment pursuant to this subsection (c), the assigning Lender shall be relieved of its obligations hereunder with respect to its assigned Commitments.
(iii) At the time of each assignment pursuant to this subsection (c) to a Person that is not already a Lender hereunder, the respective assignee Lender shall provide to the Borrower and the Administrative Agent otherwise consent,
(iii) each partial assignment of any Class of Commitments or Loans shall be made as an assignment of a proportionate part of all the applicable Internal Revenue Service Forms (assigning Lender's rights and any necessary additional documentation) described in Section 3.02(e).obligations of such Class of Commitments or Loans under this Agreement,
(iv) With respect the parties to any Lender, the transfer of any Commitment of such Lender each assignment shall execute and the rights deliver to the principal of, and interest on, any Loan made pursuant to such Commitment shall not be effective until such transfer is recorded on the Lender Register maintained by the Administrative Agent (on behalf an Assignment and Acceptance, together with a processing and recordation fee of and acting solely for this purpose as a non-fiduciary agent of the applicable Borrower) with respect to ownership of such Commitment and Loans$3,500, including the name and address of the Lenders and the principal amount of the Loans (and stated interest thereon). Prior to such recordation, all amounts owing to the transferor with respect to such Commitment and Loans shall remain owing to the transferor. The registration of assignment or transfer of all or part of any Commitments and Loans shall be recorded by the Administrative Agent on the Lender Register only upon the acceptance by the Administrative Agent of a properly executed and delivered Assignment Agreement pursuant to this subsection (c). The entries in the Lender Register shall be conclusive absent manifest error, and the Borrower, the Administrative Agent and each Lender shall treat each person whose name is recorded in the Lender Register as a Lender hereunder for all purposes of this Agreement notwithstanding any notice to the contrary. The Lender Register shall be available for the inspection by the Borrower and any Lender (solely with respect to its own interest in any Loan or Commitment) at any reasonable time and from time to time upon reasonable prior notice.and
(v) [Reserved].
(vi) Nothing in this Section 11.06(c) the assignee, if it shall prevent or prohibit (A) any Lender that is not be a bank, trust company or other financial institution from pledging its Notes or Loans to a Federal Reserve Bank or to any Person that extends credit to such Lender in support of borrowings made by such Lender from such Federal Reserve Bank or such other Person, or (B) any Lender that is a trust, limited liability company, partnership or other investment company from pledging its Notes or Loans to a trustee or agent for the benefit of holders of certificates or debt securities issued by it. No such pledge, or any assignment pursuant to or in lieu of an enforcement of such a pledgeLender, shall relieve the transferor Lender from its obligations hereunder. In connection with any assignment of rights and obligations of any Defaulting Lender hereunder, no such assignment shall be effective unless and until, in addition to the other conditions thereto set forth herein, the parties to the assignment shall make such additional payments deliver to the Administrative Agent in an aggregate amount sufficient, upon distribution thereof as appropriate (which may be outright payment, purchases by the assignee of participations or sub-participations, or other compensating actions, including funding, with the Administrative Questionnaire; provided further that any consent of the Borrower and the Administrative Agent, the applicable pro rata share otherwise required under this paragraph shall not be required if an Event of Loans previously requested but not funded by the Defaulting Lender, to each of which the applicable assignee and assignor hereby irrevocably consentDefault under clause (a), to (xg) pay or (h) of Article VIII has occurred and satisfy in full all payment liabilities then owed by such Defaulting Lender to the Administrative Agent or any Lender hereunder (and interest accrued thereon) and (y) acquire (and fund as appropriate) its full pro rata share of all Loans and participations in Letters of Credit and Swing Loans in accordance with its Applicable Percentage. Notwithstanding the foregoing, in the event that any assignment of rights and obligations of any Defaulting Lender hereunder shall become effective under applicable law without compliance with the provisions of this paragraph, then the assignee of such interest shall be deemed to be a Defaulting Lender for all purposes of this Agreement until such compliance occursis continuing.
Appears in 1 contract
Assignments by Lenders. (i) Any Lender may assign all, or if less than all, a fixed portion, of its Loans, LC Participations, Swing Loan Participations and/or Commitments and its rights and obligations hereunder to one or more Eligible Assignees, each of which shall become a party to this Agreement as a Lender by execution of an Assignment Agreement; provided, however, that:
(A) except in the case of (x) an assignment of the entire remaining amount of the assigning Lender’s Loans and/or Commitments or (y) an assignment to another Lender, an Affiliate of such Lender or an Approved Fund with respect to such Lender, the aggregate amount of the Commitment so assigned (which for this purpose includes the Loans outstanding thereunder) shall not be less than $2,500,000 (unless otherwise mutually agreed upon by the Borrower and the Administrative Agent)1,000,000;
(B) in the case of any assignment to an Eligible Assignee at the time of any such assignment the Lender Register shall be deemed modified to reflect the Commitments of such new Lender and of the existing Lenders;
(C) upon surrender of the old Notes, if any, upon request of the new Lender, new Notes will be issued, at the Borrower’s expense, to such new Lender and to the assigning Lender, to the extent needed to reflect the revised Commitments;; and
(D) unless waived by the Administrative Agent, except in the case of an assignment to another Lender, an Affiliate of such Lender or an Approved Fund with respect to such Lender, or any Lenders in connection with the initial syndication of the Credit Facilities on or after the Closing Date, the Administrative Agent shall receive at the time of each such assignment, from the assigning or assignee Lender, the payment of a non-refundable assignment fee of $3,500; and
(E) any such assignment shall require the prior written consent (such consent (except with respect to assignments to competitors of the Borrower) not to be unreasonably withheld or delayed) of:
(1) the Borrower; provided that no consent of the Borrower shall be required for an assignment (x) by a Lender to any Lender or a U.S. based-Affiliate of any Lender, (y) by a Lender to an Approved Fund and (z) during a Specified Event of Default (unless such assignment is to a Disqualified Lender). Notwithstanding anything in this Section 11.06 to the contrary, if the Borrower has not given the Administrative Agent written notice of its objection to an assignment of Loans within fifteen (15) Business Days after written notice of such assignment, the Borrower shall be deemed to have consented to such assignment;
(2) the Administrative Agent; provided that no consent of the Administrative Agent shall be required for an assignment of a Loan to a Lender, an Affiliate of a Lender or an Approved Fund; and
(3) each LC Issuer and Swing Line Lender; provided that no consent of an LC Issuer or Swing Line Lender shall be required for an assignment of a Loan to a Lender, an Affiliate of a Lender or an Approved Fund.
(ii) To the extent of any assignment pursuant to this subsection subpart (c), the assigning Lender shall be relieved of its obligations hereunder with respect to its assigned CommitmentsCommitments provided, that except to the extent otherwise expressly agreed by the affected parties, no assignment by a Defaulting Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender’s having been a Defaulting Lender.
(iii) At the time of each assignment pursuant to this subsection subpart (c) ), to a Person that is not already a Lender hereunderhereunder and that is not a U.S. Person for Federal income tax purposes, the respective assignee Lender shall provide to the Borrower and the Administrative Agent the applicable Internal Revenue Service Forms (and any necessary additional documentation) described in Section 3.02(e3.03(g).
