Assignments, Participations, etc. (a) Any Lender may, with the written consent of Culligan, the Administrative Agent, the Issuing Lender and the Swing Line Lender (which consents shall not be unreasonably withheld), at any time assign and delegate to one or more Eligible Assignees (provided that no written consent of Culligan, the Administrative Agent, the Issuing Lender or the Swing Line Lender shall be required in connection with any assignment and delegation by a Lender to an Eligible Assignee that is an Affiliate of such Lender (so long as such assignment will not result in any increased costs to the Borrowers) or to another Lender) (each an "Assignee") all or any part of the Loans, the Commitment, the L/C Obligations and the other rights and obligations of such Lender hereunder, in a minimum Dollar Equivalent amount of U.S. $5,000,000 or, if less, the entire amount of the Loans, Commitment, L/C Obligations and other rights and obligations of such Lender hereunder; provided that (i) the Borrowers and the Administrative Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (x) written notice of such assignment, together with payment instructions, addresses and related information with respect to the Assignee, shall have been given to Culligan and the Administrative Agent by such Lender and the Assignee; (y) such Lender and the Assignee shall have delivered to the Borrowers and the Administrative Agent an Assignment and Acceptance in the form of Exhibit H ("Assignment and Acceptance") together with any Note or Notes subject to such assignment; and (z) such Lender or the Assignee shall have paid to the Administrative Agent a processing fee in the amount of U.S. $3,000; and (ii) concurrently with such assignment, the assignor Lender shall assign to the Assignee a proportionate share of its loans, commitment and other rights and obligations under the Long-Term Credit Agreement. (b) From and after the date that the Administrative Agent notifies the assignor Lender that it has received (and, to the extent required, provided its consent and received the consents of Culligan, the Issuing Lender and the Swing Line Lender with respect to) an executed Assignment and Acceptance and payment of the above-referenced processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights hereunder have been assigned to it and obligations hereunder have been assumed by it pursuant to such Assignment and Acceptance, shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assignor Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under the Loan Documents. (c) Any Lender may at any time sell to one or more commercial banks or other Persons not Affiliates of Culligan (a "Participant") participating interests in any Loan, the Commitment of such Lender and the other interests of such Lender (the "originating Lender") hereunder and under the other Loan Documents; provided, however, that (i) the originating Lender's obligations under this Agreement shall remain unchanged, (ii) the originating Lender shall remain solely responsible for the performance of such obligations, (iii) the Borrowers, the Issuing Lender, the Swing Line Lender and the Administrative Agent shall continue to deal solely and directly with the originating Lender in connection with the originating Lender's rights and obligations under this Agreement and the other Loan Documents, and (iv) no Lender shall transfer or grant any participating interest under which the Participant has rights to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment, consent or waiver would require unanimous consent of the Lenders as described in the first proviso to Section 12. 1. In the case of any such participation, the Participant shall be entitled to the benefit of Sections 4.1, 4.3, 4.4, 4.6 and 12.5 as though it were also a Lender hereunder, and if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, the Participant shall be deemed to have the right of set-off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement. (d) Notwithstanding any other provision in this Agreement, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement and any Note held by it in favor of any Federal Reserve Bank in accordance with Regulation A of the FRB or U.S. Treasury Regulation 31 CFR (S)203.14, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law.
Appears in 1 contract
Samples: Short Term Credit Agreement (Culligan Water Technologies Inc)
Assignments, Participations, etc. (a) Any Lender may, with the written consent of CulliganBorrower, the Administrative Agent, the Issuing Lender and the Swing Line Lender (which consents consent shall not be unreasonably withheld), and Agent, at any time assign and delegate to one or more Eligible Assignees (provided that no written consent of Culligan, (i) the Administrative Agent, the Issuing Lender Agent or the Swing Line Lender Borrower shall be required in connection with any assignment and delegation by a Lender to an Eligible Assignee that is an Affiliate of such Lender and (so long as such assignment will not result in any increased costs to ii) Borrower is required upon the Borrowersthe occurrence of an Event of Default under Sections 7.1(f) or to another Lender7.1(g)) (each an "AssigneeASSIGNEE") all all, or any ratable part of all, of the Loans, the Commitment, the L/C Obligations Commitments and the other rights and obligations of such Lender hereunder, in a minimum Dollar Equivalent amount of U.S. $5,000,000 (unless Agent otherwise consents to a lesser amount) or, if less, the entire amount Commitment of the such Lender (provided that, unless all of such assigning Lender's Loans, Commitment, L/C Obligations Commitments and other rights and obligations are assigned, the assigning Lender shall retain a Commitment in a minimum amount of such Lender hereunder$5,000,000); provided PROVIDED, HOWEVER, that (i) the Borrowers Borrower and the Administrative Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until until:
(xi) written notice of such assignment, together with payment instructions, addresses and related information with respect to the Assignee, shall have been given to Culligan the Borrower and the Administrative Agent by such Lender and the Assignee; ;
(yii) such Lender and the its Assignee shall have delivered to the Borrowers Borrower and the Administrative Agent an Assignment and Acceptance in form and substance reasonably satisfactory to the form of Exhibit H Agent, such Lender and its Assignee (an "Assignment and AcceptanceASSIGNMENT AND ACCEPTANCE"); and
(iii) together with any Note or Notes subject to such assignment; and (z) such the assignor Lender or the Assignee shall have has paid to the Administrative Agent a processing fee in the amount of U.S. $3,000; and (ii) concurrently with such assignment, the assignor Lender shall assign to the Assignee a proportionate share of its loans, commitment and other rights and obligations under the Long-Term Credit Agreement3,500.
(b) From and after the date that the Administrative Agent notifies the assignor Lender that it the Agent has received (and, to the extent required, and provided its consent and received the consents of Culligan, the Issuing Lender and the Swing Line Lender with respect to) to an executed Assignment and Acceptance and payment of the above-referenced processing fee, :
(i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it and obligations hereunder have been assumed by it pursuant to such Assignment and Acceptance, shall have the rights and obligations of a Lender under this Agreement and the other Loan Documents, and ; and
(ii) the assignor Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under the Loan Documents.
(c) Any Lender may at any time sell Immediately upon the making of the processing fee payment to one or more commercial banks or other Persons not Affiliates the Agent in respect of Culligan (a "Participant") participating interests in any Loan, the Commitment of such Lender Assignment and the other interests of such Lender (the "originating Lender") hereunder and under the other Loan Documents; provided, however, that (i) the originating Lender's obligations under this Agreement shall remain unchanged, (ii) the originating Lender shall remain solely responsible for the performance of such obligations, (iii) the Borrowers, the Issuing Lender, the Swing Line Lender and the Administrative Agent shall continue to deal solely and directly with the originating Lender in connection with the originating Lender's rights and obligations under this Agreement and the other Loan Documents, and (iv) no Lender shall transfer or grant any participating interest under which the Participant has rights to approve any amendment to, or any consent or waiver with respect toAcceptance, this Agreement or any other Loan Document, except to the extent such amendment, consent or waiver would require unanimous consent of the Lenders as described in the first proviso to Section 12.
1. In the case of any such participation, the Participant shall be entitled to the benefit of Sections 4.1, 4.3, 4.4, 4.6 and 12.5 as though it were also a Lender hereunder, and if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, the Participant shall be deemed to have be amended to the right extent, but only to the extent, necessary to reflect the addition of set-off in respect the Assignee and the resulting adjustment of its participating interest in amounts owing under this Agreement the Commitments arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitment of the assigning Lender to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreementextent.
(d) Notwithstanding any other provision in this Agreement, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement and any Note held by it in favor of any Federal Reserve Bank in accordance with Regulation A of the FRB or U.S. Treasury Regulation 31 CFR (S)203.14, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law.
Appears in 1 contract
Samples: Credit Agreement (Packaged Ice Inc)
Assignments, Participations, etc. No Lender may transfer, pledge, assign, sell any participation in, or otherwise encumber its portion of the Loan Obligations except as permitted by clauses (a) or (b) below.
(a) Any Lender maymay (subject to the provisions of this section, in accordance with applicable law, in the written consent ordinary course of Culliganits business, the Administrative Agent, the Issuing Lender and the Swing Line Lender (which consents shall not be unreasonably withheld), at any time assign and delegate time) sell to one or more Eligible Assignees Persons (provided that no written consent each a “Participant”) participating interests in its portion of Culliganthe Loan Obligations, in which case the selling Lender shall remain a Lender under the Loan Documents, the Administrative Agent, the Issuing Lender or the Swing Line Lender Participant shall be required in connection with any assignment and delegation by not become a Lender to an Eligible Assignee that is an Affiliate under the Loan Documents, and the selling Lender’s obligations under the Loan Documents shall remain unchanged. Any Lender selling a participation hereunder shall remain solely responsible for the performance of such Lender (so long as such assignment will not result in any increased costs to its obligations and shall remain the Borrowers) or to another Lender) (each an "Assignee") all or any part holder of its share of the Loans, outstanding Loan for all purposes under the Commitment, the L/C Obligations Loan Documents. The Loan Parties and the other rights and obligations of such Lender hereunder, in a minimum Dollar Equivalent amount of U.S. $5,000,000 or, if less, the entire amount of the Loans, Commitment, L/C Obligations and other rights and obligations of such Lender hereunder; provided that (i) the Borrowers and the Administrative Agent may shall continue to deal solely and directly with such a Lender that has sold a participation hereunder in connection with that Lender’s rights and obligations under the interest so assigned Loan Documents, and each such Lender must retain the sole right and responsibility to an Assignee until enforce due obligations of the Loan Parties. Subject to the following, each Lender may obtain (xon behalf of its Participants) written notice the benefits of such assignment, together with payment instructions, addresses and related information Article XII with respect to all participations in its part of the AssigneeLoan Obligations outstanding from time to time so long as no Loan Party is obligated to pay any amount in excess of the amount that would be due to that Lender under Article XII calculated as though no participations have been made. Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, waiver or other modification described in the proviso to Section 12.01 that affects such Participant. Each Lender that sells a participation shall, acting solely for this purpose as a nonfiduciary agent of Borrower, maintain a register in the United States on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”). The entries in the Participant Register shall be conclusive, absent manifest error, and such Lender shall treat each person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. Borrower and Administrative Agent shall have been given inspection rights with respect to Culligan and such Participant Register (upon reasonable prior notice to the applicable Lender) solely for purposes of demonstrating that such Loans or other obligations under the Loan Documents are in “registered form” for purposes of the Code.
(b) Any Lender may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement to secure obligations of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank or other central banking authority; provided that no such pledge or assignment shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto. Each Lender may upon the written consent of Administrative Agent by such (which consent shall not be unreasonably withheld or delayed), each Issuing Lender and Swing Line Lender and, if no Event of Default exists, with the consent of Borrower (which consent shall not be unreasonably withheld or delayed) assign to one or more assignees (each an “Assignee; ”) all or any part of its rights and obligations under the Loan Documents so long as (yi) such the assignor Lender and the Assignee shall have delivered execute and deliver to the Borrowers and the Administrative Agent an Assignment assignment and Acceptance assumption agreement in substantially the form of Exhibit H E ("an “Assignment and Acceptance"Acceptance Agreement”) together with any Note or Notes subject and pay to such assignment; and (z) such Lender or the Assignee shall have paid to the Administrative Agent a processing fee in the amount of U.S. $3,000; and set forth on Appendix I, (ii) concurrently with such assignment, the Assignee acquires an identical percentage interest in the Commitment of the assignor Lender shall assign and an identical percentage of the interests in the outstanding Loan held by such assignor Lender, (iii) except in the case of an assignment to the Assignee another Lender or an assignment of all of a proportionate share of its loans, commitment and other Lender’s rights and obligations under this Agreement, any partial assignment shall be in an amount equal to $5,000,000 or an integral multiple of $1,000,000 in excess thereof, (iv) the Long-Term Credit Agreement.
conditions (bincluding, without limitation, (x) From minimum amounts of the Commitment that may be assigned or that must be retained, (y) receipt by Administrative Agent of a processing and recordation fee of $3,500 and (z) receipt by Administrative Agent of an Administrative Questionnaire unless the Assignee is already a Lender) for that assignment set forth in the applicable Assignment and Acceptance Agreement are satisfied, (v) no such assignment shall be made to (A) Parent or Borrower or any of their respective Affiliates or Subsidiaries, (B) any natural Person or (C) any Defaulting Lender or any of its Subsidiaries, or any Person who, upon becoming a Lender hereunder, would constitute any of the foregoing Persons described in this clause (C); provided, that the consent of Administrative Agent and of Borrower shall not be required in the case of any assignment to a Lender, an Affiliate of a Lender or an Approved Fund. The “Effective Date” in each Assignment and Acceptance Agreement must (unless a shorter period is agreeable to Borrower and Administrative Agent) be at least five (5) Business Days after it is executed and delivered by the assignor Lender and Assignee to Administrative Agent and Borrower for acceptance. Once an Assignment and Acceptance Agreement is accepted by Administrative Agent and Borrower, then, from and after the date that Effective Date stated therein (i) the Administrative Agent notifies the assignor Lender that it has received (Assignee automatically shall become a party to this Agreement and, to the extent required, provided its consent and received the consents of Culligan, the Issuing Lender and the Swing Line Lender with respect to) an executed in that Assignment and Acceptance and payment of the above-referenced processing feeAgreement, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights hereunder have been assigned to it and obligations hereunder have been assumed by it pursuant to such Assignment and Acceptance, shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assignor Lender shallLender, to the extent provided in that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and AcceptanceAcceptance Agreement, relinquish its rights and shall be released from its obligations to fund Borrowings under this Agreement and its reimbursement obligations under this Agreement and, in the case of an Assignment and Acceptance Agreement covering all of the remaining portion of the assignor Lender’s rights and obligations under the Loan Documents, that Lender ceases to be a party to the Loan Documents, (iii) Borrower shall execute and deliver to the assignor Lender and Assignee the appropriate Notes in accordance with this Agreement following the transfer, (iv) upon delivery of the Notes under clause (iii) preceding, the assignor Lender shall return to Borrower all Notes previously delivered to that Lender under this Agreement, and (v) Schedule 2.01 shall automatically be deemed to be amended to reflect the name, address, telecopy number, and Commitment of Assignee and the remaining Commitment (if any) of the assignor Lender, and Administrative Agent shall prepare and circulate to the Loan Parties and the Lenders an amended Schedule 2.01 reflecting those changes. 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 Administrative Agent in an aggregate amount sufficient, upon distribution thereof as appropriate (which may be outright payment, purchases by the assignee of participations or subparticipations, or other compensating actions, including funding, with the consent of Borrower and 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 Administrative Agent, each Issuing Lender, Swing Line Lender and each other Lender hereunder (and interest accrued thereon), and (y) acquire (and fund as appropriate) its full ratable portion (in accordance with its Pro Rata Share) of all Loans and participations in Letters of Credit and Swing Line Loans. 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.
(c) Any Lender may Administrative Agent, acting for this purpose as an agent of Borrower, shall maintain at any time sell one of its offices a copy of each Assignment and Acceptance Agreement delivered to one or more commercial banks or other Persons not Affiliates it and a register for the recordation of Culligan (a "Participant") participating interests in any Loanthe names and addresses, the Commitment Commitments, and the principal amount (and stated interest) of such the Loans of each Lender pursuant to the terms hereof from time to time (the “Register”). The entries in the Register shall be conclusive absent manifest error, and Borrower, Administrative Agent, the Issuing Lender and the other interests Lenders may treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of such Lender (this Agreement, notwithstanding notice to the "originating Lender") hereunder and under the other Loan Documents; provided, however, that (i) the originating Lender's obligations under this Agreement contrary. The Register shall remain unchanged, (ii) the originating Lender shall remain solely responsible be available for the performance of such obligations, (iii) the Borrowersinspection by Borrower, the Issuing Lender, the Swing Line Lender and the Administrative Agent shall continue to deal solely and directly with the originating Lender in connection with the originating Lender's rights and obligations under this Agreement and the other Loan Documents, and (iv) no Lender shall transfer or grant any participating interest under which the Participant has rights to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment, consent or waiver would require unanimous consent of the Lenders as described in the first proviso to Section 12.
1. In the case of any such participation, the Participant shall be entitled to the benefit of Sections 4.1, 4.3, 4.4, 4.6 and 12.5 as though it were also a Lender hereunder, and if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, the Participant shall be deemed to have the right of set-off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement.
(d) Notwithstanding any other provision in this Agreement, any Lender may at any reasonable time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement and any Note held by it in favor of any Federal Reserve Bank in accordance with Regulation A of the FRB or U.S. Treasury Regulation 31 CFR (S)203.14, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable lawfrom time to time upon reasonable prior notice.
Appears in 1 contract
Samples: Credit Agreement (Midstates Petroleum Company, Inc.)
Assignments, Participations, etc. (a) Any Each Lender may, with without the written consent of Culliganthe Borrower, but with prior notice to the Administrative Agent, the Issuing Lender and the Swing Line Lender (which consents shall not be unreasonably withheld), at any time sell or assign and delegate to one or more Eligible Assignees (provided that no written consent of Culligan, the Administrative Agent, the Issuing Lender or the Swing Line Lender shall be required in connection with any assignment and delegation by a Lender to an Eligible Assignee that is an Affiliate of such Lender (so long as such assignment will not result in any increased costs to the Borrowers) or to another Lender) (each an "Assignee") all or any part of the Loans, the Commitment, the L/C Obligations Loan of such Lender and the other rights and obligations of such Lender hereunder, in a minimum Dollar Equivalent amount of U.S. $5,000,000 or, if less, to any Person or any assignee thereof (an "Assignee") unless the entire amount sale or assignment of the Loans, Commitment, L/C Obligations Loan and such other rights and obligations of such Lender hereunder; provided that (i) would reasonably put the Borrowers and business of the Administrative Agent may continue to deal solely and directly with Borrower at a competitive disadvantage, then such Lender in connection with sale or assignment shall require the interest so assigned to an Assignee until (x) written notice consent of such assignment, together with payment instructions, addresses and related information with respect to the Assignee, shall have been given to Culligan and the Administrative Agent by such Lender and the Assignee; (y) such Borrower. The assigning Lender and the Assignee shall have delivered enter into an assignment agreement, in form and substance satisfactory to the Borrowers and the Administrative Agent (an Assignment and Acceptance in the form of Exhibit H ("Assignment and Acceptance") together ), with any Note respect to the sale or Notes assignment of the Loan to be assigned and, subject to such assignment; paragraphs (e) and (zf) of this Section 9.11, upon execution and delivery of such Lender or the Assignee shall have paid to the Administrative Agent a processing fee in the amount of U.S. $3,000; and (ii) concurrently with such assignment, the assignor Lender shall assign to the Assignee a proportionate share of its loans, commitment and other rights and obligations under the Long-Term Credit Agreement.
(b) From and after the date that the Administrative Agent notifies the assignor Lender that it has received (and, to the extent required, provided its consent and received the consents of Culligan, the Issuing Lender and the Swing Line Lender with respect to) an executed Assignment and Acceptance and payment of the above-referenced processing feeAcceptance, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it and obligations hereunder have been assumed by it pursuant to such Assignment and Acceptance, shall have the rights and obligations of a Lender hereunder and under the Loan other Financing Documents, and this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to effect the addition of the Assignee, and any reference to the assigning Lender hereunder or under the other Financing Documents shall thereafter refer to such Lender and to the Assignee to the extent of their respective interests, and (ii) the assignor assigning Lender shall, to the extent that rights and obligations hereunder and under the other Loan Financing Documents have been assigned by it pursuant to such Assignment and Acceptanceassignment agreement, relinquish its rights and be released from its obligations under the Loan Financing Documents.