(iv) With respect to any Lender, the transfer of any Commitment of such Lender and the rights to the principal of, and interest on, any Loan made pursuant to such Commitment shall not be effective until such transfer is recorded on the Lender Register maintained by the Administrative Agent (on behalf of and acting solely for this purpose as a non-fiduciary agent of the applicable Borrower) with respect to ownership of such Commitment and Loans, including the name and address of the Lenders and the principal amount of the Loans (and stated interest thereon). Prior to such recordation, all amounts owing to the transferor with respect to such Commitment and Loans shall remain owing to the transferor. The registration of assignment or transfer of all or part of any Commitments and Loans shall be recorded by the Administrative Agent on the Lender Register only upon the acceptance by the Administrative Agent of a properly executed and delivered Assignment Agreement pursuant to this subsection subpart (c). The entries in the Lender Register shall be conclusive absent manifest error, and the Borrower, the Administrative Agent and each Lender shall treat each person whose name is recorded in the Lender Register as a Lender hereunder for all purposes of this Agreement notwithstanding any notice to the contrary. The Lender Register shall be available for the inspection by the Borrower and any Lender (solely with respect to its own interest in any Loan or Commitment) at any reasonable time and from time to time upon reasonable prior notice.
(v) [Reserved].
(vi) Nothing in this Section 11.06(c) shall prevent or prohibit (A) any Lender that is a bank, trust company or other financial institution from pledging its Notes or Loans to a Federal Reserve Bank or to any Person that extends credit to such Lender in support of borrowings made by such Lender from such Federal Reserve Bank or such other Person, or (B) any Lender that is a trust, limited liability company, partnership or other investment company from pledging its Notes or Loans to a trustee or agent for the benefit of holders of certificates or debt securities issued by it. No such pledge, or any assignment pursuant to or in lieu of an enforcement of such a pledge, shall relieve the transferor Lender from its obligations hereunder. .
(vi) In connection with any assignment of rights and obligations of any Defaulting Lender hereunder, no such assignment shall be effective unless and until, in addition to the other conditions thereto set forth herein, the parties to the assignment shall make such additional payments to the Administrative Agent in an aggregate amount sufficient, upon distribution thereof as appropriate (which may be outright payment, purchases by the assignee of participations or sub-participationssubparticipations, or other compensating actions, including funding, with the consent of the Borrower and the Administrative Agent, the applicable pro rata share of Loans previously requested but not funded by the Defaulting Lender, to each of which the applicable assignee and assignor hereby irrevocably consent), to (x) pay and satisfy in full all payment liabilities then owed by such Defaulting Lender to the Administrative Agent or any Agent, each LC Issuer, each Swing Line Lender and each other Lender hereunder (and interest accrued thereon) ), and (y) acquire (and fund as appropriate) its full pro rata share of all Loans and participations in Letters of Credit and Swing Loans in accordance with its Applicable Revolving Facility Percentage. Notwithstanding the foregoing, in the event that any assignment of rights and obligations of any Defaulting Lender hereunder shall become effective under applicable law without compliance with the provisions of this paragraph, then the assignee of such interest shall be deemed to be a Defaulting Lender for all purposes of this Agreement until such compliance occurs.
Appears in 1 contract
Assignments by Lenders. (i) Any Lender may assign all, or if less than all, a fixed portion, of its Loans, LC Participations, Swing Loan Participations and/or Commitments and its rights and obligations hereunder to one or more Eligible Assignees, each of which shall become a party to this Agreement as a Lender by execution of an Assignment Agreement; provided, however, that:
(A) except in the case of (x) an assignment of the entire remaining amount of the assigning Lender’s Loans and/or Commitments or (y) an assignment to another Lender, an Affiliate of such Lender or an Approved Fund with respect to such Lender, the aggregate amount of (i) the Revolving Commitment so assigned (which for this purpose includes the Loans outstanding thereunder) shall not be less than $2,500,000 5,000,000; and (unless otherwise mutually agreed upon by ii) the Borrower and Term Commitment so assigned (which for this purpose includes the Administrative Agent)Loans outstanding thereunder) shall not be less than $1,000,000;
(B) in the case of any assignment to an Eligible Assignee at the time of any such assignment the Lender Register shall be deemed modified to reflect the Commitments of such new Lender and of the existing Lenders;
(C) upon surrender of the old Notes, if any, upon request of the new Lender, new Notes will be issued, at the Borrower’s expense, to such new Lender and to the assigning Lender, to the extent needed to reflect the revised Commitments;
(D) the consent of the Borrower shall be required unless (i) an Event of Default has occurred and is continuing or (ii) the assignment is to a Lender, an affiliate of a Lender or an Approved Fund; provided, that the Borrower shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to the Administrative Agent within ten Business Days after having received notice thereof; and
(E) unless waived by the Administrative Agent, except in the case of an assignment to another Lender, an Affiliate of such Lender or an Approved Fund with respect to such Lender, or any Lenders in connection with the initial syndication of the Credit Facilities on or after the Closing Date, the Administrative Agent shall receive at the time of each such assignment, from the assigning or assignee Lender, the payment of a non-refundable assignment fee of $3,500; and
(E) any such assignment shall require the prior written consent (such consent (except with respect to assignments to competitors of the Borrower) not to be unreasonably withheld or delayed) of:
(1) the Borrower; provided that no consent of the Borrower shall be required for an assignment (x) by a Lender to any Lender or a U.S. based-Affiliate of any Lender, (y) by a Lender to an Approved Fund and (z) during a Specified Event of Default (unless such assignment is to a Disqualified Lender). Notwithstanding anything in this Section 11.06 to the contrary, if the Borrower has not given the Administrative Agent written notice of its objection to an assignment of Loans within fifteen (15) Business Days after written notice of such assignment, the Borrower shall be deemed to have consented to such assignment;
(2) the Administrative Agent; provided that no consent of the Administrative Agent shall be required for an assignment of a Loan to a Lender, an Affiliate of a Lender or an Approved Fund; and
(3) each LC Issuer and Swing Line Lender; provided that no consent of an LC Issuer or Swing Line Lender shall be required for an assignment of a Loan to a Lender, an Affiliate of a Lender or an Approved Fund.
(ii) To the extent of any assignment pursuant to this subsection subpart (c), the assigning Lender shall be relieved of its obligations hereunder with respect to its assigned CommitmentsCommitments provided, that except to the extent otherwise expressly agreed by the affected parties, no assignment by a Defaulting Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender’s having been a Defaulting Lender.
(iii) At the time of each assignment pursuant to this subsection subpart (c) ), to a Person that is not already a Lender hereunder, the respective assignee Lender shall provide to the Borrower and the Administrative Agent the applicable Internal Revenue Service Forms (and any necessary additional documentation) described in Section 3.02(e3.03(g).
(iv) With respect to any Lender, the transfer of any Commitment of such Lender and the rights to the principal of, and interest on, any Loan made pursuant to such Commitment shall not be effective until such transfer is recorded on the Lender Register maintained by the Administrative Agent (on behalf of and acting solely for this purpose as a non-fiduciary agent of the applicable Borrower) with respect pursuant to ownership of such Commitment and Loans, including the name and address of the Lenders and the principal amount of the Loans (and stated interest thereonSection 2.08(d). Prior to such recordation, all amounts owing to the transferor with respect to such Commitment and Loans shall remain owing to the transferor. The registration of assignment or transfer of all or part of any Commitments and Loans shall be recorded by the Administrative Agent on the Lender Register only upon the acceptance by the Administrative Agent of a properly executed and delivered Assignment Agreement pursuant to this subsection subpart (c). The entries in the Lender Register shall be conclusive absent manifest error, and the Borrower, the Administrative Agent and each Lender shall treat each person whose name is recorded in the Lender Register as a Lender hereunder for all purposes of this Agreement notwithstanding any notice to the contrary. The Lender Register shall be available for the inspection by the Borrower and any Lender (solely with respect to its own interest in any Loan or Commitment) at any reasonable time and from time to time upon reasonable prior notice.
(v) [Reserved].
(vi) Nothing in this Section 11.06(c) shall prevent or prohibit (A) any Lender that is a bank, trust company or other financial institution from pledging its Notes or Loans to a Federal Reserve Bank or to any Person that extends credit to such Lender in support of borrowings made by such Lender from such Federal Reserve Bank or such other Person, or (B) any Lender that is a trust, limited liability company, partnership or other investment company from pledging its Notes or Loans to a trustee or agent for the benefit of holders of certificates or debt securities issued by it. No such pledge, or any assignment pursuant to or in lieu of an enforcement of such a pledge, shall relieve the transferor Lender from its obligations hereunder. .
(vi) In connection with any assignment of rights and obligations of any Defaulting Lender hereunder, no such assignment shall be effective unless and until, in addition to the other conditions thereto set forth herein, the parties to the assignment shall make such additional payments to the Administrative Agent in an aggregate amount sufficient, upon distribution thereof as appropriate (which may be outright payment, purchases by the assignee of participations or sub-participationssubparticipations, or other compensating actions, including funding, with the consent of the Borrower and the Administrative Agent, the applicable pro rata share of Loans previously requested but not funded by the Defaulting Lender, to each of which the applicable assignee and assignor hereby irrevocably consent), to (x) pay and satisfy in full all payment liabilities then owed by such Defaulting Lender to the Administrative Agent or any Agent, each LC Issuer, each Swing Line Lender and each other Lender hereunder (and interest accrued thereon) ), and (y) acquire (and fund as appropriate) its full pro rata share of all Loans and participations in Letters of Credit and Swing Loans in accordance with its Applicable Revolving Facility Percentage. Notwithstanding the foregoing, in the event that any assignment of rights and obligations of any Defaulting Lender hereunder shall become effective under applicable law without compliance with the provisions of this paragraph, then the assignee of such interest shall be deemed to be a Defaulting Lender for all purposes of this Agreement until such compliance occurs.
(vii) Notwithstanding anything contained herein, no Lender may assign, sell, negotiate or otherwise transfer (a “Sale”) its Loans, LC Participations, Swing Loan Participations and/or Commitments to any Credit Party or any Affiliate of any of the foregoing.
Appears in 1 contract
Samples: Credit Agreement (Eastern Co)
Assignments by Lenders. (i) Any Lender may assign all, or if less than all, a fixed portion, of its Loans, LC Participations, Swing Loan Participations and/or Commitments and its rights and obligations hereunder to one or more Eligible Assignees, each of which shall become a party to this Agreement as a Lender by execution of an Assignment Agreement; provided, however, that:
(A) except in the case of (x) an assignment of the entire remaining amount of the assigning Lender’s Loans and/or Commitments or (y) an assignment to another Lender, an Affiliate of such Lender or an Approved Fund with respect to such Lender, the aggregate amount of the Commitment so assigned (which for this purpose includes the Loans outstanding thereunder) shall not be less than $2,500,000 (unless otherwise mutually agreed upon by the Borrower and the Administrative Agent)1,000,000;
(B) in the case of any assignment to an Eligible Assignee at the time of any such assignment the Lender Register shall be deemed modified to reflect the Commitments of such new Lender and of the existing Lenders;
(C) upon surrender of the old Notes, if any, upon request of the new Lender, new Notes will be issued, at the Borrower’s Borrowers’ expense, to such new Lender and to the assigning Lender, to the extent needed to reflect the revised Commitments;; and
(D) unless waived by the Administrative Agent, except in the case of an assignment to another Lender, an Affiliate of such Lender or an Approved Fund with respect to such Lender, or any Lenders in connection with the initial syndication of the Credit Facilities on or after the Closing Date, the Administrative Agent shall receive at the time of each such assignment, from the assigning or assignee Lender, the payment of a non-refundable assignment fee of $3,500; and
(E) any such assignment shall require the prior written consent (such consent (except with respect to assignments to competitors of the Borrower) not to be unreasonably withheld or delayed) of:
(1) the Borrower; provided that no consent of the Borrower shall be required for an assignment (x) by a Lender to any Lender or a U.S. based-Affiliate of any Lender, (y) by a Lender to an Approved Fund and (z) during a Specified Event of Default (unless such assignment is to a Disqualified Lender). Notwithstanding anything in this Section 11.06 to the contrary, if the Borrower has not given the Administrative Agent written notice of its objection to an assignment of Loans within fifteen (15) Business Days after written notice of such assignment, the Borrower shall be deemed to have consented to such assignment;
(2) the Administrative Agent; provided that no consent of the Administrative Agent shall be required for an assignment of a Loan to a Lender, an Affiliate of a Lender or an Approved Fund; and
(3) each LC Issuer and Swing Line Lender; provided that no consent of an LC Issuer or Swing Line Lender shall be required for an assignment of a Loan to a Lender, an Affiliate of a Lender or an Approved Fund.
(ii) To the extent of any assignment pursuant to this subsection subpart (c), the assigning Lender shall be relieved of its obligations hereunder with respect to its assigned CommitmentsCommitments provided, that except to the extent otherwise expressly agreed by the affected parties, no assignment by a Defaulting Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender’s having been a Defaulting Lender.
(iii) At the time of each assignment pursuant to this subsection subpart (c) to a Person that is not already a Lender hereunder), the respective assignee Lender shall provide to the Borrower Borrowers and the Administrative Agent the applicable Internal Revenue Service Forms (and any necessary additional documentation) described in Section 3.02(e3.03(g).