(cb) Any Each Lender may at any time sell participations to one or more commercial banks or other Persons not Affiliates entities (other than the Borrower or any of Culligan (its Affiliates) in or to all or a "Participant") participating interests in any Loan, the Commitment portion of its rights and obligations under this Agreement and such Lender and the other interests of such Lender (the "originating Lender") hereunder and under the other Loan Documents's Note; provided, however, that (i) the originating such Lender's obligations under this Agreement shall remain unchanged, (ii) the originating such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) such Lender shall remain the Borrowersholder of any such Note for all purposes of this Agreement, (iv) the Issuing Lender, the Swing Line Lender Borrower and the Administrative Agent other Lenders shall continue to deal solely and directly with the originating such Lender in connection with the originating such Lender's rights and obligations under this Agreement and the other Loan Documents, and (ivv) no Lender participant under any such participation shall transfer or grant have any participating interest under which the Participant has rights right to approve any amendment toor waiver of any provision of this Agreement or any Note, or any consent or waiver with respect to, this Agreement or to any other Loan Documentdeparture by the Borrower therefrom, except to the extent that such amendment, waiver or consent would reduce the principal of, or waiver would require unanimous consent interest on, the Note or any fees or other amounts payable hereunder, or release of all or substantially all of the Lenders as described Collateral, in each case to the first proviso extent subject to Section 12.
1. In the case of any such participation, or postpone any date fixed for any payment of principal of, or interest on, the Participant shall be entitled Notes or any fees or other amounts payable hereunder, in each case to the benefit extent subject to such participation.
(c) A Lender may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section 9.11, disclose to the assignee or participant or proposed assignee or participant, any information relating to the Borrower furnished to such Lender by or on behalf of Sections 4.1the Borrower; provided, 4.3, 4.4, 4.6 and 12.5 as though it were also a Lender hereunder, and if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Defaultthat prior to any such disclosure, the Participant assignee or participant or proposed assignee or participant shall be deemed agree to have preserve the right confidentiality of set-off in respect of its participating interest in amounts owing under this Agreement any confidential information relating to the same extent as if the amount of its participating interest were owing directly to Borrower received by it as a Lender under this Agreementfrom such Lender.
(d) Notwithstanding any other provision contained in this AgreementAgreement or any other Financing Document to the contrary, any Lender may at any time create a security interest in, or pledge, assign all or any portion of its rights under and interest in this Agreement and any Note the Loan held by it as collateral security, provided that any payment in favor respect of any Federal Reserve Bank such assigned Loan or Note made by the Borrower to or for the account of the assigning or pledging Lender in accordance with Regulation A the terms of this Agreement shall satisfy the Borrower's obligations hereunder in respect to such assigned Loan or Note to the extent of such payment. No such assignment shall release the assigning Lender from its obligations hereunder.
(e) The Borrower hereby designates the Administrative Agent to serve as the Borrower's agent, solely for purposes of this Section 9.11, to maintain a register (the "Register") on which it will record the Loans made by each of the FRB Lenders and each repayment in respect of the principal amount of the Loans of each Lender. Failure to make any such recordation, or U.S. Treasury Regulation 31 CFR (S)203.14any error in such recordation shall not affect the Borrower's obligations in respect of such Loans. With respect to any Lender, the transfer of the rights to the principal of, and interest on, any Loan shall not be effective until such Federal Reserve Bank transfer is recorded on the Register maintained by the Administrative Agent with respect to ownership of such Loans and prior to such recordation all amounts owing to the transferor with respect to such Loans shall remain owing to the transferor. The registration of assignment or transfer of all or part of any Loans shall be recorded by the Administrative Agent on the Register only upon the acceptance by the Administrative Agent of a properly executed and delivered Assignment and Acceptance pursuant to Section 9.11
(a) The Borrower agrees to indemnify the Administrative Agent from and against any and all losses, claims, damages and liabilities of whatsoever nature which may enforce such pledge be imposed on, asserted against or security interest incurred by the Administrative Agent in performing its duties under this Section 9.11(e).
(f) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an Assignee (and, in any manner permitted under applicable lawcase where the consent of the Borrower is required by this Section, by the Borrower) together with payment to the Administrative Agent of a registration and processing fee of $3,500, the Administrative Agent shall (i) promptly accept such Assignment and Acceptance and (ii) on the effective date determined pursuant thereto record the information contained therein in the Register and give notice of such acceptance and recordation to the Borrower. On or prior to such effective date, the Borrower, at its own expense, upon request, shall execute and deliver to the Administrative Agent (in exchange for the Note of the assigning Lender) a new Note to the order of such Assignee in an amount equal to the Loan acquired by it pursuant to such Assignment and Acceptance and, if such assigning Lender has retained a Loan, a new Note to the order of such assigning Lender in an amount equal to the Loan retained by it hereunder.
Appears in 1 contract
Samples: Credit Agreement (Pg&e Corp)
Assignments, Participations, etc. (a) Any Lender may, with the written consent of Culligan, the Administrative Agent, the Issuing Lender and the Swing Line Lender Borrower (which consents consent shall not be unreasonably withheld)required during the existence of an Event of Default) and the Agent, at any time assign and delegate to one or more Eligible Assignees (provided that no written consent of Culligan, the Administrative Agent, the Issuing Lender Borrower or the Swing Line Lender Agent shall be required in connection with any assignment and delegation by a Lender to an Eligible Assignee that is an Affiliate of such Lender (so long as such assignment will not result in any increased costs to the Borrowers) or to another Lender) (each an "“Assignee"”) all all, or any ratable part of all, of the Loans, the Commitment, the L/C Obligations Commitments and the other rights and obligations of such Lender hereunder, in a minimum Dollar Equivalent amount of U.S. $5,000,000 U.S.$5,000,000 (or, if less, the entire amount of such Lender’s Commitment); provided, however, that the LoansBorrower, Commitment, L/C Obligations and other rights and obligations of such Lender hereunder; provided that (i) the Borrowers and the Administrative Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (xi) written notice of such assignment, together with payment instructions, addresses and related information with respect to the Assignee, shall have been given to Culligan the Borrower and the Administrative Agent by such Lender and the Assignee; (yii) such Lender and the its Assignee shall have delivered to the Borrowers Borrower and the Administrative Agent an Assignment and Acceptance in the form of Exhibit H D ("“Assignment and Acceptance"”) together with any Note or Notes subject to such assignment; assignment and (ziii) such Lender or the Assignee shall have has paid to the Administrative Agent a processing fee in the amount of U.S. $3,000; and (ii) concurrently with such assignment, the assignor Lender shall assign to the Assignee a proportionate share of its loans, commitment and other rights and obligations under the Long-Term Credit AgreementU.S.$3,500.
(b) From and after the date that the Administrative Agent notifies the assignor Lender that it has received and provided its consent (and, to the extent required, provided its consent and received the consents consent of Culligan, the Issuing Lender and the Swing Line Lender Borrower) with respect to) to an executed Assignment and Acceptance and payment of the above-referenced processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it and obligations hereunder have been assumed by it pursuant to such Assignment and Acceptance, shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assignor Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under the Loan Documents.
(c) Within five Business Days after the effectiveness of any Assignment and Acceptance pursuant to subsection 10.8(a)), the Borrower shall, upon request, execute and deliver to the Agent a new Note evidencing the applicable Assignee’s assigned Loans and Commitment and, if the assignor Lender has retained a portion of its Loans and its Commitment, a replacement Note in the principal amount of the Commitment retained by the assignor Lender (such Notes to be in exchange for, but not in payment of, the Note held by the assignor Lender). Immediately upon the effectiveness of any Assignment and Acceptance, this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and/or the resulting adjustment of the Commitments arising therefrom.
(d) Any Lender may at any time time, with notice to the Borrower, sell to one or more commercial banks or other Persons not Affiliates of Culligan the Borrower (a "“Participant"”) participating interests in any LoanLoans, the Commitment of such Lender and the other interests of such Lender (the "“originating Lender"”) hereunder and under the other Loan Documents; provided, however, that (i) the originating Lender's ’s obligations under this Agreement shall remain unchanged, (ii) the originating Lender shall remain solely responsible for the performance of such obligations, (iii) the Borrowers, the Issuing Lender, the Swing Line Lender Borrower and the Administrative Agent shall continue to deal solely and directly with the originating Lender in connection with the originating Lender's ’s rights and obligations under this Agreement and the other Loan Documents, and (iv) no Lender shall transfer or grant any participating interest under which the a Participant has rights to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment, consent or waiver would require unanimous consent of the Lenders as described in the first proviso to Section 1210.
1. In the case of any such participation, the Participant shall be entitled to the benefit of Sections 4.13.1, 4.33.3, 4.4, 4.6 3.4 and 12.5 10.5 as though it were also a Lender hereunderhereunder (provided that no Participant shall be entitled to any greater amount pursuant to such Sections than the originating Lender would have been entitled to receive if no such participation had been sold), and if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, the each Participant shall be deemed to have the right of set-off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement.
(de) Notwithstanding any other provision in this Agreement, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement and any Note held by it in favor of any Federal Reserve Bank in accordance with Regulation A of the FRB or U.S. Treasury Regulation 31 CFR (S)203.14Bank, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable lawApplicable Law.
Appears in 1 contract
Samples: Bridge Credit Agreement (Lance Inc)
Assignments, Participations, etc. (a) Any Lender may, with the written consent of Culligan, the Administrative Agent, the Issuing Lender Agent and the Swing Line Lender (Borrower, which consents consent shall not be unreasonably withheldwithheld (except Borrower’s consent shall not be required if (i) a Default or an Event of Default exists and is continuing, and (ii) the Eligible Assignee is not engaged in the securities brokerage business or the investment advisory business), at any time assign and delegate to one or more Eligible Assignees (provided that no written consent of Culligan, the Administrative Agent, the Issuing Lender or the Swing Line Lender Agent shall be required in connection with any assignment and delegation by a Lender to an Eligible Assignee that is an Affiliate of such Lender (so long as such assignment will not result in any increased costs to the Borrowers) or to another Lender) (each an "“Assignee"”) all all, or any ratable part of all, of the Loans, the CommitmentCommitments, the L/C Obligations and the other rights and obligations of such Lender hereunder, in a minimum Dollar Equivalent amount of U.S. $5,000,000 or10,000,000; provided, if lesshowever, that the Borrower and, the entire amount of the Loans, Commitment, L/C Obligations and other rights and obligations of such Lender hereunder; provided that (i) the Borrowers and the Administrative Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (xA) written notice of such assignment, together with payment instructions, addresses and related information with respect to the Assignee, shall have been given to Culligan the Borrower and the Administrative Agent by such Lender and the Assignee; (yB) such Lender and the its Assignee shall have delivered to the Borrowers Borrower and the Administrative Agent an Assignment and Acceptance in the form of Exhibit H F ("“Assignment and Acceptance"”) together with any Note or Notes subject to such assignment; and (zC) such the assignor Lender or the Assignee shall have has paid to the Administrative Agent a processing fee in the amount of U.S. $3,000; and (ii) concurrently with such assignment, the assignor Lender shall assign to the Assignee a proportionate share of its loans, commitment and other rights and obligations under the Long-Term Credit Agreement3,500.
(b) From and after the date that the Administrative Agent notifies the assignor Lender and the Borrower that it has received (and, to the extent required, provided its consent and received the consents of Culligan, the Issuing Lender and the Swing Line Lender Borrower and the Agent have provided their consent with respect to) an executed Assignment and Acceptance and payment of the above-referenced processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it and obligations hereunder have been assumed by it pursuant to such Assignment and Acceptance, shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assignor Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under the Loan Documents.
(c) Any Lender may at any time sell Within five Business Days after its receipt of notice by the Agent that it has received an executed Assignment and Acceptance and payment of the processing fee (and provided that it consents to one or more commercial banks or other Persons not Affiliates of Culligan (a "Participant") participating interests such assignment in any Loanaccordance with subsection 10.8(a)), the Commitment of such Lender Borrower shall execute and the other interests of such Lender (the "originating Lender") hereunder and under the other Loan Documents; provided, however, that (i) the originating Lender's obligations under this Agreement shall remain unchanged, (ii) the originating Lender shall remain solely responsible for the performance of such obligations, (iii) the Borrowers, the Issuing Lender, the Swing Line Lender and the Administrative Agent shall continue to deal solely and directly with the originating Lender in connection with the originating Lender's rights and obligations under this Agreement and the other Loan Documents, and (iv) no Lender shall transfer or grant any participating interest under which the Participant has rights to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except deliver to the extent Agent, new Notes evidencing such amendmentAssignee’s assigned Loans and Commitment and, consent or waiver would require unanimous consent of the Lenders as described in the first proviso to Section 12.
1. In the case of any such participation, the Participant shall be entitled to the benefit of Sections 4.1, 4.3, 4.4, 4.6 and 12.5 as though it were also a Lender hereunder, and if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, the Participant shall be deemed to have the right of set-off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as assignor Lender has retained a Lender under this Agreement.
(d) Notwithstanding any other provision in this Agreement, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under Loans and interest its Commitment, replacement Notes in this Agreement and any Note the principal amount of the Commitment retained by the assignor Lender (such Notes to be in exchange for, but not in payment of, the Notes held by it in favor of any Federal Reserve Bank in accordance with Regulation A of the FRB or U.S. Treasury Regulation 31 CFR (S)203.14, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law.such
Appears in 1 contract
Assignments, Participations, etc. (a) Any Lender may, with the may upon written consent of Culligan, the Administrative Agent, the Issuing Lender and the Swing Line Lender (Borrower, which consents consent shall not be unreasonably withheldwithheld (provided at any time that an Event of Default has occurred and is continuing, no approval from the Company shall be required), at any time time, assign and delegate to one or more Eligible Assignees (provided that no written consent of Culligan, the Administrative Agent, Agent or the Issuing Lender or the Swing Line Lender shall be required in connection with any assignment and delegation by a the Lender to an Eligible Assignee that is an Affiliate of such Lender (so long as such assignment will not result in any increased costs to the Borrowers) or to another Lender) (each an "Assignee") all all, or any ratable part of all in a minimum commitment amount at least equal to $5,000,000 or in $1,000,000 increments in excess thereof, of the Loans, the CommitmentCommitments, the L/C Obligations and the other rights and obligations of such Lender hereunder; provided, in a minimum Dollar Equivalent amount of U.S. $5,000,000 orhowever, if less, that the entire amount of the Loans, Commitment, L/C Obligations and other rights and obligations of such Lender hereunder; provided that (i) the Borrowers Company and the Administrative Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (xi) written notice of such assignment, together with payment instructions, addresses and related information with respect to the Assignee, shall have been given to Culligan the Company and the Administrative Agent by such Lender and the Assignee; (yii) such Lender and the its Assignee shall have delivered to the Borrowers Company and the Administrative Agent an Assignment and Acceptance in the form of Exhibit H D ("Assignment and Acceptance") together with any Note or Notes subject to such assignment; assignment and (ziii) such the assignor Lender or the Assignee shall have has paid to the Administrative Agent a processing fee in the amount of U.S. $3,000; and (ii) concurrently with such assignment, the assignor Lender shall assign to the Assignee a proportionate share of its loans, commitment and other rights and obligations under the Long-Term Credit Agreement3,000.00.
(b) From and after the date that the Administrative Agent notifies the assignor Lender that it has received (and, to the extent required, provided its consent and received the consents of Culligan, the Issuing Lender and the Swing Line Lender with respect to) an executed Assignment and Acceptance and payment of the above-referenced processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it and obligations hereunder have been assumed by it pursuant to such Assignment and Acceptance, shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assignor Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under the Loan Documents.
(c) Within five (5) Business Days after its receipt of notice by the Administrative Agent that it has received an executed Assignment and Acceptance and payment of the processing fee, (and provided that it consents to such assignment in accordance with Subsection 11.08(a)) the Company shall execute and deliver to the Administrative Agent, new Notes evidencing such Assignee's assigned Loans and Commitment and, if the assignor Lender has retained a portion of its Loans and its Commitment, replacement Notes in the principal amount of the Loans retained by the assignor Lender (such Notes to be in exchange for, but not in payment of, the Notes held by such Lender, which shall be cancelled upon receipt of the new or replacement Notes). Immediately upon each Assignee's making its processing fee payment under the Assignment and Acceptance, this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitments of the assigning Lender pro tanto.
(d) Any Lender may at any time sell to one or more commercial banks Lenders or other Persons not Affiliates of Culligan the Company (a "Participant") participating interests in any LoanLoans, the Commitment of such that Lender and the other interests of such that Lender (the "originating Originating Lender") hereunder and under the other Loan Documents; provided, however, that (i) the originating Lender's obligations under this Agreement shall remain unchanged, the originating Lender shall remain a Lender for all purposes hereof and the other Loan Documents to which such originating Lender is a party, and the Participant may not become a Lender for purposes hereof or for any other of the Loan Documents, (ii) the originating Lender shall remain solely responsible for the performance of such obligations, (iii) the Borrowers, the Issuing Lender, the Swing Line Lender Company and the Administrative Agent shall continue to deal solely and directly with the originating Lender in connection with the originating Lender's rights and obligations under this Agreement and the other Loan Documents, and (iv) no Lender shall transfer or grant any participating interest under which the Participant has rights to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment, consent or waiver would require unanimous consent of the Lenders as described in the first proviso to Section 12.
1Lenders. In the case of any such participation, the Participant shall be entitled to not have any rights under this Agreement, or any of the benefit other Loan Documents (the Participant's rights against the granting Lender in respect of Sections 4.1, 4.3, 4.4, 4.6 and 12.5 as though it were also a Lender hereundersuch participation being those set forth in the agreement creating or evidencing such participation with such Lender), and all amounts payable by the Company hereunder shall be determined as if such Lender had not sold such participation; except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, the each Participant shall be deemed to have the right of set-off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement.
(de) Each Lender agrees to take normal and reasonable precautions and exercise due care to maintain the confidentiality of all information identified as "confidential" or "secret" by the Company and provided to it by the Company or any of its Subsidiaries, or by the Administrative Agent on such Company's or Subsidiary's behalf, under or in connection with this Agreement or any other Loan Document, and neither it nor any of its Affiliates shall use any such information other than in connection with or in enforcement of this Agreement and the other Loan Documents; except to the extent such information (i) was or becomes generally available to the public other than as a result of disclosure by any Lender or the Administrative Agent, or (ii) was or becomes available on a non-confidential basis from a source other than the Company, provided that such source is not bound by a confidentiality agreement with the Company known to the Lender; provided, however, that any Lender may disclose such information (A) at the request or pursuant to any requirement of any Governmental Authority to which the Lender is subject or in connection with an examination of such Lender by any such authority; (B) pursuant to subpoena or other court process; (C) when required to do so in accordance with the provisions of any applicable Requirement of Law; (D) to the extent reasonably required in connection with any litigation or proceeding to which the Administrative Agent, any Lender or their respective Affiliates may be party; (E) to the extent reasonably required in connection with the exercise of any remedy hereunder or under any other Loan Document; (F) to such Lender's independent auditors and other professional advisors; (G) to any Affiliate of such Lender, or to any Participant or Assignee, actual or potential, provided that such Affiliate, Participant or Assignee agrees to keep such information confidential to the same extent required of the Lenders hereunder, and (H) as to any Lender, as expressly permitted under the terms of any other document or agreement regarding confidentiality to which the Company is party or is deemed party with such Lender.