(iv) With respect to any Lender, the transfer of any Commitment of such Lender and the rights to the principal of, and interest on, any Loan made pursuant to such Commitment shall not be effective until such transfer is recorded on the Lender Register maintained by the Administrative Agent (on behalf of and acting solely for this purpose as a non-fiduciary agent of the applicable BorrowerBorrowers) with respect to ownership of such Commitment and Loans, including the name and address of the Lenders and the principal amount of the Loans (and stated interest thereon). Prior to such recordation, all amounts owing to the transferor with respect to such Commitment and Loans shall remain owing to the transferor. The registration of assignment or transfer of all or part of any Commitments and Loans shall be recorded by the Administrative Agent on the Lender Register only upon the acceptance by the Administrative Agent of a properly executed and delivered Assignment Agreement pursuant to this subsection subpart (c). The entries in the Lender Register shall be conclusive absent manifest error, and the Borrower, the Administrative Agent and each Lender shall treat each person whose name is recorded in the Lender Register as a Lender hereunder for all purposes of this Agreement notwithstanding any notice to the contrary. The Lender Register shall be available for the inspection by the Borrower and any Lender (solely with respect to its own interest in any Loan or Commitment) Borrowers at any reasonable time and from time to time upon reasonable prior notice.
(v) [Reserved].
(vi) Nothing in this Section 11.06(c) shall prevent or prohibit (A) any Lender that is a bank, trust company or other financial institution from pledging its Notes or Loans to a Federal Reserve Bank or to any Person that extends credit to such Lender in support of borrowings made by such Lender from such Federal Reserve Bank or such other Person, or (B) any Lender that is a trust, limited liability company, partnership or other investment company from pledging its Notes or Loans to a trustee or agent for the benefit of holders of certificates or debt securities issued by it. No such pledge, or any assignment pursuant to or in lieu of an enforcement of such a pledge, shall relieve the transferor Lender from its obligations hereunder. .
(vi) In connection with any assignment of rights and obligations of any Defaulting Lender hereunder, no such assignment shall be effective unless and until, in addition to the other conditions thereto set forth herein, the parties to the assignment shall make such additional payments to the Administrative Agent in an aggregate amount sufficient, upon distribution thereof as appropriate (which may be outright payment, purchases by the assignee of participations or sub-participationssubparticipations, or other compensating actions, including funding, with the consent of the Borrower Borrowers and the Administrative Agent, the applicable pro rata share of Loans previously requested but not funded by the Defaulting Lender, to each of which the applicable assignee and assignor hereby irrevocably consent), to (x) pay and satisfy in full all payment liabilities then owed by such Defaulting Lender to the Administrative Agent or any Agent, each LC Issuer and each other Lender hereunder (and interest accrued thereon) ), and (y) acquire (and fund as appropriate) its full pro rata share of all Loans and participations in Letters of Credit and Swing Loans in accordance with its Applicable Revolving Facility Percentage. Notwithstanding the foregoing, in the event that any assignment of rights and obligations of any Defaulting Lender hereunder shall become effective under applicable law without compliance with the provisions of this paragraph, then the assignee of such interest shall be deemed to be a Defaulting Lender for all purposes of this Agreement until such compliance occurs.
Appears in 1 contract
Assignments by Lenders. (i) Any Lender may assign all, or if less than all, a fixed portion, of its Loans, LC Participations, Swing Loan Participations participations in Swingline Loans and/or Commitments and its rights and obligations hereunder to one or more Eligible Assignees, each of which shall become a party to this Agreement as a Lender by execution of an Assignment Agreement; provided, however, that:
(A) except in the case of (x) an assignment of the entire remaining amount of the assigning Lender’s Loans and/or Commitments or (y) an assignment to another Lender, an Affiliate of such Lender or an Approved Fund with respect to such Lender, the aggregate amount of the Commitment so assigned (which for this purpose includes the Loans outstanding thereunder) shall not be less than $2,500,000 (5,000,000 in the case of any assignment of Revolving Loans and/or Revolving Commitments, unless otherwise mutually agreed upon by each of the Administrative Agent and, so long as no Event of Default has occurred and is continuing, the Borrower and the Administrative Agentotherwise consents (each such consent not to be unreasonably withheld or delayed);
(B) in the case of any assignment to an Eligible Assignee at the time of any such assignment the Lender Register shall be deemed modified to reflect the Commitments of such new Lender and of the existing Lenders;
(C) upon surrender of the old Notes, if any, upon request of the new Lender, new Notes will be issued, at the Borrower’s expense, to such new Lender and to the assigning Lender, to the extent needed to reflect the revised Commitments;; and
(D) unless waived by the Administrative Agent, except in the case of an assignment to another Lender, an Affiliate of such Lender or an Approved Fund with respect to such Lender, or any Lenders in connection with the initial syndication of the Credit Facilities on or after the Closing Date, the Administrative Agent shall receive at the time of each such assignment, from the assigning or assignee Lender, the payment of a non-refundable assignment fee of $3,500; and.
(Eii) any such Each partial assignment shall require the prior written consent (such consent (except with respect to assignments to competitors of the Borrower) not to be unreasonably withheld or delayed) of:
(1) the Borrower; provided that no consent of the Borrower shall be required for an assignment (x) by a Lender to any Lender or a U.S. based-Affiliate of any Lender, (y) by a Lender to an Approved Fund and (z) during a Specified Event of Default (unless such assignment is to a Disqualified Lender). Notwithstanding anything in this Section 11.06 to the contrary, if the Borrower has not given the Administrative Agent written notice of its objection to an assignment of Loans within fifteen (15) Business Days after written notice of such assignment, the Borrower shall be deemed to have consented to such assignment;
(2) the Administrative Agent; provided that no consent of the Administrative Agent shall be required for made as an assignment of a proportionate part of all the assigning Lender’s rights and obligations under this Agreement with respect to the Loan to a Lender, an Affiliate of a Lender or an Approved Fund; and
(3) each LC Issuer and Swing Line Lender; provided that no consent of an LC Issuer or Swing Line Lender shall be required for an assignment of a Loan to a Lender, an Affiliate of a Lender or an Approved Fundthe Commitment assigned.
(iiiii) To the extent of any assignment pursuant to this subsection subpart (c), the assigning Lender shall be relieved of its obligations hereunder with respect to its assigned CommitmentsCommitments provided, that except to the extent otherwise expressly agreed by the affected parties, no assignment by a Defaulting Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender’s having been a Defaulting Lender.
(iiiiv) At the time of each assignment pursuant to this subsection subpart (c) ), to a Person that is not already a Lender hereunder, the respective assignee Lender shall provide to the Borrower and the Administrative Agent the applicable Internal Revenue Service Forms (and any necessary additional documentation) described in Section 3.02(eSection 3.05(g).
(ivv) With respect to any Lender, the transfer of any Commitment of such Lender and the rights to the principal of, and interest on, any Loan made pursuant to such Commitment shall 109 not be effective until such transfer is recorded on the Lender Register maintained by the Administrative Agent (on behalf of and acting solely for this purpose as a non-fiduciary agent of the applicable Borrower) with respect to ownership of such Commitment and Loans, including the name and address of the Lenders and the principal amount of the Loans (and stated interest thereon). Prior to such recordation, all amounts owing to the transferor with respect to such Commitment and Loans shall remain owing to the transferor. The registration of assignment or transfer of all or part of any Commitments and Loans shall be recorded by the Administrative Agent on the Lender Register only upon the acceptance by the Administrative Agent of a properly executed and delivered Assignment Agreement pursuant to this subsection subpart (c). The entries in the Lender Register shall be conclusive absent manifest error, and the Borrower, the Administrative Agent and each Lender the Lenders shall treat each person Person whose name is recorded in the Lender Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement notwithstanding any notice to the contraryAgreement. The Lender Register shall be available for the inspection by the Borrower and any Lender (solely with respect to its own interest in any Loan or Commitment) at any reasonable time and from time to time upon reasonable prior notice.