(f) Notwithstanding any other provision in this Agreement, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement and any Note the Notes held by it in favor of any Federal Reserve Bank Lender in accordance with Regulation A of the FRB or U.S. Treasury Regulation 31 CFR (S)203.14§203.14, and such Federal Reserve Bank Lender may enforce such pledge or security interest in any manner permitted under applicable law.
Appears in 1 contract
Assignments, Participations, etc. (a) Any Lender may, with the written consent of Culligan, the Administrative Borrowers (at all times other than during the existence of an Event of Default) and Agent, the Issuing Lender and the Swing Line Lender (which consents shall not be unreasonably withheld), at any time assign and delegate to one or more Eligible Assignees (provided that no written consent of Culligan, the Administrative Agent, the Issuing Lender Agent or the Swing Line Lender Borrowers shall be required in connection with any assignment and delegation by a Lender to an Eligible Assignee that is an Affiliate of such Lender (so long as such assignment will not result in any increased costs to the Borrowers) or to another Lender) (each an "Assignee") all all, or any ratable part of all, of the Loans, the Commitment, the L/C Obligations Commitments and the other rights and obligations of such Lender hereunder, in a minimum Dollar Equivalent amount equal to the lesser of U.S. $5,000,000 or, if less, the entire amount of the Loans, Commitment, L/C Obligations and other rights and obligations of such Lender hereunder; provided that (i) $5,000,000 or (ii) the remaining amount of such Lender's Commitments; provided, however, that Borrowers and the Administrative Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (xi) written notice of such assignment, together with payment instructions, addresses and related information with respect to the Assignee, shall have been given to Culligan Borrowers and the Administrative Agent by such Lender and the Assignee; (yii) such Lender and the its Assignee shall have delivered to the Borrowers and the Administrative Agent an Assignment and Acceptance in the form of Exhibit H F ("Assignment and Acceptance") ), together with any Note or Notes subject to such assignment; , and (ziii) such the assignor Lender or the Assignee shall have has paid to the Administrative Agent a processing fee in the amount of U.S. $3,000; and (ii) concurrently with such assignment, the assignor Lender shall assign to the Assignee a proportionate share of its loans, commitment and other rights and obligations under the Long-Term Credit Agreement2,500.
(b) From and after the date that the Administrative Agent notifies the assignor Lender that it has received (and, to the extent required, and provided its consent and received the consents of Culligan, the Issuing Lender and the Swing Line Lender with respect to) an executed Assignment and Acceptance and payment of the above-referenced processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it and obligations hereunder have been assumed by it pursuant to such Assignment and Acceptance, shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assignor Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under the Loan Documents.
(c) Within five Business Days after its receipt of notice by the Agent that it has received an executed Assignment and Acceptance and payment of the processing fee, Borrowers shall execute and deliver to the Agent, new Notes evidencing such Assignee's assigned Loans and Commitment and, if the assignor Lender has retained a portion of its Loans and its Commitment, replacement Notes in the principal amount of the Loans retained by the assignor Lender (such Notes to be in exchange for, but not in payment of, the Notes held by such Lender). Immediately upon each Assignee's making its processing fee payment under the Assignment and Acceptance, this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitments of the assigning Lender pro tanto.
(d) Any Lender may at any time sell to one or more commercial banks Lenders or other Persons not Affiliates of Culligan Borrowers (a "Participant") participating interests in any LoanLoans, the Commitment of such that Lender and the other interests of such that Lender (the "originating Lender") hereunder and under the other Loan Documents; provided, however, that (i) the originating Lender's obligations under this Agreement shall remain unchanged, (ii) the originating Lender shall remain solely responsible for the performance of such obligations, (iii) the Borrowers, the Issuing Lender, the Swing Line Lender and the Administrative Agent shall continue to deal solely and directly with the originating Lender in connection with the originating Lender's rights and obligations under this Agreement and the other Loan Documents, and (iv) no Lender shall transfer or grant any participating interest under which the Participant has rights to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment, consent or waiver would require unanimous consent of the Lenders as described in the first proviso to Section 12.
1. In the case of any such participation, the Participant shall be entitled to the benefit of Sections 4.1, 4.3, 4.4, 4.6 and 12.5 as though it were also a Lender hereunder, and if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, the Participant shall be deemed to have the right of set-off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement.
(d) Notwithstanding any other provision in this Agreement, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement and any Note held by it in favor of any Federal Reserve Bank in accordance with Regulation A of the FRB or U.S. Treasury Regulation 31 CFR (S)203.14, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law.)
Appears in 1 contract
Samples: Credit Agreement (Specialty Equipment Companies Inc)
Assignments, Participations, etc. (a1) Any Lender may, with With the prior written consent of Culliganthe Administrative Agent and, but only if there has not occurred and is continuing an Event of Default or Potential Default, the Administrative AgentCompany, the Issuing Lender and the Swing Line Lender (which such consents shall not to be unreasonably withheld), any Lender may at any time assign and delegate to one or more Eligible Assignees (provided that no written consent of Culligan, the Company or the Administrative Agent, the Issuing Lender or the Swing Line Lender Agent shall be required in connection with any assignment and delegation by a Lender to an Eligible Assignee that is an Affiliate of such Lender (so long as such assignment will not result in any increased costs to the Borrowers) or to another Lender) (each an "“Assignee"”) all or any part of the Loans, the Commitment, the L/C Obligations such Lender’s Commitment and Revolving Loans and the other rights and obligations of such Lender hereunder, in a minimum Dollar Equivalent amount of U.S. $5,000,000 or5,000,000.00 (or if such Lender’s Revolving Credit Commitment is less than $5,000,000.00, if lessone hundred percent (100%) thereof); provided, however, that the entire amount of the Loans, Commitment, L/C Obligations and other rights and obligations of such Lender hereunder; provided that (i) the Borrowers Company and the Administrative Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (xi) written notice of such assignment, together with payment instructions, addresses and related information with respect to the Assignee, shall have been given to Culligan the Company and the Administrative Agent by such Lender and the Assignee; (yii) such Lender and the its Assignee shall have delivered to the Borrowers Company and the Administrative Agent an Assignment and Acceptance in the form of Exhibit H ("Assignment and Acceptance") together with any Note or Notes subject to such assignment; Agreement and (ziii) such Lender or the Assignee shall have has paid to the Administrative Agent a processing fee in the amount of U.S. $3,000; and (ii) concurrently with such assignment, the assignor Lender shall assign to the Assignee a proportionate share of its loans, commitment and other rights and obligations under the Long-Term Credit Agreement3,500.00.
(b2) From and after the date that the Administrative Agent notifies the assignor Lender that it has received (and, to the extent required, provided its consent and received the consents of Culligan, the Issuing Lender and the Swing Line Lender with respect to) an executed Assignment and Acceptance and payment of the above-referenced processing fee, : (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned to it and obligations hereunder have been assumed by it pursuant to such Assignment and AcceptanceAcceptance Agreement, shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assignor Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and AcceptanceAcceptance Agreement, relinquish its rights and be released from its obligations under the Loan Documents.
(c3) Within five Business Days after its receipt of notice by the Administrative Agent that it has received an executed Assignment and Acceptance Agreement, which notice shall also be sent by the Administrative Agent to each Lender, and payment of the processing fee, the Company shall, if requested by the Assignee, execute and deliver to the Administrative Agent, new Notes evidencing such Assignee’s assigned Revolving Loans and Revolving Loan funding commitment. Immediately upon each Assignee’s making its processing fee payment under the Assignment and Acceptance Agreement, this Credit Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Percentage Shares resulting therefrom and the Administrative Agent shall deliver to the Company a revised Commitment Schedule reflecting such adjustment.
(4) Any Lender may at any time sell to one or more commercial banks or other Persons not Affiliates of Culligan the Company (a "“Participant"”) participating interests in any LoanRevolving Loans, the Commitment funding commitment of such that Lender and the other interests of such that Lender (the "“originating Lender"”) hereunder and under the other Loan Documents; provided, however, that (i) the originating Lender's ’s obligations under this Credit Agreement shall remain unchanged, (ii) the originating Lender shall remain solely responsible for the performance of such obligations, (iii) the Borrowers, the Issuing Lender, the Swing Line Lender Company and the Administrative Agent shall continue to deal solely and directly with the originating Lender in connection with the originating Lender's ’s rights and obligations under this Credit Agreement and the other Loan Documents, and (iv) no Lender shall transfer or grant any participating interest under which the Participant has rights to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment, consent or waiver would require unanimous consent of the Lenders as described in the first proviso to Section 12.
1. In the case of any such participation, the Participant shall be entitled to the benefit of Sections 4.1Paragraphs 2(e), 4.3, 4.4, 4.6 2(f) and 12.5 2(g) (and subject to the burdens of Paragraphs 2(h) and 11(h) above) as though it were also a Lender hereunderthereunder, and if amounts outstanding under this Credit Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, the each Participant shall be deemed to have the right of set-off in respect of its participating interest in amounts owing under this Credit Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Credit Agreement, and Paragraph 11(j) of this Credit Agreement shall apply to such Participant as if it were a Lender party hereto.
(d5) Notwithstanding any other provision contained in this AgreementCredit Agreement or any other Loan Document to the contrary, any Lender may at any time create a security interest in, or pledge, assign all or any portion of its rights under and interest in this Agreement and any Note the Revolving Loans or Notes held by it in favor of to any Federal Reserve Bank in accordance with Lender or the United States Treasury as collateral security pursuant to Regulation A of the FRB or U.S. Treasury Regulation 31 CFR (S)203.14, Board of Governors of the Federal Reserve System and any Operating Circular issued by such Federal Reserve Bank may enforce Lender, provided that any payment in respect of such pledge assigned Revolving Loans or security interest Notes made by the Company to or for the account of the assigning and/or pledging Lender in any manner permitted under applicable lawaccordance with the terms of this Credit Agreement shall satisfy the Company’s obligations hereunder in respect to such assigned Revolving Loans or Notes to the extent of such payment. No such assignment shall release the assigning Lender from its obligations hereunder.
Appears in 1 contract
Assignments, Participations, etc. (a) Any Lender mayThe provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns permitted hereby, with except that (i) neither the Borrower nor the Guarantor may assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of Culliganeach Lender (and any attempted assignment or transfer by the Borrower or the Guarantor without such consent shall be null and void) and (ii) no Lender may assign or otherwise transfer its rights or obligations hereunder except in accordance with this Section. Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby, Participants (to the extent provided in paragraph (e) of this Section) and, to the extent expressly contemplated hereby, the Affiliates of each of the Administrative Agent and the Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement.
(i) Subject to the conditions set forth in paragraph (b)(ii) below, any Lender may assign to one or more assignees (each an “Assignee”) all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitment and the Loans at the time owing to it) with the prior written consent (such consent not to be unreasonably withheld) of:
(A) the Borrower, provided that no consent of the Borrower shall be required for an assignment to a Lender, a Lender Affiliate or, if an Event of Default has occurred and is continuing, any other assignee, and
(B) the Administrative Agent, provided that no consent of the Issuing Administrative Agent shall be required for an assignment to a Lender Affiliate.
(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 assignment of the entire remaining amount of the assigning Lender’s Commitment or Loans, the amount of the Commitment or Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Acceptance with respect to such assignment is delivered to the Swing Line Lender (which consents Administrative Agent) shall not be unreasonably withheld), at any time assign and delegate to one or more Eligible Assignees (provided that no written consent of Culligan, the Administrative Agent, the Issuing Lender or the Swing Line Lender shall be required in connection with any assignment and delegation by a Lender to an Eligible Assignee that is an Affiliate of such Lender (so long as such assignment will not result in any increased costs to the Borrowers) or to another Lender) (less than US$5,000,000 unless each an "Assignee") all or any part of the Loans, the Commitment, the L/C Obligations and the other rights and obligations of such Lender hereunder, in a minimum Dollar Equivalent amount of U.S. $5,000,000 or, if less, the entire amount of the Loans, Commitment, L/C Obligations and other rights and obligations of such Lender hereunder; provided that (i) the Borrowers Borrower and the Administrative Agent may continue to deal solely otherwise consent; provided, that no such consent of the Borrower shall be required if an Event of Default has occurred and directly with such Lender in connection with is continuing;
(B) each partial assignment shall be made as an assignment of a proportionate part of all the interest so assigned to an assigning Lender’s rights and obligations under this Agreement;
(C) the Assignee until (x) written notice of such assignment, together with payment instructions, addresses and related information with respect to the Assignee, shall have been given to Culligan and the Administrative Agent by such Lender Assignor in respect of each assignment shall execute and the Assignee; (y) such Lender and the Assignee shall have delivered deliver to the Borrowers and the Administrative Agent an Assignment and Acceptance in the form of Exhibit H ("Assignment and Acceptance") , together with any Note or Notes subject to such assignment; a processing and recordation fee of US$3,500;
(zD) such Lender or the Assignee Assignee, if it shall have paid not be a Lender, shall deliver to the Administrative Agent a processing fee in the amount Administrative Questionnaire. Subject to acceptance and recording thereof pursuant to paragraph (d) of U.S. $3,000; and (ii) concurrently with such assignmentthis Section, the assignor Lender shall assign to the Assignee a proportionate share of its loans, commitment and other rights and obligations under the Long-Term Credit Agreement.
(b) From from and after the effective date that the Administrative Agent notifies the assignor Lender that it has received (and, to the extent required, provided its consent and received the consents of Culligan, the Issuing Lender and the Swing Line Lender with respect to) an executed specified in each Assignment and Acceptance and payment of the above-referenced processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights hereunder have been of the interest assigned to it and obligations hereunder have been assumed by it pursuant to such Assignment and Acceptance, shall have the rights and obligations of a Lender under the Loan Documentsthis Agreement, and (ii) the assignor assigning Lender thereunder shall, to the extent that rights and obligations hereunder and under of the other Loan Documents have been interest assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under this Agreement (and, in the Loan Documentscase of an Assignment and Acceptance 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 3.05, 3.08, 3.09, 3.10, 3.11 and 11.05) (but only to the extent such Lender notifies the Borrower of any claim under such Section within 90 days after it obtains knowledge thereof). Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this paragraph 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 (e) of this Section; and
(E) the Assignee will be a Canadian Resident Lender at the time that any amount is first paid or credited to or by such Assignee on account of the Obligations; provided that such Assignee will not be required to be a Canadian Resident Lender at such time if it is unable to so qualify as a Canadian Resident Lender as the result of any Change in Law; provided that for purposes of this clause (E), references in the defined term “Change in Law” to the “date of this Agreement” shall be deemed to be references to the “effective date of the Assignment and Acceptance pursuant to which such Assignee becomes a party to this Agreement”.
(c) The Administrative Agent, acting for this purpose as an agent of the Borrower, shall maintain at one of its offices in the United States a copy of each Assignment and Acceptance delivered to it and a register for the recordation of the names and addresses of the Lenders, and the Commitment of, and principal amount of the Loans owing to, each Lender pursuant to the terms hereof from time to time (the “Register”). The entries in the Register shall be conclusive, and the Borrower, the Administrative Agent and the Lenders may treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available for inspection by the Borrower, and any Lender at any reasonable time and from time to time upon reasonable prior notice.
(d) Upon its receipt of a duly completed Assignment and Acceptance executed by an assigning Lender and an Assignee, the Assignee’s completed Administrative Questionnaires (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 required by paragraph (b) of this Section, the Administrative Agent shall accept such Assignment and Acceptance and record the information contained therein in the Register. No assignment shall be effective for purposes of this Agreement unless it has been recorded in the Register as provided in this paragraph.
(e) Any Lender may at any time may, without the consent of the Borrower, the Guarantor or the Administrative Agent, sell participations to one or more commercial banks or other Persons not Affiliates of Culligan entities (each a "“Participant"”) participating interests in any Loan, the Commitment all or a portion of such Lender Lender’s rights and obligations under this Agreement (including all or a portion of its Commitment and the other interests of such Lender (the "originating Lender") hereunder and under the other Loan DocumentsLoans owing to it); provided, however, provided that (i) the originating such Lender's ’s obligations under this Agreement shall remain unchanged, (ii) the originating such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, obligations and (iii) the BorrowersBorrower, the Issuing LenderAdministrative Agent, the Swing Line Lender and the Administrative Agent other Lenders shall continue to deal solely and directly with the originating such Lender in connection with the originating such Lender's ’s rights and obligations under this Agreement. Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and the other Loan Documents, and (iv) no Lender shall transfer or grant any participating interest under which the Participant has rights to approve any amendment toamendment, or any consent modification or waiver with respect toof any provision of this Agreement; provided that such agreement or instrument may provide that such Lender will not, this Agreement or any other Loan Document, except to without the extent such amendment, consent or waiver would require unanimous consent of the Lenders as Participant, agree to any amendment, modification or waiver described in the first proviso to Section 12.
111.02 that affects such Participant. In the case Subject to paragraph (f) of any such participationthis Section, the Borrower agrees that each Participant shall be entitled to the benefit benefits of Sections 4.13.05, 4.33.06, 4.43.08, 4.6 3.09 and 12.5 as though it were also a Lender hereunder, and if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, the Participant shall be deemed to have the right of set-off in respect of its participating interest in amounts owing under this Agreement 3.10 to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of this Section. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 11.06 as though it were a Lender, provided such Participant agrees to be subject to Section 3.06 as though it were a Lender. Notwithstanding anything in this paragraph to the contrary, any bank that is a member of the Farm Credit System that (a) has purchased a participation in the minimum amount of its participating interest US$10,000,000 on or after the Effective Date, (b) is, by written notice to the Borrower and the Administrative Agent (“Voting Participant Notification”), designated by the selling Lender as being entitled to be accorded the rights of a Voting Participant hereunder (any bank that is a member of the Farm Credit System so designated being called a “Voting Participant”) and (c) receives the prior written consent of the Borrower and the Administrative Agent to become a Voting Participant, shall be entitled to vote (and the voting rights of the selling Lender shall be correspondingly reduced), on a dollar for dollar basis, as if such participant were owing directly to it as a Lender, on any matter requiring or allowing a Lender under to provide or withhold its consent, or to otherwise vote on any proposed action. To be effective, each Voting Participant Notification shall, with respect to any Voting Participant, (i) state the full name, as well as all contact information required of an Assignee as set forth in Exhibit 11.08 hereto and (ii) state the dollar amount of the participation purchased. The Borrower and the Administrative Agent shall be entitled to conclusively rely on information contained in notices delivered pursuant to this Agreementparagraph.
(df) Notwithstanding A Participant shall not be entitled to receive any other provision greater payment under Section 3.05, 3.08, 3.09 or 3.10 than the applicable Lender would have been entitled to receive with respect to the participation sold to such Participant, unless the sale of the participation to such Participant is made with the Borrower’s prior written consent. A Participant shall not be entitled to the benefits of Section 3.05 unless the Borrower is notified of the participation sold to such Participant and such Participant agrees, for the benefit of the Borrower, to comply with Section 3.05(f) as though it were a Lender. A Participant shall not be entitled to the benefits of Section 3.05 unless such Participant would qualify as a Canadian Resident Lender if it were a Lender at the time any amount is first paid or credited to or by such participant on account of the Obligations; provided that such Participant will be entitled to the benefits of Section 3.05 if it is unable to qualify as a Canadian Resident Lender as the result of any Change in Law; provided that for purposes of this paragraph (f), references in the defined term “Change in Law” to the “date of this Agreement, any ” shall be deemed to be references to the “effective date of the sale of the participation to such Participant”.
(g) Any Lender may at any time create pledge or assign a security interest in, or pledge, in all or any portion of its rights under and interest in this Agreement and any Note held by it in favor to secure obligations of any such Lender to (i) a Federal Reserve Bank in accordance with Regulation A of or (ii) the FRB Farm Credit Funding Corp. or U.S. Treasury Regulation 31 CFR (S)203.14to any other entity organized under the Farm Credit Act, as amended, and such Federal Reserve Bank may enforce this Section shall not apply to any such pledge or assignment of a security interest; provided that no such pledge or assignment of a security interest in shall release a Lender from any manner permitted under applicable lawof its obligations hereunder or substitute any such pledgee or Assignee for such Lender as a party hereto.
Appears in 1 contract
Assignments, Participations, etc. (a) Any Lender may, with the written consent of Culligan, the Administrative Borrower (other than during the existence of a Default or Event of Default in which event the Borrower's consent shall not be required) and the Agent, the Issuing Lender and the Swing Line Lender (which consents consent, in each case, shall not be unreasonably withheldwithheld (which consent of the Borrower and the Agent shall not be required if the Eligible Assignee is an Affiliate of such Lender or is another Lender), provided that such assignment shall not result in increased costs to the Borrower pursuant to Section 2.11, at any time assign and delegate to one or more Eligible Assignees (provided that no written consent of Culligan, the Administrative Agent, the Issuing Lender or the Swing Line Lender shall be required in connection with any assignment and delegation by a Lender to an Eligible Assignee that is an Affiliate of such Lender (so long as such assignment will not result in any increased costs to the Borrowers) or to another Lender) (each an "Assignee") all all, or any ratable part of all, of the LoansRevolving Loan Notes, the Commitment, the L/C Obligations and the other rights and obligations of such Lender hereunder. In the event of a partial assignment (other than to another Lender or an Affiliate of a Lender), such assignment shall be in a minimum Dollar Equivalent amount of U.S. not less than $5,000,000 orand, if lessafter giving effect to such assignment, the entire amount assigning Lender's or selling Lender's Proportionate Share of the Loans, Commitment, Revolving Loan Notes and L/C Obligations and other rights and obligations of such Lender hereunder; provided shall equal an amount that (i) it not less than $10,000,000, in each case, unless otherwise agreed in writing by the Borrowers Borrower and the Administrative Agent; provided, however, that the Borrower and the Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (xi) written notice of such assignment, together with payment instructions, addresses and related information with respect to the Assignee, shall have been given to Culligan the Borrower and the Administrative Agent by such Lender and the Assignee; (yii) such Lender and the its Assignee shall have delivered to the Borrowers Borrower and the Administrative Agent an Assignment and Acceptance in the form of Exhibit H G ("Assignment and Acceptance") together with any Revolving Loan Note or Notes subject to such assignment; and (ziii) such the assignor Lender or the Assignee shall have has paid to the Administrative Agent a processing fee in the amount of U.S. $3,000; and (ii) concurrently with such assignment, the assignor Lender shall assign to the Assignee a proportionate share of its loans, commitment and other rights and obligations under the Long-Term Credit Agreement4,000.
(b) From and after the date that the Administrative Agent notifies the assignor assigning Lender that it has received (and, to the extent required, provided its consent and received the consents of Culligan, the Issuing Lender and the Swing Line Lender with respect to) an executed Assignment and Acceptance and payment of the above-referenced processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it and obligations hereunder have been assumed by it pursuant to such Assignment and Acceptance, shall have the rights and obligations of a Lender under the Loan Transaction Documents, and (ii) the assignor Lender shall, to the extent that rights and obligations hereunder and under the other Loan Transaction Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under the Loan Transaction Documents.
(c) Within five (5) Business Days after its receipt of notice by the Agent that it has received an executed Assignment and Acceptance and payment of the processing fee, the Borrower shall execute and deliver to the Agent, a new Revolving Loan Note evidencing such Assignee's assigned Proportionate Share of the related Loans and, if the assignor Lender has retained a portion thereof, a replacement Revolving Loan Note in the principal amount of the Proportionate Share of the Revolving Loans retained by the assignor Lender (such Revolving Loan Note to be in exchange for, but not in payment of, the Revolving Loan Note held by such Lender). Immediately upon each Assignee's making its processing fee payment under the Assignment and Acceptance, this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the adjustment of the Proportionate Share of the Revolving Loans.
(d) Any Lender may at any time sell to one or more commercial banks or other Persons not Affiliates affiliates of Culligan the Borrower (a "Participant") participating interests in any Loanthe Revolving Loans, the Commitment of such Lender L/C Obligations and the other interests of such that Lender (the "originating Originating Lender") hereunder and under the other Loan Transaction Documents; provided, however, that (i) the originating Originating Lender's obligations under this Agreement shall remain unchanged, (ii) the originating Originating Lender shall remain solely responsible for the performance of such obligations, (iii) the Borrowers, the Issuing Lender, the Swing Line Lender Borrower and the Administrative Agent shall continue to deal solely and directly with the originating Originating Lender in connection with the originating Originating Lender's rights and obligations under this Agreement and the other Loan Documents, Transaction Documents and (iv) no Lender shall transfer or grant any participating interest under which the Participant has shall have rights to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except Transaction Documents other than those that pursuant to the extent such amendment, consent or waiver would terms of this Agreement require unanimous the consent of the Lenders as described in the first proviso to Section 12.
1. In the case of any such participationaffected Lender; and provided further that, and it is hereby agreed that, the Participant Borrower shall not be entitled obligated to the benefit make any greater payment or otherwise incur any greater cost or liability under Section 2.11 than had no such sale of Sections 4.1, 4.3, 4.4, 4.6 and 12.5 as though it were also a Lender hereunder, and if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, the Participant shall be deemed to have the right of set-off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreementoccurred.
(d) Notwithstanding any other provision in this Agreement, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement and any Note held by it in favor of any Federal Reserve Bank in accordance with Regulation A of the FRB or U.S. Treasury Regulation 31 CFR (S)203.14, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law.
Appears in 1 contract
Assignments, Participations, etc. (a1) Any Lender may, with With the prior written consent of Culligan, the Administrative AgentAgent and, the Issuing Lender but only if there has not occurred and the Swing Line Lender (which is continuing an Event of Default or Potential Default, MAC, such consents shall not to be unreasonably withheld)withheld or delayed, any Lender may at any time assign and delegate to one or more Eligible Assignees (provided that no written consent of Culligan, MAC or the Administrative Agent, the Issuing Lender or the Swing Line Lender Agent shall be required in connection with any assignment and delegation by a Lender to an Eligible Assignee that is an Affiliate of such Lender (so long as such assignment will not result in any increased costs to the Borrowers) or to another LenderLender or its Affiliate) (each an "“Assignee"”) all or any part of such Lender’s rights and obligations under this Agreement (including all or a portion of its Percentage Share of the Loans, Term Loan at the Commitment, the L/C Obligations time owing to it) and the other rights and obligations of Obligations held by such Lender hereunder, in a minimum Dollar Equivalent amount of U.S. $5,000,000 or(or (A) if such Assignee is another Lender or an Affiliate of a Lender, $1,000,000; and (B) if lesssuch Lender’s Percentage Share of the Term Loan is less than $5,000,000, one hundred percent (100%) thereof); provided, however, that MAC, the entire amount of the Loans, Commitment, L/C Obligations and other rights and obligations of such Lender hereunder; provided that (i) the Borrowers Borrower and the Administrative Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (xi) written notice of such assignment, together with payment instructions, addresses and related information with respect to the Assignee, shall have been given to Culligan the Borrower and the Administrative Agent by such Lender and the Assignee; (yii) such Lender and the its Assignee shall have delivered to the Borrowers Borrower and the Administrative Agent an Assignment and Acceptance in the form of Exhibit H ("Assignment and Acceptance") together with any Note or Notes subject to such assignment; Agreement and (ziii) such Lender or the Assignee shall have has paid to the Administrative Agent a processing fee in the amount of U.S. $3,000; and (ii) concurrently with such assignment, the assignor Lender shall assign to the Assignee a proportionate share of its loans, commitment and other rights and obligations under the Long-Term Credit Agreement3,500.
(bA) From and after the date that the Administrative Agent notifies the assignor Lender and the Borrower that it has received (and, to the extent required, provided its consent and received the consents of Culligan, the Issuing Lender and the Swing Line Lender with respect to) an executed Assignment and Acceptance Agreement and payment of the above-referenced processing fee, : (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned to it and obligations hereunder have been assumed by it pursuant to such Assignment and AcceptanceAcceptance Agreement, shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assignor Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and AcceptanceAcceptance Agreement, relinquish its rights and be released from its obligations under the Loan DocumentsDocuments (but shall be entitled to indemnification as otherwise provided in this Agreement with respect to any events occurring prior to the assignment) and (iii) this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Percentage Shares resulting therefrom.
(c2) Within five Business Days after its receipt of notice by the Administrative Agent that it has received an executed Assignment and Acceptance Agreement and payment of the processing fee (which notice shall also be sent by the Administrative Agent to each Lender), the Borrower shall, if requested by the Assignee, execute and deliver to the Administrative Agent, a new Note evidencing such Assignee’s Percentage Share of the Term Loan.
(3) Any Lender may at any time sell to one or more commercial banks or other Persons not Affiliates of Culligan the Borrower (a "“Participant"”) participating interests in any Loan, the Commitment of such Lender Term Loan and the other interests of such that Lender (the "“originating Lender"”) hereunder and under the other Loan Documents; provided, however, that (i) the originating Lender's ’s obligations under this Agreement shall remain unchanged, (ii) the originating Lender shall remain solely responsible for the performance of such obligations, and (iii) the Borrowers, the Issuing Lender, the Swing Line Lender Borrower and the Administrative Agent shall continue to deal solely and directly with the originating Lender in connection with the originating Lender's ’s rights and obligations under this Agreement and the other Loan Documents, and (iv) no Lender shall transfer or grant any participating interest under which the Participant has rights to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment, consent or waiver would require unanimous consent of the Lenders as described in the first proviso to Section 12.
1. In the case of any such participation, the Participant shall be entitled to the benefit of Sections 4.12.5, 4.3, 4.4, 4.6 2.6 and 12.5 2.7 (and subject to the burdens of Sections 2.8 and 11.8 above) as though it were also a Lender hereunderthereunder, and if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, the each Participant shall be deemed to have the right of set-off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement, and Section 11.10 of this Agreement shall apply to such Participant as if it were a Lender party hereto.
(d4) Notwithstanding any other provision contained in this AgreementAgreement or any other Loan Document to the contrary, any Lender may at any time create a security interest in, or pledge, assign all or any portion of its rights under and interest in this Agreement and any Note Percentage Share of the Term Loan held by it in favor of to any Federal Reserve Bank in accordance with Lender or the United States Treasury as collateral security pursuant to Regulation A of the FRB or U.S. Treasury Regulation 31 CFR (S)203.14, Board of Governors of the Federal Reserve System and any “Operating Circular” issued by such Federal Reserve Bank may enforce Lender; provided that any payment in respect of such pledge assigned Percentage Share of the Term Loan made by the Borrower to or security interest for the account of the assigning and/or pledging Lender in any manner permitted under applicable lawaccordance with the terms of this Agreement shall satisfy the Borrower’s obligations hereunder in respect to such assigned Percentage Share of the Term Loan to the extent of such payment. No such assignment shall release the assigning Lender from its obligations hereunder.
Appears in 1 contract
Assignments, Participations, etc. (a) Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby and, to the extent expressly contemplated hereby, the Affiliates of each of the Administrative Agent and the Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement.
(b) Any Lender maymay assign to one or more assignees (each, with an "Assignee") all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitment and the Loans at the time owing to it); provided that (i) except in the case of an assignment to a Lender or a Lender Affiliate, each of the Borrower and the Administrative Agent must give their prior written consent of Culligan, the Administrative Agent, the Issuing Lender and the Swing Line Lender to such assignment (which consents consent shall not be unreasonably withheld), at any time assign (ii) except in the case of an assignment to a Lender or a Lender Affiliate or an assignment 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 delegate Acceptance with respect to one or more Eligible Assignees (provided that no written consent of Culligan, such assignment is delivered to the Administrative Agent, the Issuing Lender or the Swing Line Lender ) shall not be required in connection with any assignment and delegation by a Lender to an Eligible Assignee that is an Affiliate of such Lender (so long as such assignment will not result in any increased costs to the Borrowers) or to another Lender) (less than $5,000,000 unless each an "Assignee") all or any part of the Loans, the Commitment, the L/C Obligations and the other rights and obligations of such Lender hereunder, in a minimum Dollar Equivalent amount of U.S. $5,000,000 or, if less, the entire amount of the Loans, Commitment, L/C Obligations and other rights and obligations of such Lender hereunder; provided that (i) the Borrowers Borrower and the Administrative Agent may continue otherwise 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, except that this clause (iii) shall not apply to deal solely and directly with such Lender rights in connection with respect of outstanding Bid Loans, (iv) the interest so assigned to an Assignee until (x) written notice of such assignment, together with payment instructions, addresses and related information with respect to the Assignee, shall have been given to Culligan and the Administrative Agent by such Lender Assignor in respect of each assignment shall execute and the Assignee; (y) such Lender and the Assignee shall have delivered deliver to the Borrowers and the Administrative Agent an Assignment and Acceptance in the form of Exhibit H ("Assignment and Acceptance") , together with any Note or Notes subject to such assignment; a processing and recordation fee of $3,500, and (zv) such Lender or the Assignee Assignee, if it shall have paid not be a Lender, shall deliver to the Administrative Agent a processing fee in the amount of U.S. $3,000an Administrative Questionnaire; and provided further that any consent of the Borrower otherwise required under this paragraph shall not be required if an Event of Default under clause (iif) concurrently with such assignmentor (g) of Section 8.01 has occurred and is continuing. Subject to acceptance and recording thereof pursuant to paragraph (d) of this Section, the assignor Lender shall assign to the Assignee a proportionate share of its loans, commitment and other rights and obligations under the Long-Term Credit Agreement.
(b) From from and after the effective date that the Administrative Agent notifies the assignor Lender that it has received (and, to the extent required, provided its consent and received the consents of Culligan, the Issuing Lender and the Swing Line Lender with respect to) an executed specified in each Assignment and Acceptance and payment of the above-referenced processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights hereunder have been of the interest assigned to it and obligations hereunder have been assumed by it pursuant to such Assignment and Acceptance, shall have the rights and obligations of a Lender under the Loan Documentsthis Agreement, and (ii) the assignor assigning Lender thereunder shall, to the extent that rights and obligations hereunder and under of the other Loan Documents have been interest assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under this Agreement (and, in the Loan Documentscase of an Assignment and Acceptance 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 3.05, 3.08, 3.09, 3.10, 3.11 and 10.05)(but only to the extent such Lender notifies the Borrower of any claim under such Section within 90 days after it obtains knowledge thereof). Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this paragraph 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 (e) of this Section.
(c) The Administrative Agent, acting for this purpose as an agent of the Borrower, shall maintain at one of its offices in the United States a copy of each Assignment and Acceptance delivered to it and a register for the recordation of the names and addresses of the Lenders, and the Commitment of, and principal amount of the Loans owing to, each Lender pursuant to the terms hereof from time to time (the "Register"). The entries in the Register shall be conclusive, and the Borrower, the Administrative Agent and the Lenders may treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available for inspection by the Borrower, and any Lender, at any reasonable time and from time to time upon reasonable prior notice.
(d) Upon its receipt of a duly completed Assignment and Acceptance 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) of this Section and any written consent to such assignment required by paragraph (b) of this Section, the Administrative Agent shall accept such Assignment and Acceptance and record the information contained therein in the Register. No assignment shall be effective for purposes of this Agreement unless it has been recorded in the Register as provided in this paragraph.
(e) Any Lender may at any time may, without the consent of the Borrower or the Administrative Agent, sell participations to one or more commercial banks or other Persons not Affiliates of Culligan entities (each a "Participant") participating interests in any Loan, the Commitment all or a portion of such Lender Lender's rights and obligations under this Agreement (including all or a portion of its Commitment and the other interests of such Lender (the "originating Lender") hereunder and under the other Loan DocumentsLoans owing to it); provided, however, provided that (i) the originating such Lender's obligations under this Agreement shall remain unchanged, (ii) the originating such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, obligations and (iii) the BorrowersBorrower, the Issuing Lender, the Swing Line Lender and the Administrative Agent and the other Lenders shall continue to deal solely and directly with the originating such Lender in connection with the originating such Lender's rights and obligations under this Agreement. Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and the other Loan Documents, and (iv) no Lender shall transfer or grant any participating interest under which the Participant has rights to approve any amendment toamendment, or any consent modification or waiver with respect toof any provision of this Agreement; provided that such agreement or instrument may provide that such Lender will not, this Agreement or any other Loan Document, except to without the extent such amendment, consent or waiver would require unanimous consent of the Lenders as Participant, agree to any amendment, modification or waiver described in the first proviso to Section 12.
110.02 that affects such Participant. In the case Subject to paragraph (f) of any such participationthis Section, the Borrower agrees that each Participant shall be entitled to the benefit benefits of Sections 4.13.05 (other than 3.05(f)), 4.33.06, 4.43.08, 4.6 3.09 and 12.5 as though it were also a Lender hereunder, and if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, the Participant shall be deemed to have the right of set-off in respect of its participating interest in amounts owing under this Agreement 3.10 to the same extent as if the amount of its participating interest it were owing directly to it as a Lender under and had acquired its interest by assignment pursuant to paragraph (b) of this AgreementSection. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 10.06 as though it were a Lender, provided such Participant agrees to be subject to Section 3.06 as though it were a Lender.
(df) Notwithstanding A Participant shall not be entitled to receive any other provision in this Agreementgreater payment under Section 3.05, any 3.08, 3.09 or 3.10 than the applicable Lender would have been entitled to receive with respect to the participation sold to such Participant, unless the sale of the participation to such Participant is made with the Borrower's prior written consent. A Participant that would be a Foreign Lender if it were a Lender shall not be entitled to the benefits of Section 3.05 unless the Borrower is notified of the participation sold to such Participant and such Participant agrees, for the benefit of the Borrower, to comply with Section 3.05(f) as though it were a Lender.
(g) Any Lender may at any time create pledge or assign a security interest in, or pledge, in all or any portion of its rights under and interest in this Agreement and any Note held by it in favor to secure obligations of any such Lender to (i) a Federal Reserve Bank in accordance with Regulation A of or (ii) the FRB Farm Credit Funding Corp. or U.S. Treasury Regulation 31 CFR (S)203.14to any other entity organized under the Farm Credit Act, as amended, and such Federal Reserve Bank may enforce this Section shall not apply to any such pledge or assignment of a security interest; provided that no such pledge or assignment of a security interest in shall release a Lender from any manner permitted under applicable lawof its obligations hereunder or substitute any such pledgee or Assignee for such Lender as a party hereto.