(v) [Reserved].
(vi) Nothing in this Section 11.06(c) shall prevent or prohibit (A) any Lender that is a bank, trust company or other financial institution from pledging its Notes or Loans to a Federal Reserve Bank or to any Person that extends credit to such Lender in support of borrowings made by such Lender from such Federal Reserve Bank or such other Person, or (B) any Lender that is a trust, limited liability company, partnership or other investment company from pledging its Notes or Loans to a trustee or agent for the benefit of holders of certificates or debt securities issued by it. No such pledge, or any assignment pursuant to or in lieu of an enforcement of such a pledge, shall relieve the transferor Lender from its obligations hereunder. .
(vii) In connection with any assignment of rights and obligations of any Defaulting Lender hereunder, no such assignment shall be effective unless and until, in addition to the other conditions thereto set forth herein, the parties to the assignment shall make such additional payments to the Administrative Agent in an aggregate amount sufficient, upon distribution thereof as appropriate (which may be outright payment, purchases by the assignee of participations or sub-participationssubparticipations, or other compensating actions, including funding, with the consent of the Borrower and the Administrative Agent, the applicable pro rata share of Loans previously requested but not funded by the Defaulting Lender, to each of which the applicable assignee and assignor hereby irrevocably consent), to (x) pay and satisfy in full all payment liabilities then owed by such Defaulting Lender to the Administrative Agent or any Agent, the LC Issuers, the Swingline Lender and each other Lender hereunder (and interest accrued thereon) ), and (y) acquire (and fund as appropriate) its full pro rata share of all Loans and participations in Letters of Credit and Swing Swingline Loans in accordance with its Applicable Revolving Facility Percentage. Notwithstanding the foregoing, in the event that any assignment of rights and obligations of any Defaulting Lender hereunder shall become effective under applicable law without compliance with the provisions of this paragraph, then the assignee of such interest shall be deemed to be a Defaulting Lender for all purposes of this Agreement until such compliance occurs. Notwithstanding anything contained herein, no Lender may assign, sell, negotiate or otherwise transfer its Loans, LC Participations, participations in Swingline Loans and/or Revolving Commitments to any Credit Party or any Subsidiary or Affiliate thereof.
Appears in 1 contract
Assignments by Lenders. (i) Any Lender may assign all, or if less than all, a fixed portion, of its Loans, LC Participations, Swing Loan Participations and/or Commitments and its rights and obligations hereunder to one or more Eligible Assignees, each of which shall become a party to this Agreement as a Lender by execution of an Assignment Agreement; provided, however, that:
(A) except in the case of (x) an assignment of the entire remaining amount of the assigning Lender’s Loans and/or Commitments or (y) an assignment to another Lender, an Affiliate of such Lender or an Approved Fund with respect to such Lender, the aggregate amount of the Commitment so assigned (which for this purpose includes the Loans outstanding thereunder) shall not be less than $2,500,000 1,000,000, in the case of Term Loans or $2,000,000, in the case of Revolving Loans and Revolving Commitments (unless otherwise mutually agreed upon by the Parent Borrower and the Administrative Agent);
(B) in the case of any assignment to an Eligible Assignee at the time of any such assignment the Lender Register shall be deemed modified to reflect the Commitments of such new Lender and of the existing Lenders;
(C) upon surrender of the old Notes, if any, upon request of the new Lender, new Notes will be issued, at the Parent Borrower’s expense, to such new Lender and to the assigning Lender, to the extent needed to reflect the revised Commitments;
(D) unless waived by the Administrative Agent, except in the case of an assignment to another Lender, an Affiliate of such Lender or an Approved Fund with respect to such Lender, or any Lenders in connection with the initial syndication of the Credit Facilities on or after the Closing Date, the Administrative Agent shall receive at the time of each such assignment, from the assigning or assignee Lender, the payment of a non-refundable assignment fee of $3,500; and
(E) any such assignment shall require the prior written consent (such consent (except with respect to assignments to competitors of the Borrower) not to be unreasonably withheld or delayed) of:
(1) the Borrower; provided that no consent of the Parent Borrower shall be required for an assignment (x) by a Lender to any Lender or a U.S. based-Affiliate of any Lender, (y) by a Lender to an Approved Fund and (z) during a Specified Event of Default (unless such assignment is to a Disqualified Lender). Notwithstanding anything in this Section 11.06 to the contrary, if the Borrower has not given the Administrative Agent written notice of its objection to an assignment of Loans within fifteen (15) Business Days after written notice of such assignment, the Borrower shall will be deemed to have consented given the consent required in the definition of “Eligible Assignee” to such assignment;
assignment if Parent Borrower has not responded in writing within ten (210) the Administrative Agent; provided that no consent of the Administrative Agent shall be required for an assignment Business Days of a Loan to a Lender, an Affiliate of a Lender or an Approved Fund; and
(3) each LC Issuer and Swing Line Lender; provided that no consent of an LC Issuer or Swing Line Lender shall be required request for an assignment of a Loan to a Lender, an Affiliate of a Lender or an Approved Fundconsent.
(ii) To the extent of any assignment pursuant to this subsection clause (c), the assigning Lender shall be relieved of its obligations hereunder with respect to its assigned Commitments.
(iii) At the time of each assignment pursuant to this subsection clause (c) to a Person that is not already a Lender hereunder, the respective assignee Lender shall provide to the Parent Borrower and the Administrative Agent the applicable Internal Revenue Service Forms (and any necessary additional documentation) described in Section 3.02(e3.02(g).
(iv) With respect to any Lender, the transfer of any Commitment of such Lender and the rights to the principal of, and interest on, any Loan made pursuant to such Commitment shall not be effective until such transfer is recorded on the Lender Register maintained by the Administrative Agent (on behalf of and acting solely for this purpose as a non-fiduciary agent of the applicable BorrowerBorrowers) with respect to ownership of such Commitment and Loans, including the name and address of the Lenders and the principal amount of the Loans (and stated interest thereon). Prior to such recordation, all amounts owing to the transferor with respect to such Commitment and Loans shall remain owing to the transferor. The registration of assignment or transfer of all or part of any Commitments and Loans shall be recorded by the Administrative Agent on the Lender Register only upon the acceptance by the Administrative Agent of a properly executed and delivered Assignment Agreement pursuant to this subsection clause (c). The entries in the Lender Register shall be conclusive absent manifest error, and the each Borrower, the Administrative Agent and each Lender shall treat each person whose name is recorded in the Lender Register as a Lender hereunder for all purposes of this Agreement notwithstanding any notice to the contrary. The Lender Register shall be available for the inspection by the Parent Borrower and any Lender (solely with respect to its own interest in any Loan or Commitment) at any reasonable time and from time to time upon reasonable prior notice.