Appears in 1 contract
Assignments, Participations, etc. (a1) Any Lender may, with With the prior written consent of Culligan, the Administrative AgentAgent and, the Issuing Lender but only if there has not occurred and the Swing Line Lender (which is continuing an Event of Default or Potential Default, MAC, in each case such consents shall not to be unreasonably withheld)withheld or delayed, any Lender may at any time assign and delegate to one or more Eligible Assignees (provided that no written consent of Culligan, MAC or the Administrative Agent, the Issuing Lender or the Swing Line Lender Agent shall be required in connection with any assignment and delegation by a Lender to an Eligible Assignee that is an Affiliate of such Lender (so long as such assignment will not result in any increased costs to the Borrowers) or to another LenderLender or its Affiliate) (each an "“Assignee"”) all or any part of such Lender’s rights and obligations under this Agreement (including all or a portion of its Commitment and the Loans, Loans at the Commitment, the L/C Obligations time owing to it) and the other rights and obligations of Obligations held by such Lender hereunder, in a minimum Dollar Equivalent amount of U.S. $5,000,000 or5 million (or (A) if such Assignee is another Lender or an Affiliate of a Lender, $1 million, or such lesser amount as agreed by the Administrative Agent; and (B) if lesssuch Lender’s Commitment (or Revolving Commitment and Term Loan Credit Exposure) is less than $5 million, one hundred percent (100%) thereof); provided, however, that MAC, the entire amount of Borrower, the LoansIssuing Lender, Commitment, L/C Obligations and other rights and obligations of such the Swing Line Lender hereunder; provided that (i) the Borrowers and the Administrative Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (xi) written notice of such assignment, together with payment instructions, addresses and related information with respect to the Assignee, shall have been given to Culligan the Borrower, the Issuing Lender, the Swing Line Lender and the Administrative Agent by such Lender and the AssigneeAssignee and such assignment shall have been recorded in the Register in accordance with Section 11.8(1)(B); (yii) such Lender and the its Assignee shall have delivered to the Borrowers Borrower and the Administrative Agent an Assignment and Acceptance in the form of Exhibit H ("Assignment and Acceptance") together with any Note or Notes subject to such assignment; Agreement and (ziii) such Lender or the Assignee shall have has paid to the Administrative Agent a processing fee in the amount of U.S. $3,000; and (ii) concurrently with such assignment, the assignor Lender shall assign to the Assignee a proportionate share of its loans, commitment and other rights and obligations under the Long-Term Credit Agreement3,500.
(bA) From and after the date that the Administrative Agent notifies the assignor Lender and the Borrower that it has received (and, to the extent required, provided its consent and received the consents of Culligan, the Issuing Lender and the Swing Line Lender with respect to) an executed Assignment and Acceptance Agreement and payment of the above-referenced processing fee, : (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned to it and obligations hereunder have been assumed by it pursuant to such Assignment and AcceptanceAcceptance Agreement, shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assignor Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and AcceptanceAcceptance Agreement, relinquish its rights and be released from its obligations under the Loan DocumentsDocuments (but shall be entitled to indemnification as otherwise provided in this Agreement with respect to any events occurring prior to the assignment) and (iii) this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments resulting therefrom.
(cB) Borrower, Administrative Agent and Lenders shall deem and treat the Persons listed as Lenders in the Register as the holders and owners of the corresponding Commitments and Loans listed therein for all purposes hereof, and no assignment or transfer of any such Commitment or Loan shall be effective, in each case, unless and until receipt by Administrative Agent of a fully executed Assignment and Acceptance Agreement effecting the assignment or transfer thereof, together with the required forms and certificates regarding tax matters and any fees payable in connection with such assignment, in each case, as provided in Section 11.8(1). Each assignment shall be recorded in the Register promptly following receipt by the Administrative Agent of the fully executed Assignment Agreement and all other necessary documents and approvals, prompt notice thereof shall be provided to Borrower and a copy of such Assignment and Acceptance Agreement shall be maintained, as applicable. Any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is listed in the Register as a Lender shall be conclusive and binding absent manifest error on any subsequent holder, assignee or transferee of the corresponding Commitments or Loans.
(2) Within five Business Days after its receipt of notice by the Administrative Agent that it has received an executed Assignment and Acceptance Agreement and payment of the processing fee (which notice shall also be sent by the Administrative Agent to each Lender), the Borrower shall, if requested by the Assignee, execute and deliver to the Administrative Agent, a new Note evidencing such Assignee’s Revolving Commitment and/or new Note evidencing such Assignee’s portion of each Series of the Term Loans.
(3) Any Lender may at any time time, without notice to or the consent of any other Person, sell to one or more commercial banks or other Persons not Affiliates of Culligan the Borrower (a "“Participant"”) participating interests in all or any Loan, the Commitment portion of such Lender its rights and obligations under this Agreement and the other interests Loan Documents (including all or a portion of such Lender its Commitments and the Loans owing to it) (the "originating “Originating Lender") hereunder and under the other Loan Documents”); provided, however, that (i) the originating Originating Lender's ’s obligations under this Agreement shall remain unchanged, (ii) the originating Originating Lender shall remain solely responsible for the performance of such obligations, and (iii) the BorrowersBorrower, the Issuing Lender, the Swing Line Lender and the Administrative Agent shall continue to deal solely and directly with the originating Originating Lender in connection with the originating Originating Lender's ’s rights and obligations under this Agreement and the other Loan Documents, and (iv) no Lender shall transfer or grant any participating interest under which the Participant has rights to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment, consent or waiver would require unanimous consent of the Lenders as described in the first proviso to Section 12.
1. In the case of any such participation, the Participant shall be entitled to the benefit of Sections 4.12.5, 4.3, 4.4, 4.6 2.6 and 12.5 2.7 (and subject to the burdens of Sections 2.8 and 11.8 above) as though it were also a Lender hereunderthereunder, and if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, the each Participant shall be deemed to have the right of set-off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement, and Section 11.10 of this Agreement shall apply to such Participant as if it were a Lender party hereto.
(d4) Notwithstanding any other provision contained in this AgreementAgreement or any other Loan Document to the contrary, any Lender may at any time create a security interest in, or pledge, assign all or any portion of its rights and obligations under and interest in this Agreement and any Note held by it in favor the other Loan Documents (including all or a portion of its Commitments and the Loans owing to it) to any Federal Reserve Bank in accordance with or the United States Treasury as collateral security pursuant to Regulation A of the FRB Board of Governors of the Federal Reserve System and any Operating Circular issued by such Federal Reserve Bank, provided that any payment in respect of such assigned interests made by the Borrower to or U.S. for the account of the assigning and/or pledging Lender in accordance with the terms of this Agreement shall satisfy the Borrower’s obligations hereunder in respect to such assigned interests to the extent of such payment. No such assignment shall release the assigning Lender from its obligations hereunder.
(5) Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain at one of its offices a register on which it enters the names and addresses of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under this Agreement (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any Commitments, Loans or its other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that such Commitment, Loan or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulation 31 CFR (S)203.14Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Federal Reserve Bank may enforce Lender shall treat each Person whose name is recorded in the Participant Register pursuant to the terms hereof as the owner of such pledge or security interest in any manner permitted under applicable lawparticipation for all purposes of this Agreement, notwithstanding notice to the contrary.
Appears in 1 contract
Samples: Joinder Agreement (Macerich Co)
Assignments, Participations, etc. (a) Any Lender may, with the written consent of Culligan, the Administrative Agent, the Issuing Lender and the Swing Line Lender (which consents shall not be unreasonably withheld), may at any time assign and delegate to one or more Eligible Assignees (provided that no written consent of Culligan, the Administrative Agent, the Issuing Lender or the Swing Line Lender shall be required in connection with any assignment and delegation by a Lender to an Eligible Assignee that is an Affiliate of such Lender (so long as such assignment will not result in any increased costs to the Borrowers) or to another Lender) (each an "Assignee") all or any part a portion of its rights and obligations under this Agreement (including all or a portion of its Commitment and the LoansLoans (including for purposes of this SUBSECTION (a), the Commitment, the participations in L/C Obligations and Obligations) at the other rights and obligations of such Lender hereunder, in a minimum Dollar Equivalent amount of U.S. $5,000,000 or, if less, the entire amount of the Loans, Commitment, L/C Obligations and other rights and obligations of such Lender hereundertime owing to it); provided PROVIDED that (i) except in the Borrowers case of an assignment of the entire remaining amount of the assigning Lender's Commitment and the Loans at the time owing to it or in the case of an assignment to a Lender or an Affiliate of a Lender or an Approved Fund (as defined in SUBSECTION (f) of this Section) with respect to a Lender, the aggregate amount of the Commitment (which for this purpose includes Loans outstanding thereunder) subject to each such assignment, determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent may continue or, if "Trade Date" is specified in the Assignment and Assumption, as of the Trade Date, shall not be less than Cdn.$5,000,000 unless each of the Administrative Agent and, so long as no Event of Default has occurred and is continuing, the Borrower otherwise consents (each such consent not to deal solely be unreasonably withheld or delayed); (ii) each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender's rights and directly with such Lender in connection with the interest so assigned to an Assignee until (x) written notice of such assignment, together with payment instructions, addresses and related information obligations under this Agreement with respect to the AssigneeLoans or the Commitment assigned; (iii) any assignment of a Commitment must be approved by the -88- Administrative Agent, shall have been given to Culligan and the Administrative Agent by such Issuing Lender and unless the Person that is the proposed assignee is itself a Lender (whether or not the proposed assignee would otherwise qualify as an Eligible Assignee); (yiv) such Lender the parties to each assignment shall execute and the Assignee shall have delivered deliver to the Borrowers and the Administrative Agent an Assignment and Acceptance in the form of Exhibit H ("Assignment and Acceptance") Assumption, together with a processing and recordation fee of Cdn.$6,500; and (v) an assignee shall not be entitled to receive any Note greater payment under SECTION 5.1 than the applicable Lender would have been entitled to receive with respect to the Commitment or Notes Loan assigned to such assignee, unless the assignment is made with the Borrower's prior written consent (but subject to such assignment; limitation, the assignee shall be entitled to the benefits of SECTION 5.3 hereof, which may require the Borrower to compensate Lenders for increased costs, including increased withholding tax rates). Subject to acceptance and (z) such Lender or the Assignee shall have paid to recording thereof by the Administrative Agent a processing fee in the amount of U.S. $3,000; and (ii) concurrently with such assignment, the assignor Lender shall assign pursuant to the Assignee a proportionate share of its loans, commitment and other rights and obligations under the Long-Term Credit Agreement.
SUBSECTION (b) From of this Section, from and after the effective date that the Administrative Agent notifies the assignor Lender that it has received (and, to the extent required, provided its consent specified in each Assignment and received the consents of CulliganAssumption, the Issuing Lender and the Swing Line Lender with respect to) an executed Assignment and Acceptance and payment of the above-referenced processing fee, (i) the Eligible Assignee thereunder shall be a party hereto to this Agreement and, to the extent that rights hereunder have been of the interest assigned to it and obligations hereunder have been assumed by it pursuant to such Assignment and AcceptanceAssumption, shall have the rights and obligations of a Lender under the Loan Documentsthis Agreement, and (ii) the assignor assigning Lender thereunder shall, to the extent that rights and obligations hereunder and under of the other Loan Documents have been interest assigned by it pursuant to such Assignment and AcceptanceAssumption, relinquish its rights and be released from its obligations under this Agreement (and, in the Loan Documentscase 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 5.1, 5.3, 5.4, 11.4 AND 11.5 with respect to facts and circumstances occurring prior to the effective date of such assignment). Upon request, the Borrower (at its expense) shall execute and deliver a Note to the assignee Lender. Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this subsection 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 SUBSECTION (c) of this Section.
(b) The Administrative Agent, acting solely for this purpose as an agent of the Borrower, shall maintain at the Administrative Agent's Payment Office a copy of each Assignment and Assumption delivered to it and a register for the recordation of the names and addresses of the Lenders, and the Commitments of, and principal amounts of the Loans and L/C Obligations owing to, each Lender pursuant to the terms hereof from time to time (the "Register"). The entries in the Register shall be conclusive, and the Borrower, the Administrative Agent and the Lenders may treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available for inspection by the Borrower and any Lender, at any reasonable time and from time to time upon reasonable prior notice.
(c) Any Lender may at any time time, without the consent of, or notice to, the Borrower or the Administrative Agent, sell participations to one any Person (other than a natural person or more commercial banks the Borrower or other Persons not any of the Borrower's Affiliates of Culligan or Subsidiaries) (each, a "Participant") participating interests in any Loan, the Commitment all or a portion of such Lender and Lender's rights and/or obligations under this Agreement (including all or a portion of its Commitment and/or the other interests of Loans (including such Lender (the "originating Lender"'s participations in L/C Obligations) hereunder and under the other Loan Documentsowing to it); provided, however, PROVIDED that (i) the originating such Lender's obligations under this Agreement shall remain unchanged, (ii) the originating such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, obligations and (iii) the BorrowersBorrower, the Issuing Lender, the Swing Line Lender and the Administrative Agent and the other Lenders shall continue to deal solely and directly with the originating such Lender in connection with the originating such Lender's rights and obligations under this Agreement. Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and the other Loan Documents, and (iv) no Lender shall transfer or grant any participating interest under which the Participant has rights to approve any amendment toamendment, or any consent modification or waiver with respect toof any provision of this Agreement; PROVIDED that such agreement or instrument may provide that such Lender will not, this Agreement or any other Loan Document, except to without the extent such amendment, consent or waiver would require unanimous consent of the Lenders as Participant, agree to any amendment, waiver or other modification described in the first proviso to Section 12.
1SECTION 11.1 that directly affects such Participant. In the case Subject to SUBSECTION (d) of any such participationthis Section, the Borrower agrees that each Participant shall be entitled to the benefit benefits of Sections 4.1SECTIONS 5.1, 4.35.3, 4.45.4, 4.6 and 12.5 as though it were also a Lender hereunder, and if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, the Participant shall be deemed to have the right of set-off in respect of its participating interest in amounts owing under this Agreement 5.6 AND 11.5 to the same extent as if the amount of its participating interest it were owing directly to it as a Lender under and had acquired its interest by assignment pursuant to SUBSECTION (a) of this AgreementSection. To the extent permitted by law, each Participant also shall be entitled to the benefits of SECTION 11.11 as though it were a Lender, provided such Participant agrees to be subject to SECTION 2.11 as though it were a Lender.
(d) Notwithstanding A Participant shall not be entitled to receive any other provision in this Agreementgreater payment under SECTION 5.1 OR 5.3 than the applicable Lender would have been entitled to receive with respect to the participation sold to such Participant, any unless the sale of the participation to such Participant is made with the Borrower's prior written consent. A Participant that would be a Foreign Lender if it were a Lender shall not be entitled to the benefits of SECTION 5.1 unless the Borrower is notified of the participation sold to such Participant and such Participant agrees, for the benefit of the Borrower, to comply with SECTION 5.1 as though it were a Lender.
(e) Any Lender may at any time create pledge or assign a security interest in, or pledge, in all or any portion of its rights under and interest in this Agreement and (including under its Note, if any) to secure obligations of such Lender, including any Note held by it in favor of any pledge or assignment to secure obligations to a Federal Reserve Bank in accordance with Regulation A of the FRB or U.S. Treasury Regulation 31 CFR (S)203.14, and such Federal Reserve Bank may enforce Bank; PROVIDED that no such pledge or security interest in assignment shall release such Lender from any manner permitted under applicable lawof its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
(f) As used herein, the following terms have the following meanings:
Appears in 1 contract
Samples: Credit Agreement (Capital Environmental Resource Inc)
Assignments, Participations, etc. (a) Any Each Lender may, with without --------------------------------- the written consent of Culliganthe Borrower, but with prior notice to the Administrative Agent, the Issuing Lender and the Swing Line Lender (which consents shall not be unreasonably withheld), at any time sell or assign and delegate to one or more Eligible Assignees (provided that no written consent of Culligan, the Administrative Agent, the Issuing Lender or the Swing Line Lender shall be required in connection with any assignment and delegation by a Lender to an Eligible Assignee that is an Affiliate of such Lender (so long as such assignment will not result in any increased costs to the Borrowers) or to another Lender) (each an "Assignee") all or any part of the Loans, the Commitment, the L/C Obligations Loan of such Lender and the other rights and obligations of such Lender hereunder, in a minimum Dollar Equivalent amount of U.S. $5,000,000 or, if less, to any Person or any assignee thereof (an "Assignee") unless the entire amount sale or assignment of the Loans, Commitment, L/C Obligations Loan and such other rights and obligations of such Lender hereunder; provided that (i) would reasonably put the Borrowers and business of the Administrative Agent may continue to deal solely and directly with Borrower at a competitive disadvantage, then such Lender in connection with sale or assignment shall require the interest so assigned to an Assignee until (x) written notice consent of such assignment, together with payment instructions, addresses and related information with respect to the Assignee, shall have been given to Culligan and the Administrative Agent by such Lender and the Assignee; (y) such Borrower. The assigning Lender and the Assignee shall have delivered enter into an assignment agreement, in form and substance satisfactory to the Borrowers and the Administrative Agent (an Assignment and Acceptance in the form of Exhibit H ("Assignment and Acceptance") together ), with any Note respect to the sale or Notes assignment ------------------------- of the Loan to be assigned and, subject to such assignment; paragraphs (e) and (zf) of this Section 9.11, upon execution and delivery of such Lender or the Assignee shall have paid to the Administrative Agent a processing fee in the amount of U.S. $3,000; and (ii) concurrently with such assignment, the assignor Lender shall assign to the Assignee a proportionate share of its loans, commitment and other rights and obligations under the Long-Term Credit Agreement.
(b) From and after the date that the Administrative Agent notifies the assignor Lender that it has received (and, to the extent required, provided its consent and received the consents of Culligan, the Issuing Lender and the Swing Line Lender with respect to) an executed Assignment and Acceptance and payment of the above-referenced processing feeAcceptance, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it and obligations hereunder have been assumed by it pursuant to such Assignment and Acceptance, shall have the rights and obligations of a Lender hereunder and under the Loan other Financing Documents, and this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to effect the addition of the Assignee, and any reference to the assigning Lender hereunder or under the other Financing Documents shall thereafter refer to such Lender and to the Assignee to the extent of their respective interests, and (ii) the assignor assigning Lender shall, to the extent that rights and obligations hereunder and under the other Loan Financing Documents have been assigned by it pursuant to such Assignment and Acceptanceassignment agreement, relinquish its rights and be released from its obligations under the Loan Financing Documents.
(cb) Any Each Lender may at any time sell participations to one or more commercial banks or other Persons not Affiliates entities (other than the Borrower or any of Culligan (its Affiliates) in or to all or a "Participant") participating interests in any Loan, the Commitment portion of its rights and obligations under this Agreement and such Lender and the other interests of such Lender (the "originating Lender") hereunder and under the other Loan Documents's Note; provided, however, that (i) the originating such Lender's obligations under this -------- ------- Agreement shall remain unchanged, (ii) the originating such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) such Lender shall remain the Borrowersholder of any such Note for all purposes of this Agreement, (iv) the Issuing Lender, the Swing Line Lender Borrower and the Administrative Agent other Lenders shall continue to deal solely and directly with the originating such Lender in connection with the originating such Lender's rights and obligations under this Agreement and the other Loan Documents, and (ivv) no Lender participant under any such participation shall transfer or grant have any participating interest under which the Participant has rights right to approve any amendment toor waiver of any provision of this Agreement or any Note, or any consent or waiver with respect to, this Agreement or to any other Loan Documentdeparture by the Borrower therefrom, except to the extent that such amendment, waiver or consent would reduce the principal of, or waiver would require unanimous consent interest on, the Note or any fees or other amounts payable hereunder, or release of all or substantially all of the Lenders as described Collateral, in each case to the first proviso extent subject to Section 12.
1. In the case of any such participation, or postpone any date fixed for any payment of principal of, or interest on, the Participant shall be entitled Notes or any fees or other amounts payable hereunder, in each case to the benefit extent subject to such participation.