(v) [Reserved].
(vi) Nothing in this Section 11.06(c10.06(c) shall prevent or prohibit (A) any Lender that is a bank, trust company or other financial institution from pledging its Notes or Loans to a Federal Reserve Bank or to any Person that extends credit to such Lender in support of borrowings made by such Lender from such Federal Reserve Bank or such other Person, or (B) any Lender that is a trust, limited liability company, partnership or other investment company from pledging its Notes or Loans to a trustee or agent for the benefit of holders of certificates or debt securities issued by it. No such pledge, or any assignment pursuant to or in lieu of an enforcement of such a pledge, shall relieve the transferor Lender from its obligations hereunder. In connection with any assignment of rights and obligations of any Defaulting Lender hereunder, no such assignment shall be effective unless and until, in addition to the other conditions thereto set forth herein, the parties to the assignment shall make such additional payments to the Administrative Agent in an aggregate amount sufficient, upon distribution thereof as appropriate (which may be outright payment, purchases by the assignee of participations or sub-participationssubparticipations, or other compensating actions, including funding, with the consent of the Parent Borrower and the Administrative Agent, the applicable pro rata share of Loans previously requested but not funded by the Defaulting Lender, to each of which the applicable assignee and assignor hereby irrevocably consent), to (x) pay and satisfy in full all payment liabilities then owed by such Defaulting Lender to the Administrative Agent or any Lender hereunder (and interest accrued thereon) and (y) acquire (and fund as appropriate) its full pro rata share of all Loans and participations in Letters of Credit and Swing Loans in accordance with its Applicable Revolving Facility Percentage. Notwithstanding the foregoing, in the event that any assignment of rights and obligations of any Defaulting Lender hereunder shall become effective under applicable law without compliance with the provisions of this paragraph, then the assignee of such interest shall be deemed to be a Defaulting Lender for all purposes of this Agreement until such compliance occurs.
Appears in 1 contract
Assignments by Lenders. (i) Any Subject to the conditions set forth in paragraph (b)(ii) below, any Lender may assign all, or if less than all, a fixed portion, of its Loans, LC Participations, Swing Loan Participations and/or Commitments and its rights and obligations hereunder delegate to one or more Eligible Assignees, each Assignees all or a portion of which shall become a party to its rights and obligations under this Agreement as (including all or a Lender by execution portion of an Assignment Agreement; provided, however, that:
(A) except in the case of (x) an assignment of the entire remaining amount of the assigning Lender’s Loans and/or Commitments or (y) an assignment to another Lender, an Affiliate of such Lender or an Approved Fund with respect to such Lender, the aggregate amount of the its Commitment so assigned (which for this purpose includes and the Loans outstanding thereunder) shall not be less than $2,500,000 (unless otherwise mutually agreed upon by the Borrower and the Administrative Agent);
(B) in the case of any assignment to an Eligible Assignee at the time of any such assignment the Lender Register shall be deemed modified owing to reflect the Commitments of such new Lender and of the existing Lenders;
(Cit) upon surrender of the old Notes, if any, upon request of the new Lender, new Notes will be issued, at the Borrower’s expense, to such new Lender and to the assigning Lender, to the extent needed to reflect the revised Commitments;
(D) unless waived by the Administrative Agent, except in the case of an assignment to another Lender, an Affiliate of such Lender or an Approved Fund with respect to such Lender, or any Lenders in connection with the initial syndication of the Credit Facilities on or after the Closing Date, the Administrative Agent shall receive at the time of each such assignment, from the assigning or assignee Lender, the payment of a non-refundable assignment fee of $3,500; and
(E) any such assignment shall require the prior written consent (such consent (except with respect to assignments to competitors of the Borrower) not to be unreasonably withheld or delayed) of:
of (1A) the Borrower; provided that no consent of the Borrower shall be required (1) for an assignment (x) by and delegation to a Lender, an Affiliate of a Lender or an Approved Fund, (2) for an assignment and delegation by any Initial Lender following the Effective Date to any Lender assignees identified to the Borrower prior to the Effective Date in connection with the primary syndication of the Commitments or a U.S. based-Affiliate of any Lender, the Loans or (y3) by a Lender to if an Approved Fund and (z) during a Specified Event of Default (unless such has occurred and is continuing, for any other assignment is to a Disqualified Lender). Notwithstanding anything in this Section 11.06 to the contrary, if the Borrower has not given the Administrative Agent written notice of its objection to an assignment of Loans within fifteen (15) Business Days after written notice of such assignment, and delegation; provided further that the Borrower shall be deemed to have consented to any such assignment;
assignment and delegation unless it shall object thereto by written notice to the Administrative Agent within five Business Days after having received notice thereof, and (2B) the Administrative Agent; provided that no consent of the Administrative Agent shall be required for an assignment and delegation (1) of all or any portion of a Term Loan to a Lender, an Affiliate of a Lender or an Approved Fund; andFund or (2) of all or any portion of a Revolving Commitment or Revolving Loans to an existing Revolving Lender, (C) each Issuing Bank, in the case of any assignment and delegation of all or a portion of a Revolving Commitment or any Lender’s obligations in respect of its LC Exposure (other than to an existing Revolving Lender) and (D) the Swingline Lender, in the case of any assignment and delegation of all or a portion of a Revolving Commitment or any Lender’s obligations in respect of its Swingline Exposure (other than to an existing Revolving Lender).
(3ii) each LC Issuer Assignments and Swing Line Lender; provided that no consent delegations shall be subject to the following additional conditions: (A) except in the case of an LC Issuer or Swing Line Lender shall be required for an assignment of a Loan and delegation to a Lender, an Affiliate of a Lender or an Approved Fund.
(ii) To Fund or an assignment and delegation of the extent entire remaining amount of the assigning Lender’s Commitment or Loans of any assignment pursuant to this subsection (c)Class, the amount of the Commitment or Loans of the assigning Lender shall be relieved subject to each such assignment and delegation (determined as of its obligations hereunder the trade date specified in the Assignment and Assumption with respect to its assigned Commitments.