(c) A Lender may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section 9.11, disclose to the assignee or participant or proposed assignee or participant, any information relating to the Borrower furnished to such Lender by or on behalf of Sections 4.1the Borrower; provided, 4.3, 4.4, 4.6 and 12.5 as though it were also a Lender hereunder, and if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Defaultthat prior to any such disclosure, the Participant assignee or -------- participant or proposed assignee or participant shall be deemed agree to have preserve the right confidentiality of set-off in respect of its participating interest in amounts owing under this Agreement any confidential information relating to the same extent as if the amount of its participating interest were owing directly to Borrower received by it as a Lender under this Agreementfrom such Lender.
(d) Notwithstanding any other provision contained in this AgreementAgreement or any other Financing Document to the contrary, any Lender may at any time create a security interest in, or pledge, assign all or any portion of its rights under and interest in this Agreement and any Note the Loan held by it as collateral security, provided that any -------- payment in favor respect of any Federal Reserve Bank such assigned Loan or Note made by the Borrower to or for the account of the assigning or pledging Lender in accordance with Regulation A the terms of this Agreement shall satisfy the Borrower's obligations hereunder in respect to such assigned Loan or Note to the extent of such payment. No such assignment shall release the assigning Lender from its obligations hereunder.
(e) The Borrower hereby designates the Administrative Agent to serve as the Borrower's agent, solely for purposes of this Section 9.11, to maintain a register (the "Register") on which it will record the Loans made by each of the FRB Lenders and each repayment in respect of the principal amount of the Loans of each Lender. Failure to make any such recordation, or U.S. Treasury Regulation 31 CFR (S)203.14any error in such recordation shall not affect the Borrower's obligations in respect of such Loans. With respect to any Lender, the transfer of the rights to the principal of, and interest on, any Loan shall not be effective until such Federal Reserve Bank transfer is recorded on the Register maintained by the Administrative Agent with respect to ownership of such Loans and prior to such recordation all amounts owing to the transferor with respect to such Loans shall remain owing to the transferor. The registration of assignment or transfer of all or part of any Loans shall be recorded by the Administrative Agent on the Register only upon the acceptance by the Administrative Agent of a properly executed and delivered Assignment and Acceptance pursuant to Section 9.11
(a) The Borrower agrees to indemnify the Administrative Agent from and against any and all losses, claims, damages and liabilities of whatsoever nature which may enforce such pledge be imposed on, asserted against or security interest incurred by the Administrative Agent in performing its duties under this Section 9.11(e).
(f) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an Assignee (and, in any manner permitted under applicable lawcase where the consent of the Borrower is required by this Section, by the Borrower) together with payment to the Administrative Agent of a registration and processing fee of $3,500, the Administrative Agent shall (i) promptly accept such Assignment and Acceptance and (ii) on the effective date determined pursuant thereto record the information contained therein in the Register and give notice of such acceptance and recordation to the Borrower. On or prior to such effective date, the Borrower, at its own expense, upon request, shall execute and deliver to the Administrative Agent (in exchange for the Note of the assigning Lender) a new Note to the order of such Assignee in an amount equal to the Loan acquired by it pursuant to such Assignment and Acceptance and, if such assigning Lender has retained a Loan, a new Note to the order of such assigning Lender in an amount equal to the Loan retained by it hereunder.
Appears in 1 contract
Samples: Credit Agreement (Pg&e Corp)
Assignments, Participations, etc. (a) Any Lender may, with the prior written consent of Culligan, the Administrative AgentCompany, the Issuing Lender and the Swing Line Lender Administrative Agent (which consents shall not be unreasonably withheld), at any time assign and delegate to one or more Eligible Assignees (provided that no written consent of Culligan, the Administrative AgentCompany, the Issuing Lender or the Swing Line Lender Administrative Agent shall be required in connection with any assignment and delegation by a Lender to an Eligible Assignee that is an Affiliate of such Lender (so long as such assignment will not result in any increased costs to the Borrowers) or to another Lender) (each an "AssigneeASSIGNEE") all all, or any ratable part of all, of the Committed Loans, the Commitment, the L/C Obligations and the other rights and obligations of such Lender hereunder, in a minimum Dollar Equivalent amount of U.S. $5,000,000 10,000,000 (or, if less, in the entire amount case of the Loans, Commitment, L/C Obligations an assignment and other rights and obligations delegation to an Affiliate of such Lender hereunderor another Lender, $5,000,000); provided PROVIDED that no Lender may (isubject to, so long as no Event of Default has occurred and is continuing, the consent of the Company, which may be withheld for any reason) make any assignment (other than to an Affiliate of such Lender) which would result in the amount of such Lender's Commitment being less than the product of (x) $15,000,000 and (y) the Borrowers quotient (but not more than one) of the then-current Aggregate Commitment DIVIDED BY $180,000,000; and PROVIDED, FURTHER, that the Company, the Issuing Lender and the Administrative Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (xi) written notice of such assignment, together with payment instructions, addresses and related information with respect to the Assignee, shall have been given to Culligan the Company, the Issuing Lender and the Administrative Agent by such Lender and the Assignee; (yii) such Lender and the its Assignee shall have delivered to the Borrowers Company, the Issuing Lender and the Administrative Agent an Assignment and Acceptance in the form of Exhibit H EXHIBIT I ("Assignment and AcceptanceASSIGNMENT AND ACCEPTANCE") together with any Note or Notes subject to such assignment; assignment and (ziii) such the assignor Lender or Assignee (or, in the Assignee shall have case of an assignment required by SECTION 2.17, the Company) has paid to the Administrative Agent a processing fee in the amount of U.S. $3,000; and (ii) concurrently with such assignment, the assignor Lender shall assign to the Assignee a proportionate share of its loans, commitment and other rights and obligations under the Long-Term Credit Agreement3,500.
(b) From and after the date that the Administrative Agent notifies the assignor Lender that it has received (and, to the extent required, and provided its consent (and received the consents of Culliganreceived, if applicable, the Issuing Lender and consent of the Swing Line Lender Company) with respect to) to an executed Assignment and Acceptance and payment of the above-referenced processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it and obligations hereunder have been assumed by it pursuant to such Assignment and Acceptance, shall have the rights and obligations of a Lender hereunder and under the other Loan Documents, Documents and (ii) the assignor Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations hereunder and under the other Loan Documents.
(c) Any Lender may at any time time, with the prior written consent of the Company (which consent shall not be unreasonably withheld) sell to one or more commercial banks or other Persons not Affiliates of Culligan the Company (a "ParticipantPARTICIPANT") participating interests in any LoanLoans, the Commitment of such Lender and the other interests of such Lender (the "originating LenderORIGINATING LENDER") hereunder and under the other Loan Documents, in a minimum amount of $5,000,000; providedPROVIDED that no Lender may (subject to, howeverso long as no Event of Default has occurred and is continuing, the consent of the Company, which may be withheld for any reason) sell any participation which would result in the amount of such Lender's Commitment MINUS the amount of all participating interests sold by such Lender being less than the product of (x) $15,000,000 and (y) the quotient (but not more than one) of the then-current amount of the Aggregate Commitment DIVIDED BY $180,000,000; and PROVIDED, FURTHER, that (i) the originating Lender's obligations under this Agreement shall remain unchanged, (ii) the originating Lender shall remain solely responsible for the performance of such obligations, (iii) the BorrowersCompany, the Issuing Lender, the Swing Line Lender and the Administrative Agent shall continue to deal solely and directly with the originating Lender in connection with the originating Lender's rights and obligations under this Agreement and the other Loan Documents, Documents and (iv) no Lender shall transfer or grant any participating interest under which the Participant has rights to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan DocumentDocuments, except to the extent such amendment, consent or waiver would require unanimous consent of the Lenders as described in the first proviso to Section 12.extent
1. In the case of any such participation, the Participant shall be entitled to the benefit of Sections SECTIONS 4.1, 4.3, 4.4, 4.6 11.4 and 12.5 11.5 as though it were also a Lender hereunderhereunder (provided that no Participant shall be entitled to receive any greater amount pursuant to such Sections than the originating Lender would have been entitled to receive if no such participation had been sold), and if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, the each Participant shall be deemed to have the right of set-off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement.
(d) Notwithstanding any other provision in this Agreement, any Lender may at any time (i) sell, assign or grant participations in any Bid Loan made by such Lender or (ii) create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement and any Note held by it in favor of any Federal Reserve Bank in accordance with Regulation A of the FRB or U.S. Treasury Regulation 31 CFR (S)203.14Section 203.14, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law.
Appears in 1 contract
Assignments, Participations, etc. (a) Any Lender may, with the written consent of Culligan, the Administrative Borrower (at all times other than during the existence of an Event of Default) and the Agent, which consent of the Issuing Lender Borrower and the Swing Line Lender (which consents Agent shall not be unreasonably withheld), at any time assign and delegate to one or more Eligible Assignees (provided that no written consent of Culligan, the Administrative Agent, the Issuing Lender Borrower or the Swing Line Lender Agent shall be required in connection with any assignment and delegation by a Lender to an Eligible Assignee that is an Affiliate of such Lender (so long as such assignment will not result in any increased costs to the Borrowers) or to another which is an existing Lender) (each an "AssigneeASSIGNEE") all all, or any ratable part of all, of the Loans, the Commitment, the L/C Obligations Commitments and the other rights and obligations of such Lender hereunder, in a minimum Dollar Equivalent amount of U.S. $5,000,000 or5,000,000; PROVIDED, if lessHOWEVER, that the entire amount of the Loans, Commitment, L/C Obligations and other rights and obligations of such Lender hereunder; provided that (i) the Borrowers Borrower and the Administrative Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (xi) written notice of such assignment, together with payment instructions, addresses and related information with respect to the Assignee, shall have been given to Culligan the Borrower and the Administrative Agent by such Lender and the Assignee; (yii) such Lender and the its Assignee shall have delivered to the Borrowers Borrower and the Administrative Agent an Assignment and Acceptance in the form of Exhibit H EXHIBIT E ("Assignment and AcceptanceASSIGNMENT AND ACCEPTANCE") together with any Note or Notes subject to such assignment; assignment and (ziii) such the assignor Lender or the Assignee shall have has paid to the Administrative Agent a processing fee in the amount of U.S. $3,000; and 3,500 (ii) concurrently except with such assignment, the assignor Lender shall assign respect to the Assignee a proportionate share of its loans, commitment and other rights and obligations under the Long-Term Credit Agreementassignments to Affiliates).
(b) From and after the date that the Administrative Agent notifies the assignor Lender that it has received (and, to the extent required, and provided its consent and received the consents of Culligan, the Issuing Lender and the Swing Line Lender with respect to) an executed Assignment and Acceptance and payment of the above-referenced processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it and obligations hereunder have been assumed by it pursuant to such Assignment and Acceptance, shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assignor Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under the Loan Documents.
(c) Within five Business Days after its receipt of notice by the Agent that it has received an executed Assignment and Acceptance and payment of the processing fee, (and provided that it consents to such assignment in accordance with and to the extent required by SECTION 12.8(a)), the Borrower shall execute and deliver to the Agent, new Notes evidencing such Assignee's assigned Loans and Commitment and, if the assignor Lender has retained a portion of its Loans and its Commitment, replacement Notes in the principal amount of the Loans retained by the assignor Lender (such Notes to be in exchange for, but not in payment of, the Notes held by such Lender). Immediately upon each Assignee's making its processing fee payment under the Assignment and Acceptance, this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitments of the assigning Lender PRO TANTO.
(d) Any Lender or Designated Bidder may at any time sell to one or more commercial banks Lenders or other Persons not Affiliates of Culligan the Borrower (a "ParticipantPARTICIPANT") participating interests in any LoanLoans, the Commitment of such that Lender and the other interests of such that Lender or Designated Bidder (the "originating Lender") hereunder and under the other Loan Documents; providedPROVIDED, howeverHOWEVER, that (i) the originating Lender's obligations under this Agreement shall remain unchanged, (ii) the originating Lender shall remain solely responsible for the performance of such obligations, (iii) the Borrowers, the Issuing Lender, the Swing Line Lender Borrower and the Administrative Agent shall continue to deal solely and directly with the originating Lender in connection with the originating Lender's rights and obligations under this Agreement and the other Loan Documents, and (iv) no Lender shall transfer or grant any participating interest under which the Participant has rights to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment, consent or waiver would require unanimous consent of the Lenders as described in the first proviso FIRST PROVISO to Section 12.
1SECTION 12.1 and (v) no Participant shall, without the written consent of the Borrower (not to be unreasonably withheld or delayed) be a direct competitor (or an Affiliate thereof) of the Borrower. In the case of any such participation, the Participant shall be entitled to the benefit of Sections SECTIONS 4.1, 4.3, 4.4, 4.6 4.3 and 12.5 as though it were also a Lender or Designated Bidder (as the case may be) hereunder, and and, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, the each Participant shall be deemed to have the right of set-off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender or Designated Bidder (as the case may be) under this Agreement.
(de) Notwithstanding any other provision in this Agreement, any Lender or Designated Bidder may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement and any the Note held by it in favor of any Federal Reserve Bank in accordance with Regulation A of the FRB or U.S. Treasury Regulation 31 CFR (S)203.14Section 203.14, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law.
Appears in 1 contract
Assignments, Participations, etc. (a) Any Lender may, with the written consent of Culligan, the Administrative Agent, the Issuing Lender and the Swing Line Lender (which consents consent shall not be unreasonably withheld), at any time assign and delegate to one or more Eligible Assignees (provided that no written consent of Culligan, the Administrative Agent, the Issuing Lender or the Swing Line Lender Agent shall be required in connection with any assignment and delegation by a Lender to an Eligible Assignee that is an Affiliate of such Lender (so long as such assignment will not result in any increased costs to the Borrowers) or to another Lender) (each an "Assignee") all all, or any ratable part of all, of the Loans, the CommitmentCommitments, the L/C Obligations and the other rights and obligations of such Lender hereunder, in a minimum Dollar Equivalent amount of U.S. $5,000,000 (or, if less, the entire amount of the such Lender's Loans, Commitment, Commitment and L/C Obligations and other rights and obligations of such Lender hereunderObligations); provided provided, however, that (i) the Borrowers Company and the Administrative Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (xi) written notice of such assignment, together with payment instructions, addresses and related information with respect to the Assignee, shall have been given to Culligan the Company and the Administrative Agent by such Lender and the Assignee; (yii) such Lender and the its Assignee shall have delivered to the Borrowers Company and the Administrative Agent an Assignment and Acceptance in the form of Exhibit H F ("Assignment and Acceptance") together with any Note or Notes subject to such assignment; assignment and (ziii) such the assignor Lender or the Assignee shall have has paid to the Administrative Agent a processing fee in the amount of U.S. $3,000; and (ii) concurrently with such assignment, the assignor Lender shall assign to the Assignee a proportionate share of its loans, commitment and other rights and obligations under the Long-Term Credit Agreement3,500.
(b) From and after the date that the Administrative Agent notifies the assignor Lender that it has received (and, to the extent required, and provided its consent and received the consents of Culligan, the Issuing Lender and the Swing Line Lender with respect to) an executed Assignment and Acceptance and payment of the above-referenced processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it and obligations hereunder have been assumed by it pursuant to such Assignment and Acceptance, shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assignor Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under the Loan Documents.
(c) Within five Business Days after its receipt of notice by the Agent that it has received an executed Assignment and Acceptance and payment of the processing fee, (and provided that it consents to such assignment in accordance with Section 11.08(a)), the Company shall execute and deliver to the Agent, new Notes evidencing such Assignee's assigned Loans and Commitment and, if the assignor Lender has retained a portion of its Loans and its Commitment, replacement Notes in the principal amount of the Loans retained by the assignor Lender (such Notes to be in exchange for, but not in payment of, the Notes held by such Lender). Immediately upon each Assignee's making its processing fee payment under the Assignment and Acceptance, this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitments of the assigning Lender pro tanto.
(d) Any Lender may at any time sell to one or more commercial banks lenders or other Persons not Affiliates of Culligan the Company (a "Participant") participating interests in any LoanLoans, the Commitment of such that Lender and the other interests of such that Lender (the "originating Lender") hereunder and under the other Loan Documents; provided, however, that (i) the originating Lender's obligations under this Agreement shall remain unchanged, (ii) the originating Lender shall remain solely responsible for the performance of such obligations, (iii) the BorrowersCompany, the Issuing Lender, the Swing Line Lender and the Administrative Agent shall continue to deal solely and directly with the originating Lender in connection with the originating Lender's rights and obligations under this Agreement and the other Loan Documents, and (iv) no Lender shall transfer or grant any participating interest under which the Participant has rights to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment, consent or waiver would require unanimous consent of the Lenders as described in the first proviso to Section 1211.
101. In the case of any such participation, the Participant shall be entitled to not have any rights under this Agreement, or any of the benefit of Sections 4.1, 4.3, 4.4, 4.6 and 12.5 as though it were also a Lender hereunderother Loan Documents, and all amounts payable by the Company hereunder shall be determined as if such Lender had not sold such participation; except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, the each Participant shall be deemed to have the right of set-off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement.
(de) Notwithstanding any other provision in this Agreement, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement and any the Note held by it in favor of any Federal Reserve Bank in accordance with Regulation A of the FRB or U.S. Treasury Regulation 31 CFR (S)203.14Sec.203.14, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law.
Appears in 1 contract
Samples: Credit Agreement (Abc Naco Inc)
Assignments, Participations, etc. (a) Any Lender may, with the written consent of Culligan, the Borrower (at all times other than during the existence of an Event of Default) and the Administrative Agent, the Issuing Lender and the Swing Line Lender (which consents shall not be unreasonably withheld), at any time assign and delegate to one or more Eligible Assignees (provided that no written consent of Culligan, the Borrower or the Administrative Agent, the Issuing Lender or the Swing Line Lender Agent shall be required in connection with any assignment and delegation by a Lender to an Eligible Assignee that is an Affiliate of such Lender (so long as such assignment will not result in any increased costs to the Borrowers) or to another Lender) (each an "Assignee") all all, or any ratable part of all, of the Loans, the Commitment, the L/C Obligations Commitments and the other rights and obligations of such Lender hereunder, provided, however, that (x) any assignment and delegation shall be a constant and not a varying, percentage of all of the assigning Lender's Commitments and Loans hereunder, (y) the aggregate principal amount of the Commitments and Loans assigned by any Lender to someone other than another Lender shall be in a minimum Dollar Equivalent amount of U.S. $5,000,000 or, (or if less, the entire Commitments then held by such Lender) and after giving effect to any such assignment by a Lender, the aggregate amount of the Loans, Commitment, L/C Obligations and other rights and obligations of Commitments and/or Loans held by such assigning Lender is at least $5,000,000 (unless such Lender hereunder; provided that (i) has assigned the Borrowers entire Commitment and Loans then held by it). The Borrower and the Administrative Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (xi) written notice of such assignment, together with payment instructions, addresses and related information with respect to the Assignee, shall have been given to Culligan the Borrower and the Administrative Agent by such Lender and the Assignee; (yii) such Lender and the its Assignee shall have delivered to the Borrowers Borrower and the Administrative Agent an Assignment and Acceptance in the form of Exhibit H E ("Assignment and Acceptance") together with any Note or Notes subject to such assignment; and (ziii) such the assignor Lender or the Assignee shall have has paid to the Administrative Agent a processing fee in the amount of U.S. $3,000; and (ii) concurrently with such assignment, the assignor Lender shall assign to the Assignee a proportionate share of its loans, commitment and other rights and obligations under the Long-Term Credit Agreement.
(b) From and after the date that the Administrative Agent notifies the assignor Lender that it has received (and, to and provided the extent required, provided its consent and received the required consents of Culligan, the Issuing Lender and the Swing Line Lender with respect to) an executed Assignment and Acceptance and payment of the above-referenced processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it and obligations hereunder have been assumed by it pursuant to such Assignment and Acceptance, shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assignor Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under the Loan Documents.
(c) Immediately upon each Assignee's making its processing fee payment under the Assignment and Acceptance, this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitments of the assigning Lender pro tanto.
(d) Any Lender may at any time sell to one or more commercial banks or other Persons not Affiliates of Culligan the Borrower (a "Participant") participating interests in any LoanLoans, the Commitment of such that Lender and the other interests of such that Lender (the "originating Originating Lender") hereunder and under the other Loan DocumentsDocuments provided that such assignment shall be a constant and not a varying percentage of that Lender's Commitments and Loans; provided, however, that (i) the originating Lender's obligations under this Agreement shall remain unchanged, (ii) the originating Originating Lender shall remain solely responsible for the performance of such obligations, (iii) the Borrowers, the Issuing Lender, the Swing Line Lender Borrower and the Administrative Agent shall continue to deal solely and directly with the originating Originating Lender in connection with the originating Lender's rights and obligations under this Agreement and the other Loan Documents, and (iv) no Lender shall transfer or grant any participating interest under which the Participant has rights to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment, consent or waiver would require unanimous consent of the Lenders as described in the first proviso to Section 1210.
1. In the case of any such participation, the Participant shall be entitled to the benefit of Sections 4.13.1, 4.3, 4.4, 4.6 3.3 and 12.5 as though it were also a 10.5 to the extent the Lender hereunderselling such participation would be so entitled, and if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, the each Participant shall be deemed to have the right of set-off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement.
(de) Notwithstanding any other provision in this Agreement, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement and any Note held by it in favor of any Federal Reserve Bank in accordance with Regulation A of the FRB or U.S. Treasury Regulation 31 CFR (S)203.14ss.203.14, and such Federal 66 Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law.
Appears in 1 contract
Assignments, Participations, etc. (a) Any Lender may, with the may upon written consent of Culligan, the Administrative Agent, the Issuing Lender and the Swing Line Lender (Company, which consents consent shall not be unreasonably withheldwithheld (provided at any time that an Event of Default has occurred and is continuing, no approval from the Company shall be required), at any time time, assign and delegate to one or more Eligible Assignees (provided that no written consent of Culligan, the Administrative Agent, Agent or the Issuing Lender or the Swing Line Lender shall be required in connection with any assignment and delegation by a the Lender to an Eligible Assignee that is an Affiliate of such Lender (so long as such assignment will not result in any increased costs to the Borrowers) or to another Lender) (each an "“Assignee"”) all all, or any ratable part of all in a minimum commitment amount at least equal to $2,500,000, of the Loans, the CommitmentCommitments, the L/C Obligations and the other rights and obligations of such Lender hereunder; provided, in a minimum Dollar Equivalent amount of U.S. $5,000,000 orhowever, if less, that the entire amount of the Loans, Commitment, L/C Obligations and other rights and obligations of such Lender hereunder; provided that (i) the Borrowers Company and the Administrative Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (xi) written notice of such assignment, together with payment instructions, addresses and related information with respect to the Assignee, shall have been given to Culligan the Company and the Administrative Agent by such Lender and the Assignee; (yii) such Lender and the its Assignee shall have delivered to the Borrowers Company and the Administrative Agent an Assignment and Acceptance in the form of Exhibit H D ("“Assignment and Acceptance"”) together with any Note or Notes subject to such assignment; assignment and (ziii) such the assignor Lender or the Assignee shall have has paid to the Administrative Agent a processing fee in the amount of U.S. $3,000; and (ii) concurrently with such assignment, the assignor Lender shall assign to the Assignee a proportionate share of its loans, commitment and other rights and obligations under the Long-Term Credit Agreement3,500.00.
(b) From and after the date that the Administrative Agent notifies the assignor Lender that it has received (and, to the extent required, provided its consent and received the consents of Culligan, the Issuing Lender and the Swing Line Lender with respect to) an executed Assignment and Acceptance and payment of the above-referenced processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it and obligations hereunder have been assumed by it pursuant to such Assignment and Acceptance, shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assignor Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under the Loan Documents.
(c) Within five (5) Business Days after its receipt of notice by the Administrative Agent that it has received an executed Assignment and Acceptance and payment of the processing fee, (and provided that it consents to such assignment in accordance with Subsection 11.08(a)) the Company shall execute and deliver to the Administrative Agent, new Notes evidencing such Assignee’s assigned Loans and Commitment and, if the assignor Lender has retained a portion of its Loans and its Commitment, replacement Notes in the principal amount of the Loans retained by the assignor Lender (such Notes to be in exchange for, but not in payment of, the Notes held by such Lender, which shall be cancelled upon receipt of the new or replacement Notes). Immediately upon each Assignee’s making its processing fee payment under the Assignment and Acceptance, this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitments of the assigning Lender pro tanto.
(d) Any Lender may at any time sell to one or more commercial banks Lenders or other Persons not Affiliates of Culligan the Company or any Guarantor (a "“Participant"”) participating interests in any LoanLoans, the Commitment of such that Lender and the other interests of such that Lender (the "“originating Lender"”) hereunder and under the other Loan Documents; provided, however, that (i) the originating Lender's ’s obligations under this Agreement shall remain unchanged, the originating Lender shall remain a Lender for all purposes hereof and the other Loan Documents to which such originating Lender is a party, and the Participant may not become a Lender for purposes hereof or for any other of the Loan Documents, (ii) the originating Lender shall remain solely responsible for the performance of such obligations, (iii) the BorrowersCompany, the Issuing Lender, the Swing Line Lender Guarantors and the Administrative Agent shall continue to deal solely and directly with the originating Lender in connection with the originating Lender's ’s rights and obligations under this Agreement and the other Loan Documents, and (iv) no Lender shall transfer or grant any participating interest under which the Participant has rights to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment, consent or waiver would require unanimous consent of the Lenders as described in the first proviso to Section 12.
1Lenders. In the case of any such participation, the Participant shall be entitled to not have any rights under this Agreement, or any of the benefit other Loan Documents (the Participant’s rights against the granting Lender in respect of Sections 4.1, 4.3, 4.4, 4.6 and 12.5 as though it were also a Lender hereundersuch participation being those set forth in the agreement creating or evidencing such participation with such Lender), and all amounts payable by the Company or any Guarantor hereunder shall be determined as if such Lender had not sold such participation; except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, the each Participant shall be deemed to have the right of set-off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement.
(de) Each Lender agrees to take normal and reasonable precautions and exercise due care to maintain the confidentiality of all information identified as “confidential” or “secret” by the Company or any Guarantor and provided to it by the Company or any Guarantor, or by the Administrative Agent on Company’s or any Guarantor’s behalf, under or in connection with this Agreement or any other Loan Document, and neither it nor any of its Affiliates shall use any such information other than in connection with or in enforcement of this Agreement and the other Loan Documents; except to the extent such information (i) was or becomes generally available to the public other than as a result of disclosure by any Lender or the Administrative Agent or any Guarantor, or (ii) was or becomes available on a non-confidential basis from a source other than the Company or any Guarantor, provided that such source is not bound by a confidentiality agreement with the Company or any Guarantor known to the Lender; provided, however, that any Lender may disclose such information (A) at the request or pursuant to any requirement of any Governmental Authority to which the Lender is subject or in connection with an examination of such Lender by any such authority; (B) pursuant to subpoena or other court process; (C) when required to do so in accordance with the provisions of any applicable Requirement of Law; (D) to the extent reasonably required in connection with any litigation or proceeding to which the Administrative Agent, any Lender or their respective Affiliates may be party; (E) to the extent reasonably required in connection with the exercise of any remedy hereunder or under any other Loan Document; (F) to such Lender’s independent auditors and other professional advisors; (G) to any Affiliate of such Lender, or to any Participant or Assignee, actual or potential, provided that such Affiliate, Participant or Assignee agrees to keep such information confidential to the same extent required of the Lenders hereunder, and (H) as to any Lender, as expressly permitted under the terms of any other document or agreement regarding confidentiality to which the Company or any Guarantor is party or is deemed party with such Lender.
(f) Notwithstanding any other provision in this Agreement, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement and any Note the Notes held by it in favor of any Federal Reserve Bank Lender in accordance with Regulation A of the FRB or U.S. Treasury Regulation 31 CFR (S)203.14§203.14, and such Federal Reserve Bank Lender may enforce such pledge or security interest in any manner permitted under applicable law.
Appears in 1 contract
Assignments, Participations, etc. (a) Any Lender Bank may, with the written consent of Culligan, the Administrative Agent, the Issuing Lender and the Swing Line Lender Company (which consents consent shall not be unreasonably withheld)) at all times other than during the existence of an Event of Default, the Agent and the Issuing Bank, if applicable, at any time assign and delegate to one or more Eligible Assignees (provided that no written consent of Culliganthe Company, the Administrative Agent, Agent or the Issuing Lender or the Swing Line Lender Bank, if applicable, shall be required in connection with any assignment and delegation by a Lender Bank to an Eligible Assignee that is an Affiliate of such Lender (so long as such assignment will not result in any increased costs to the Borrowers) or to another LenderBank) (each an "Assignee") all all, or any ratable part of all, of the Loans, the Commitment, the L/C Obligations Commitments and the other rights and obligations of such Lender Bank hereunder, in a minimum Dollar Equivalent amount of U.S. $5,000,000 or10,000,000; provided, if lesshowever, that the entire amount of the Loans, Commitment, L/C Obligations and other rights and obligations of such Lender hereunder; provided that (i) the Borrowers Company and the Administrative Agent may continue to deal solely and directly with such Lender Bank in connection with the interest so assigned to an Assignee until (xi) written notice of such assignment, together with payment instructions, addresses and related information with respect to the Assignee, shall have been given to Culligan the Company and the Administrative Agent by such Lender Bank and the Assignee; (yii) such Lender Bank and the its Assignee shall have delivered to the Borrowers Company and the Administrative Agent an Assignment and Acceptance in the form of Exhibit H E ("Assignment and Acceptance") together with any Note or Notes subject to such assignment; assignment and (ziii) such Lender the assignor Bank or the Assignee shall have has paid to the Administrative Agent a processing fee in the amount of U.S. $3,000; and (ii) concurrently with such assignment, the assignor Lender shall assign to the Assignee a proportionate share of its loans, commitment and other rights and obligations under the Long-Term Credit Agreement3,500.
(b) From and after the date that the Administrative Agent notifies the assignor Lender Bank that it has received (and, to the extent required, and provided its consent and received the consents of Culligan, the Issuing Lender and the Swing Line Lender with respect to) an executed Assignment and Acceptance and payment of the above-referenced processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it and obligations hereunder have been assumed by it pursuant to such Assignment and Acceptance, shall have the rights and obligations of a Lender Bank under the Loan Documents, and (ii) the assignor Lender Bank shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under the Loan Documents.
(c) Within five Business Days after its receipt of notice by the Agent that it has received an executed Assignment and Acceptance and payment of the processing fee, (and provided that it consents to such assignment in accordance with subsection 11.08(a)), the Company shall execute and deliver to the Agent, new Notes evidencing such Assignee's assigned Loans and Commitment and, if the assignor Bank has retained a portion of its Loans and its Commitment, replacement Notes in the principal amount of the Loans retained by the assignor Bank (such Notes to be in exchange for, but not in payment of, the Notes held by such Bank). Immediately upon each Assignee's making its processing fee payment under the Assignment and Acceptance, this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitments of the assigning Bank pro tanto. The Agent shall not deliver any new Notes executed by the Company unless the Agent shall have received the old Notes to be replaced or customary indemnification in favor of the Agent and the Company with respect to lost or destroyed notes. Such old Notes shall be promptly returned to the Company.
(d) Any Lender Bank may at any time sell to one or more commercial banks or other Persons not Affiliates of Culligan the Company (a "Participant") participating interests in any LoanLoans, the Commitment of such Lender that Bank and the other interests of such Lender that Bank (the "originating LenderBank") hereunder and under the other Loan Documents; provided, however, that (i) the originating LenderBank's obligations under this Agreement shall remain unchanged, (ii) the originating Lender Bank shall remain solely responsible for the performance of such obligations, (iii) the Borrowers, the Issuing Lender, the Swing Line Lender Company and the Administrative Agent shall continue to deal solely and directly with the originating Lender Bank in connection with the originating LenderBank's rights and obligations under this Agreement and the other Loan Documents, and (iv) no Lender Bank shall transfer or grant any participating interest under which the Participant has rights to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment, consent or waiver would require unanimous consent of the Lenders Banks as described in the first proviso to Section 1211.
101. In the case of any such participation, the Participant shall be entitled to the benefit of Sections 4.14.01, 4.3, 4.4, 4.6 4.03 and 12.5 11.05 as though it were also a Lender Bank hereunder. Notwithstanding the immediately preceding sentence, and if all amounts outstanding payable by the Company under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, the Participant each other Loan Document shall be deemed to have the right of set-off in respect of its participating interest in amounts owing under this Agreement to the same extent determined as if the amount of its participating interest were owing directly to it as a Lender under this Agreementno such participation had been sold.
(de) Notwithstanding any other provision in this Agreement, any Lender Bank may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement and any the Note held by it in favor of any Federal Reserve Bank in accordance with Regulation A of the FRB or U.S. Treasury Regulation 31 CFR (S)203.14Section 203.14, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law. Notwithstanding any such pledge, such Bank shall remain liable to the Company and the Issuing Bank as if such pledge had not been made.
(f) Notwithstanding anything in this Section 11.09 neither BofA nor the Arranger will begin contacting prospective Banks about a potential assignment of their rights hereunder until the earlier of (i) April 20, 1997 or (ii) the Company's public disclosure of its contemplated recapitalization.
Appears in 1 contract
Samples: Multicurrency Credit Agreement (Briggs & Stratton Corp)
Assignments, Participations, etc. (a) Any Lender Bank may, with the written consent of Culligan, the Administrative Borrowers and the Agent, the Issuing Lender and the Swing Line Lender (which consents shall not be unreasonably withheld), at any time assign and delegate to one or more Eligible Assignees (provided that no written consent of Culligan, the Administrative Agent, the Issuing Lender or the Swing Line Lender Borrowers shall be required in connection with any assignment and delegation by a Lender Bank to an Eligible Assignee that is an a Bank Affiliate of such Lender (so long as such assignment will not result in any increased costs to the Borrowers) or to another LenderBank) (each an "Assignee") all all, or any ratable part of all, of the Loans, the Commitment, the L/C Obligations Commitment and the other rights and obligations of such Lender Bank hereunder; provided, however, that any such assignment to an Eligible Assignee shall be in a minimum Dollar Equivalent amount of U.S. equal to $5,000,000 orand provided, if lessfurther, that the Borrowers, the entire amount of Issuing Bank, the Loans, Commitment, L/C Obligations and other rights and obligations of such Lender hereunder; provided that (i) the Borrowers Swingline Bank and the Administrative Agent may continue to deal solely and directly with such Lender Bank in connection with the interest so assigned to an Assignee until (xi) written notice of such assignment, together with payment instructions, addresses and related information with respect to the Assignee, shall have been given to Culligan the Borrowers and the Administrative Agent by such Lender Bank and the Assignee; (yii) such Lender Bank and the its Assignee shall have delivered to the Borrowers and the Administrative Agent an Assignment and Acceptance in the form of Exhibit H J ("Assignment and Acceptance") together with any Note or Notes subject to such assignment); and (ziii) such Lender in the case of any assignment to an Assignee which is not already a Bank, the assignor bank or the Assignee shall have has paid to the Administrative Agent a processing fee in the amount of U.S. $3,000; and (ii) concurrently with such assignmentprovided, still further, that any assignment hereunder must include an equal percentage of the assignor Lender shall assign to the Assignee a proportionate share of its loans, commitment Bank's Commitment and other rights and obligations under the Long-Term Credit AgreementCommitted Loans.
(b) From and after the date that the Administrative Agent notifies the assignor Lender Bank that it has received the requirements of paragraph (and, to the extent required, provided its consent and received the consents of Culligan, the Issuing Lender and the Swing Line Lender with respect toa) an executed Assignment and Acceptance and payment of the above-referenced processing feeabove are satisfied, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it and obligations hereunder have been assumed by it pursuant to such Assignment and Acceptance, shall have the rights and obligations of a Lender Bank under the Loan Documents, and (ii) the assignor Lender Bank shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under the Loan Documents.
(c) Any Lender may at any time sell to one or more commercial banks or other Persons not Affiliates of Culligan (a "Participant") participating interests in any Loan, the Commitment of such Lender and the other interests of such Lender (the "originating Lender") hereunder and under the other Loan Documents; provided, however, that (i) the originating Lender's obligations under this Agreement shall remain unchanged, (ii) the originating Lender shall remain solely responsible for the performance of such obligations, (iii) the Borrowers, the Issuing Lender, the Swing Line Lender and the Administrative Agent shall continue to deal solely and directly with the originating Lender in connection with the originating Lender's rights and obligations under this Agreement and the other Loan Documents, and (iv) no Lender shall transfer or grant any participating interest under which the Participant has rights to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment, consent or waiver would require unanimous consent of the Lenders as described in the first proviso to Section 12.
1. In the case of any such participation, the Participant shall be entitled to the benefit of Sections 4.1, 4.3, 4.4, 4.6 and 12.5 as though it were also a Lender hereunder, and if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, the Participant shall be deemed to have the right of set-off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement.
(d) Notwithstanding any other provision in this Agreement, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement and any Note held by it in favor of any Federal Reserve Bank in accordance with Regulation A of the FRB or U.S. Treasury Regulation 31 CFR (S)203.14, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law.and
Appears in 1 contract
Samples: Credit Agreement (Us Industries Inc)
Assignments, Participations, etc. (a) Any Lender may, with the written consent of Culligan, the Administrative Agent, the Issuing Lender and the Swing Line Lender (which consents shall not be unreasonably withheld), at any time assign and delegate to one or more Eligible Assignees (provided that no written consent of Culligan, the Administrative Agent, the Issuing Lender or the Swing Line Lender shall be required in connection with any assignment and delegation by a Lender to an Eligible Assignee that is an Affiliate of such Lender (so long as such assignment will not result in any increased costs to the Borrowers) or to another Lender) (each an "Assignee") all all, or any ratable part of all, of the Loans, the CommitmentCommitments, the L/C Obligations and the other rights and obligations of such Lender hereunder, in a minimum Dollar Equivalent amount of U.S. $5,000,000 orprovided, if lesshowever, that the entire amount of the Loans, Commitment, L/C Obligations and other rights and obligations of such Lender hereunder; provided that (i) the Borrowers Borrower and the Administrative Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (xi) written notice of such assignment, together with payment instructions, addresses and related information with respect to the Assignee, shall have been given provided to Culligan Borrower and the Administrative Agent by such Lender and the Assignee; (yii) such Lender and the its Assignee shall have delivered to the Borrowers Borrower and the Administrative Agent an Assignment and Acceptance in the form of Exhibit H C ("Assignment and Acceptance") together with any Note or Notes subject to such assignment; and (z) such Lender or the Assignee shall have paid to the Administrative Agent a processing fee in the amount of U.S. $3,000; and (ii) concurrently with such assignment, the assignor Lender shall assign to the Assignee a proportionate share of its loans, commitment and other rights and obligations under the Long-Term Credit Agreement.