(iiisuch assignment and delegation or, if no trade date is so specified, as of the date the Assignment and Assumption with respect to such assignment and delegation is delivered to the Administrative Agent) At shall not be less than $5,000,000 or, in the time case of Term Loans, $1,000,000, unless each assignment pursuant to this subsection (c) to a Person that is not already a Lender hereunder, the respective assignee Lender shall provide to of the Borrower and the Administrative Agent otherwise consents (such consent not to be unreasonably withheld or delayed); provided that no such consent of the Borrower shall be required if an Event of Default has occurred and is continuing, (B) each partial assignment and delegation shall be made as an assignment and delegation of a proportionate part of all the assigning Lender’s rights and obligations under this Agreement; provided that this clause (B) shall not be construed to prohibit the assignment and delegation of a proportionate part of all the assigning Lender’s rights and obligations in respect of one Class of Commitments or Loans, (C) the parties to each assignment and delegation shall execute and deliver to the Administrative Agent an Assignment and Assumption, together with a processing and recordation fee of $3,500; provided that (1) only one such processing and recordation fee shall be payable in the event of simultaneous assignments and delegations from any Lender or its Approved Funds to one or more other Approved Funds of such Lender and (2) with respect to any assignment and delegation pursuant to Section 2.19(b) or 9.02(c), the parties hereto agree that such assignment and delegation may be effected pursuant to an Assignment and Assumption executed by the Borrower, the Administrative Agent and the assignee and that the Lender required to make such assignment and delegation need not be a party thereto, and (D) the assignee, if it shall not be a Lender, shall (1) deliver to the Administrative Agent and to the Borrower any tax forms required by Section 2.17(f) and (2) to the Administrative Agent an Administrative Questionnaire in which the assignee designates one or more credit contacts to whom all syndicate-level information (which may contain MNPI) will be made available and who may receive such information in accordance with the assignee’s compliance procedures and applicable Internal Revenue Service Forms law, including Federal, State and foreign securities laws.
(iii) Subject to acceptance and recording thereof pursuant to paragraph (b)(v) of this Section, from and after the effective date specified in each Assignment and Assumption, the assignee thereunder shall be a party hereto and, to the extent of the interest assigned and delegated by such Assignment and Assumption, have the rights and obligations of a Lender under this Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned and delegated by such Assignment and Assumption, be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption covering all the assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto but shall continue to be entitled to the benefits of (and subject to the obligations and limitations of) Sections 2.14, 2.15, 2.16 and 9.03 and to any necessary additional documentation) described fees payable hereunder that have accrued for such Lender’s account but have not yet been paid). Any assignment, delegation or other transfer by a Lender of rights or obligations under this Agreement that does not comply with this Section shall be treated for purposes of this Agreement as a sale by such Lender of a participation in such rights and obligations in accordance with Section 3.02(e9.04(c).
(iv) With respect to any LenderThe Administrative Agent, the transfer of any Commitment of such Lender and the rights to the principal of, and interest on, any Loan made pursuant to such Commitment shall not be effective until such transfer is recorded on the Lender Register maintained by the Administrative Agent (on behalf of and acting solely for this purpose as a non-fiduciary agent of the applicable Borrower) with respect , shall maintain at one of its offices a copy of each Assignment and Assumption delivered to ownership of such Commitment it and Loans, including a register for the name and address recordation of the Lenders names and addresses of the Lenders, and the Commitment of, and principal amount (and stated interest) of the Loans (and stated interest thereon). Prior to such recordationLC Disbursements owing to, all amounts owing each Lender pursuant to the transferor with respect terms hereof from time to such Commitment and Loans shall remain owing to time (the transferor. The registration of assignment or transfer of all or part of any Commitments and Loans shall be recorded by the Administrative Agent on the Lender Register only upon the acceptance by the Administrative Agent of a properly executed and delivered Assignment Agreement pursuant to this subsection (c“Register”). The entries in the Lender Register shall be conclusive absent manifest error, and Holdings, the Borrower, the Administrative Agent Agent, the Issuing Banks and each Lender the Lenders shall treat each person Person whose name is recorded in the Lender Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement Agreement, notwithstanding any notice to the contrary. The Lender Register shall be available for the inspection by the Borrower and and, as to entries pertaining to it, any Lender (solely with respect to its own interest in Issuing Bank or any Loan or Commitment) Lender, at any reasonable time and from time to time upon reasonable prior notice.
(v) [Reserved]Upon receipt by the Administrative Agent of a duly completed Assignment and Assumption executed by an assigning Lender and an assignee, the assignee’s completed Administrative Questionnaire and any tax forms required by Section 2.17(f) (unless the assignee shall already be a Lender hereunder), the processing and recordation fee referred to in paragraph (b) of this Section and any written consent to such assignment and delegation required by paragraph (b) of this Section, the Administrative Agent shall accept such Assignment and Assumption and record the information contained therein in the Register; provided that the Administrative Agent shall not be required to accept such Assignment and Assumption or so record the information contained therein if the Administrative Agent reasonably believes that such Assignment and Assumption lacks any written consent required by this Section or is otherwise not in proper form, it being acknowledged that the Administrative Agent shall have no duty or obligation (and shall incur no liability) with respect to obtaining (or confirming the receipt) of any such written consent or with respect to the form of (or any defect in) such Assignment and Assumption, any such duty and obligation being solely with the assigning Lender and the assignee. No assignment or delegation shall be effective for purposes of this Agreement unless it has been recorded in the Register as provided in this paragraph and, following such recording, unless otherwise determined by the Administrative Agent (such determination to be made in the sole discretion of the Administrative Agent, which determination may be conditioned on the consent of the assigning Lender and the assignee), shall be effective notwithstanding any defect in the Assignment and Assumption relating thereto. Each assigning Lender and the assignee, by its execution and delivery of an Assignment and Assumption, shall be deemed to have represented to the Administrative Agent that all written consents required by this Section with respect thereto (other than the consent of the Administrative Agent) have been obtained and that such Assignment and Assumption is otherwise duly completed and in proper form, and each assignee, by its execution and delivery of an Assignment and Assumption, shall be deemed to have represented to the assigning Lender and the Administrative Agent that such assignee is an Eligible Assignee.
(vi) Nothing The words “execution”, “signed”, “signature” and words of like import in this Section 11.06(c) shall prevent or prohibit (A) any Lender that is a bank, trust company or other financial institution from pledging its Notes or Loans to a Federal Reserve Bank or to any Person that extends credit to such Lender in support of borrowings made by such Lender from such Federal Reserve Bank or such other Person, or (B) any Lender that is a trust, limited liability company, partnership or other investment company from pledging its Notes or Loans to a trustee or agent for the benefit of holders of certificates or debt securities issued by it. No such pledge, or any assignment pursuant to or in lieu of an enforcement of such a pledge, shall relieve the transferor Lender from its obligations hereunder. In connection with any assignment of rights Assignment and obligations of any Defaulting Lender hereunder, no such assignment shall be effective unless and until, in addition to the other conditions thereto set forth herein, the parties to the assignment shall make such additional payments to the Administrative Agent in an aggregate amount sufficient, upon distribution thereof as appropriate (which may be outright payment, purchases by the assignee of participations or sub-participations, or other compensating actions, including funding, with the consent of the Borrower and the Administrative Agent, the applicable pro rata share of Loans previously requested but not funded by the Defaulting Lender, to each of which the applicable assignee and assignor hereby irrevocably consent), to (x) pay and satisfy in full all payment liabilities then owed by such Defaulting Lender to the Administrative Agent or any Lender hereunder (and interest accrued thereon) and (y) acquire (and fund as appropriate) its full pro rata share of all Loans and participations in Letters of Credit and Swing Loans in accordance with its Applicable Percentage. Notwithstanding the foregoing, in the event that any assignment of rights and obligations of any Defaulting Lender hereunder shall become effective under applicable law without compliance with the provisions of this paragraph, then the assignee of such interest Assumption shall be deemed to include electronic signatures or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a Defaulting Lender manually executed signature or the use of a paper-based recordkeeping system, as applicable, to the extent and as provided for all purposes of this Agreement until such compliance occursin any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act or any other similar State laws based on the Uniform Electronic Transactions Act.
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Assignments by Lenders. (i) Any Lender may assign all, or if less than all, a fixed portion, of its Loans, LC Participations, Swing Loan Participations and/or Commitments (in each case together with a proportional interest in the Security Documents governed by Swedish law, if any) and its rights and obligations hereunder to one or more Eligible Assignees, each of which shall become a party to this Agreement as a Lender by execution of an Assignment Agreement; provided, however, that:
that (A) except in the case of (x) an assignment of the entire remaining amount of the assigning Lender’s Loans and/or Commitments or (y) an assignment to another Lender, an Affiliate of such Lender or an Approved Fund with respect to such Lender, the aggregate amount of the Commitment so assigned (which for this purpose includes the Loans outstanding thereunder) shall not be less than $2,500,000 (unless otherwise mutually agreed upon by 1,000,000 in the Borrower case of any assignment in respect of the Revolving Facility and $1,000,000 in the Administrative Agent);
case of any assignment in respect of the Term Loans; (B) in the case of any assignment to an Eligible Assignee at the time of any such assignment the Lender Register shall be deemed modified to reflect the Commitments of such new Lender and of the existing Lenders;
(C) upon surrender of the old Notes, if any, upon request of the new Lender, new Notes will be issued, at the Borrower’s expense, to such new Lender and to the assigning Lender, to the extent needed to reflect the revised Commitments;
(D) unless waived by the Administrative Agent, except in the case of an assignment to another Lender, an Affiliate of such Lender or an Approved Fund with respect to such Lender, or any Lenders in connection with the initial syndication of the Credit Facilities on or after the Closing Date, the Administrative Agent shall receive at the time of each such assignment, from the assigning or assignee Lender, the payment of a non-refundable assignment fee of $3,500; and
(E) any such assignment shall require the prior written consent (such consent (except with respect to assignments to competitors of the Borrower) not to be unreasonably withheld or delayed) of:
(1) the Borrower; provided that no consent of the Borrower shall be required for an assignment (x) by a Lender to any Lender or a U.S. based-Affiliate of any Lender, (y) by a Lender to an Approved Fund and (z) during a Specified Event of Default (unless such assignment is to a Disqualified Lender). Notwithstanding anything in this Section 11.06 to the contrary, if the Borrower has not given the Administrative Agent written notice of its objection to an assignment of Loans within fifteen (15) Business Days after written notice of such assignment, the Borrower shall be deemed to have consented to such assignment;
(2) the Administrative Agent; provided that no consent of the Administrative Agent shall be required for an assignment of a Loan to a Lender, an Affiliate of a Lender or an Approved Fund; and
(3) each LC Issuer and Swing Line Lender; provided that no consent of an LC Issuer or Swing Line Lender shall be required for an assignment of a Loan to a Lender, an Affiliate of a Lender or an Approved Fund.
(ii) To the extent of any assignment pursuant to this subsection subpart (c), the assigning Lender shall be relieved of its obligations hereunder with respect to its assigned Commitments; provided that, except to the extent otherwise expressly agreed by the affected parties, no assignment by a Defaulting Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender’s having been a Defaulting Lender.
(iii) At the time of each assignment pursuant to this subsection subpart (c) ), to a Person that is not already a Lender hereunder, the respective assignee Lender shall provide to the U.S. Borrower and the Administrative Agent the applicable Internal Revenue Service Forms (and any necessary additional documentation) all other documentation described in Section 3.02(e3.03(g).
(iv) With respect to any Lender, the transfer of any Commitment of such Lender and the rights to the principal of, and interest on, any Loan made pursuant to such Commitment shall not be effective until such transfer is recorded on the Lender Register maintained by the Administrative Agent (on behalf of and acting solely for this purpose as a non-fiduciary agent of the applicable U.S. Borrower) with respect to ownership of such Commitment and Loans, including the name and address of the Lenders and the principal amount of the Loans (and stated interest thereon). Prior to such recordation, all amounts owing to the transferor with respect to such Commitment and Loans shall remain owing to the transferor. The registration of assignment or transfer of all or part of any Commitments and Loans shall be recorded by the Administrative Agent on the Lender Register only upon the acceptance by the Administrative Agent of a properly executed and delivered Assignment Agreement pursuant to this subsection subpart (c). The entries in the Lender Register shall be conclusive absent manifest error, and the Borrower, the Administrative Agent and each Lender shall treat each person whose name is recorded in the Lender Register as a Lender hereunder for all purposes of this Agreement notwithstanding any notice to the contrary. The Lender Register shall be available for the inspection by the Borrower and any Lender (solely with respect to its own interest in any Loan or Commitment) at any reasonable time and from time to time upon reasonable prior notice.
(v) [Reserved].
(vi) Nothing in this Section 11.06(c) shall prevent or prohibit (A) any Lender that is a bank, trust company or other financial institution from pledging its Notes or Loans to a Federal Reserve Bank Bank, central banking authority or to any Person that extends credit to such Lender in support of borrowings made by such Lender from such Federal Reserve Bank Bank, central banking authority or such other Person, or (B) any Lender that is a trust, limited liability company, partnership or other investment company from pledging its Notes or Loans to a trustee or agent for the benefit of holders of certificates or debt securities issued by it. No such pledge, or any assignment pursuant to or in lieu of an enforcement of such a pledge, shall relieve the transferor Lender from its obligations hereunder. .
(vi) In connection with any assignment of rights and obligations of any Defaulting Lender hereunder, no such assignment shall be effective unless and until, in addition to the other conditions thereto set forth herein, the parties to the assignment shall make such additional payments to the Administrative Agent in an aggregate amount sufficient, upon distribution thereof as appropriate (which may be outright payment, purchases by the assignee of participations or sub-participationssubparticipations, or other compensating actions, including funding, with the consent of the U.S. Borrower and the Administrative Agent, the applicable pro rata share of Loans previously requested but not funded by the Defaulting Lender, to each of which the applicable assignee and assignor hereby irrevocably consent), to (x) pay and satisfy in full all payment liabilities then owed by such Defaulting Lender to the Administrative Agent or any Agent, each LC Issuer and each other Lender hereunder (and interest accrued thereon) ), and (y) acquire (and fund as appropriate) its full pro rata share of all Loans and participations in Letters of Credit and Swing Loans in accordance with its Applicable Revolving Facility Percentage. Notwithstanding the foregoing, in the event that any assignment of rights and obligations of any Defaulting Lender hereunder shall become effective under applicable law without compliance with the provisions of this paragraph, then the assignee of such interest shall be deemed to be a Defaulting Lender for all purposes of this Agreement until such compliance occurs.
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