(b) From and after the date that the Administrative Agent notifies the assignor Lender that it has received (and, to the extent required, and provided its consent and received the consents of Culligan, the Issuing Lender and the Swing Line Lender with respect to) an executed Assignment and Acceptance and payment of the above-referenced processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it and obligations hereunder have been assumed by it pursuant to such Assignment and Acceptance, shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assignor Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under the Loan Documents.
(c) Any Lender may at any time sell to one or more commercial banks or other Persons not Affiliates Within five Business Days after its receipt of Culligan (a "Participant") participating interests in any Loannotice by the Agent that it has received an executed Assignment and Acceptance, the Commitment Borrower shall execute and deliver to the Agent, new Notes evidencing such Assignee's assigned Loans and, if the assignor Lender has retained a portion of such Lender and its Loans, replacement Notes in the other interests principal amount of such the Loans retained by the assignor Lender (the "originating Lender") hereunder and under the other Loan Documents; providedsuch Notes to be in exchange for, however, that (i) the originating Lender's obligations under this Agreement shall remain unchanged, (ii) the originating Lender shall remain solely responsible for the performance of such obligations, (iii) the Borrowersbut not in payment of, the Issuing Notes held by such Lender, ). Immediately upon each Assignee's execution and proper delivery of the Swing Line Lender Assignment and the Administrative Agent shall continue to deal solely and directly with the originating Lender in connection with the originating Lender's rights and obligations under this Agreement and the other Loan Documents, and (iv) no Lender shall transfer or grant any participating interest under which the Participant has rights to approve any amendment to, or any consent or waiver with respect toAcceptance, this Agreement or any other Loan Document, except to the extent such amendment, consent or waiver would require unanimous consent of the Lenders as described in the first proviso to Section 12.
1. In the case of any such participation, the Participant shall be entitled to the benefit of Sections 4.1, 4.3, 4.4, 4.6 and 12.5 as though it were also a Lender hereunder, and if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, the Participant shall be deemed to have the right of set-off in respect of its participating interest in amounts owing under this Agreement be amended to the same extent as if extent, but only to the amount of its participating interest were owing directly extent, necessary to it as a Lender under this Agreement.
(d) Notwithstanding any other provision in this Agreement, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement and any Note held by it in favor of any Federal Reserve Bank in accordance with Regulation A reflect the addition of the FRB or U.S. Treasury Regulation 31 CFR (S)203.14, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable lawAssignee.
Appears in 1 contract
Samples: Credit Agreement (Abc Naco Inc)
Assignments, Participations, etc. (a) Any Lender mayThe provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns permitted hereby, with except that the Company may not assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of Culliganeach Lender and no Lender may assign or otherwise transfer any of its rights or obligations hereunder except
(1) to an Eligible Assignee in accordance with the provisions of subsection (b) of this Section,
(2) by way of participation in accordance with the provisions of subsection (d) of this Section, or
(3) by way of pledge or assignment of a security interest subject to the restrictions of clause (f) of this Section. Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby, Participants to the extent provided in clause (d) of this Section and, to the extent expressly contemplated hereby, the Administrative AgentIndemnitees) any legal or equitable right, the Issuing remedy or claim under or by reason of this Agreement.
(b) Any Lender and the Swing Line Lender (which consents shall not be unreasonably withheld), may at any time assign and delegate to one or more Eligible Assignees (provided that no written consent of Culligan, the Administrative Agent, the Issuing Lender or the Swing Line Lender shall be required in connection with any assignment and delegation by a Lender to an Eligible Assignee that is an Affiliate of such Lender (so long as such assignment will not result in any increased costs to the Borrowers) or to another Lender) (each an "Assignee") all or any part a portion of its rights and obligations under this Agreement (including all or a portion of its Commitment and the LoansLoans (including for purposes of this clause (b), the Commitment, the participations in L/C Obligations and in Swing Line Advances) at the other time owing to it); provided that:
(1) each Lender (including each Eligible Assignee) must retain a Commitment of not less than $5,000,000 after giving effect to such assignment unless its Commitment has been reduced to zero by such assignment;
(2) except in the case of an assignment of the entire remaining amount of the assigning Lender’s Commitment and the Loans at the time owing to it or in the case of an assignment to a Lender or an Affiliate of a Lender or an Approved Fund with respect to a Lender, the aggregate amount of the Commitment (which for this purpose includes Loans outstanding thereunder) subject to each such assignment, determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent or, if the “Trade Date” is specified in the Assignment and Assumption, as of the Trade Date, shall not be less than $1,000,000 unless each of the Administrative Agent and, so long as no Event of Default has occurred and is continuing, the Company otherwise consents;
(3) 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 Loans or the Commitment assigned, except that this clause (3) shall not apply to rights in respect of Swing Line Advances in the case of an assignment by a Lender that is also the Swing Line Lender;
(4) any assignment of a Commitment must be approved by the Administrative Agent unless the Person that is the proposed assignee is itself a Lender (whether or not the proposed assignee would otherwise qualify as an Eligible Assignee); and
(5) 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. Subject to acceptance and recording thereof by the Administrative Agent pursuant to clause (c) of this Section, from and after the effective date specified in each Assignment and Assumption, the Eligible Assignee thereunder shall be a party to this Agreement 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 hereundershall cease to be a party hereto but shall continue to be entitled to the benefits of Sections 3.7, in a minimum Dollar Equivalent amount 3.9, 3.10, 10.4 and 10.5 with respect to facts and circumstances occurring prior to the effective date of U.S. $5,000,000 or, if lesssuch assignment). Upon request, the entire amount Company (at its expense) shall execute and deliver a Note to the assignee Lender. Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this subsection 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 clause (d) of this Section.
(c) The Administrative Agent, acting solely for this purpose as an agent of the LoansCompany, Commitmentshall maintain at the Administrative Agent’s office a copy of each Assignment and Assumption delivered to it and a register for the recordation of the names and addresses of the Lenders, and the Commitments of, and principal amounts of the Loans and L/C Obligations owing to, each Lender pursuant to the terms hereof from time to time (the “Register”). The entries in the Register shall be conclusive, and other rights and obligations of such Lender hereunder; provided that (i) the Borrowers and Company, the Administrative Agent and the Lenders may treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available for inspection by the Company and any Lender, at any reasonable time and from time to time upon reasonable prior notice.
(d) Any Lender may at any time, without the consent of, or notice to, the Company or the Administrative Agent, sell participations to any Person (other than a natural person or the Company or any of the Company’s Affiliates or Subsidiaries ) (each, a “Participant”) in all or a portion of such Lender’s rights or obligations under this Agreement (including all or a portion of its Commitment or the Loans (including such Lender’s participations in L/C Obligations or Swing Line Advances) owing to it); provided that:
(1) such Lender’s obligations under this Agreement shall remain unchanged;
(2) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations; and
(3) the Company, the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, waiver or other modification described in clauses (a), (b) or (c) of the first proviso to Section 10.1 that directly affects such Participant. Subject to clause (e) of this Section, the Company agrees that each Participant shall be entitled to the benefits of Sections 3.7, 3.9 and 3.10 to the same extent as if it were a Lender and had acquired its interest so assigned by assignment pursuant to an Assignee until clause (xb) written notice of this Section. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 10.10 as though it were a Lender, provided such assignment, together with Participant agrees to be subject to Section 2.8 as though it were a Lender.
(e) A Participant shall not be entitled to receive any greater payment instructions, addresses and related information under Sections 3.7 or 3.9 than the applicable Lender would have been entitled to receive with respect to the Assigneeparticipation sold to such Participant, unless the sale of the participation to such Participant is made with the Company’s prior written consent. A Participant that would be a Foreign Lender if it were a Lender shall have been given to Culligan and the Administrative Agent by such Lender and the Assignee; (y) such Lender and the Assignee shall have delivered not be entitled to the Borrowers and benefits of Section 3.7 unless the Administrative Agent an Assignment and Acceptance in Company is notified of the form of Exhibit H ("Assignment and Acceptance") together with any Note or Notes subject participation sold to such assignment; Participant and (z) such Lender or Participant agrees, for the Assignee shall have paid benefit of the Company, to the Administrative Agent comply with Section 10.14 as though it were a processing fee in the amount of U.S. $3,000; and (ii) concurrently with such assignment, the assignor Lender shall assign to the Assignee a proportionate share of its loans, commitment and other rights and obligations under the Long-Term Credit AgreementLender.
(b) From and after the date that the Administrative Agent notifies the assignor Lender that it has received (and, to the extent required, provided its consent and received the consents of Culligan, the Issuing Lender and the Swing Line Lender with respect to) an executed Assignment and Acceptance and payment of the above-referenced processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights hereunder have been assigned to it and obligations hereunder have been assumed by it pursuant to such Assignment and Acceptance, shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assignor Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under the Loan Documents.
(cf) Any Lender may at any time sell to one pledge or more commercial banks or other Persons not Affiliates of Culligan (a "Participant") participating interests in any Loan, the Commitment of such Lender and the other interests of such Lender (the "originating Lender") hereunder and under the other Loan Documents; provided, however, that (i) the originating Lender's obligations under this Agreement shall remain unchanged, (ii) the originating Lender shall remain solely responsible for the performance of such obligations, (iii) the Borrowers, the Issuing Lender, the Swing Line Lender and the Administrative Agent shall continue to deal solely and directly with the originating Lender in connection with the originating Lender's rights and obligations under this Agreement and the other Loan Documents, and (iv) no Lender shall transfer or grant any participating interest under which the Participant has rights to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment, consent or waiver would require unanimous consent of the Lenders as described in the first proviso to Section 12.
1. In the case of any such participation, the Participant shall be entitled to the benefit of Sections 4.1, 4.3, 4.4, 4.6 and 12.5 as though it were also a Lender hereunder, and if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, the Participant shall be deemed to have the right of set-off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement.
(d) Notwithstanding any other provision in this Agreement, any Lender may at any time create assign a security interest in, or pledge, in all or any portion of its rights under and interest in this Agreement and (including under its Note, if any) to secure obligations of such Lender, including any Note held by it in favor of any pledge or assignment to secure obligations to a Federal Reserve Bank in accordance with Regulation A of the FRB or U.S. Treasury Regulation 31 CFR (S)203.14, and such Federal Reserve Bank may enforce Bank; provided that no such pledge or security interest assignment shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
(g) Notwithstanding anything to the contrary contained herein, if at any time Bank of America assigns all of its Commitment and Loans pursuant to clause (b) of this Section, Bank of America may do one or both of the following:
(1) upon 30 days’ notice to the Company and the Lenders, resign as L/C Issuer; or
(2) upon 30 days’ notice to the Company, resign as Swing Line Lender. In the event of any such resignation as L/C Issuer or Swing Line Lender, the Company may appoint from among the Lenders a successor L/C Issuer or Swing Line Lender hereunder; provided, however, that no failure by the Company to appoint any such successor shall affect the resignation of Bank of America as L/C Issuer or Swing Line Lender, as the case may be. If Bank of America resigns as L/C Issuer, it shall retain all the rights and obligations of the L/C Issuer hereunder with respect to all Letters of Credit outstanding as of the effective date of its resignation as L/C Issuer and all L/C Obligations with respect thereto (including the right to require the Lenders to make Base Rate Loans or fund risk participations in any manner permitted under applicable lawUnreimbursed Amounts pursuant to Section 2.9(c)). If Bank of America resigns as Swing Line Lender, it shall retain all the rights of the Swing Line Lender provided for hereunder with respect to Swing Line Advances made by it and outstanding as of the effective date of such resignation, including the right to require the Lenders to fund risk participations in outstanding Swing Line Advances pursuant to Section 2.1(h)(3).
Appears in 1 contract
Assignments, Participations, etc. (a1) Any Lender maymay at any time, with the written consent of Culliganthe Agent and, but only so long as there does not exist an Event of Default, the Administrative Agent, the Issuing Lender and the Swing Line Lender Company (which consents consent shall not be unreasonably withheldwithheld by the Company), at any time assign and delegate to one or more Eligible Assignees (provided that no written consent of Culligan, the Administrative Agent, the Issuing Lender or the Swing Line Lender shall be required in connection with any assignment and delegation by a Lender to an Eligible Assignee that is an Affiliate of such Lender (so long as such assignment will not result in any increased costs to the Borrowers) or to another Lender) financial institutions (each an "“Assignee"”) all all, or any ratable part of all, of the Loans, the Commitment, the L/C Obligations Loans and the other rights and obligations of such Lender hereunder, hereunder in a minimum Dollar Equivalent amount of U.S. $5,000,000 or5,000.000.00; provided, if lesshowever, that the entire amount of the Loans, Commitment, L/C Obligations and other rights and obligations of such Lender hereunder; provided that (i) the Borrowers Company and the Administrative Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (xi) written notice of such assignment, together with payment instructions, addresses and related information with respect to the Assignee, shall have been given to Culligan the Company and the Administrative Agent by such Lender and the Assignee; (yii) such Lender and the its Assignee shall have delivered to the Borrowers Company and the Administrative Agent an Assignment and Acceptance in the form of Exhibit H ("Assignment and Acceptance") together with any Note or Notes subject to such assignmentAssumption Agreement; and (ziii) such Lender or the Assignee shall have has paid to the Administrative Agent a processing fee in the amount of U.S. $3,000; and (ii) concurrently with such assignment, the assignor Lender shall assign to the Assignee a proportionate share of its loans, commitment and other rights and obligations under the Long-Term Credit Agreement.
(b) 3,500.00. From and after the date that the Administrative Agent notifies the assignor Lender that it has received (and, to the extent required, provided its consent and received the consents of Culligan, the Issuing Lender and the Swing Line Lender with respect to) an executed Assignment and Acceptance and payment of the above-referenced processing feeAssumption Agreement, (iy) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned to it and obligations hereunder have been assumed by it pursuant to such Assignment and AcceptanceAssumption Agreement, shall have the rights and obligations of a Lender under the Loan Documents, and (iiz) the assignor Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and AcceptanceAssumption Agreement, relinquish its rights and be released from its obligations under the Loan Documents. Upon the effective date of such assignment, this Agreement and the other Loan Documents shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Percentage Share arising therefrom.
(c2) Any Lender may at any time sell to one or more commercial banks financial institutions or other Persons not Affiliates of Culligan (each a "“Participant"”) participating interests in any LoanLoans, the Commitment funding commitment of such that Lender and the other interests of such that Lender (the "“originating Lender"”) hereunder and under the other Loan Documents; provided, however, that (i) the originating Lender's ’s obligations under this Agreement shall remain unchanged, (ii) the originating Lender shall remain solely responsible for the performance of such obligations, (iii) the Borrowers, the Issuing Lender, the Swing Line Lender Company and the Administrative Agent shall continue to deal solely and directly with the originating Lender in connection with the originating Lender's ’s rights and obligations under this Agreement and the other Loan Documents, and (iv) no following such sale that Lender shall transfer continue to hold for its own account a Percentage Share of the Aggregate Credit Limit of not less than $5,000,000.00 and (v) the terms of any documentation governing such participation shall not provide for such Participant to have any voting rights on any amendments to the Credit Agreement or grant other Loan Documents other than any participating interest under such amendment which the Participant has rights purports to approve any amendment to(A) forgive principal of, or interest on any consent Loan, (B) postpone any date fixed for the payment of principal of or waiver with respect tointerest on, any Loan, (C) decrease the rates at which interest or fees are payable under the Credit Agreement or (D) release all or substantially all of the Collateral.
(3) Notwithstanding any other provision contained in this Agreement or any other Loan Document, except Document to the extent such amendment, consent or waiver would require unanimous consent of the Lenders as described in the first proviso to Section 12.
1. In the case of any such participation, the Participant shall be entitled to the benefit of Sections 4.1, 4.3, 4.4, 4.6 and 12.5 as though it were also a Lender hereunder, and if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, the Participant shall be deemed to have the right of set-off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement.
(d) Notwithstanding any other provision in this Agreementcontrary, any Lender may at any time create a security interest in, or pledge, assign all or any portion of its rights under and interest in this Agreement and any Note the Loans held by it in favor of to any Federal Reserve Bank in accordance with Lender or the United States Treasury as collateral security pursuant to Regulation A of the FRB or U.S. Treasury Regulation 31 CFR (S)203.14, Board of Governors of the Federal Reserve System and any Operating Circular issued by such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable lawLender.
Appears in 1 contract
Samples: Credit Agreement (Osi Systems Inc)
Assignments, Participations, etc. (a) Any Lender may, with the written consent of Culligan, the Administrative Borrowers at all times other than during the existence of an Event of Default and the Agent, the Issuing Lender and the Swing Line Lender (which consents shall not be unreasonably withheld), at any time assign and delegate to one or more Eligible Assignees (provided that no written consent of Culligan, the Administrative Agent, the Issuing Lender Borrowers or the Swing Line Lender Agent shall be required in connection with any assignment and delegation by a Lender to an Eligible Assignee that is an a Lender Affiliate of such Lender (so long as such assignment will not result in any increased costs to the Borrowers) or to another Lender) (each an "Assignee") all all, or any ratable part of all, of the Loans, the Commitment, the L/C Obligations Commitments and the other rights and obligations of such Lender hereunder, in a minimum Dollar Equivalent amount of U.S. $5,000,000 or, if less, the entire amount of the lesser of $5,000,000 or such Lender's entire remaining interest in the Loans, Commitment, L/C Obligations the Commitments and the other rights and obligations of such Lender hereunder; provided provided, however, that (i) the Borrowers and the Administrative Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (xA) written notice of such assignment, together with payment instructions, addresses and related information with respect to the Assignee, shall have been given to Culligan the Borrowers and the Administrative Agent by such Lender and the Assignee; (yB) such Lender and the its Assignee shall have delivered to the Borrowers and the Administrative Agent an Assignment and Acceptance in the form of Exhibit H E ("Assignment and Acceptance") together with any Note or Notes subject to such assignment; assignment and (zC) such the assignor Lender or the Assignee shall have has paid to the Administrative Agent a processing fee in the amount of U.S. $3,000; and (ii) concurrently with such assignment, the assignor Lender shall assign to the Assignee a proportionate share of its loans, commitment and other rights and obligations under the Long-Term Credit Agreement2500.
(b) From and after the date that the Administrative Agent notifies the assignor Lender that it has received (and, to the extent required, provided its consent and received the consents of Culligan, the Issuing Lender and the Swing Line Lender with respect to) an executed Assignment and Acceptance and payment of the above-referenced processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it and obligations hereunder have been assumed by it pursuant to such Assignment and Acceptance, shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assignor Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under the Loan Documents.
(c) Within five Business Days after its receipt of notice by the Agent that it has received an executed Assignment and Acceptance and payment of the processing fee, the Borrowers shall execute and deliver to the Agent, new Notes evidencing such Assignee's assigned Loans and Commitment and, if the assignor Lender has retained a portion of its Loans and its Commitment, replacement Notes in the principal amount of the Loans retained by the assignor Lender (such Notes to be in exchange for, but not in payment of, the Notes held by such Lender). Immediately upon each Assignee's making its processing fee payment under the Assignment and Acceptance, this Agreement, shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitments of the assigning Lender pro tanto.
(d) Any Lender may at any time sell to one or more commercial banks or other Persons not Affiliates of Culligan the Borrowers (a "Participant") participating interests in any LoanLoans, the Commitment of such that Lender and the other interests of such that Lender (the "originating Lender") hereunder and under the other Loan Documents; provided, however, that (i) the originating Lender's obligations under this Agreement shall remain unchanged, (ii) the originating Lender shall remain solely responsible for the performance of such obligations, (iii) the Borrowers, the Issuing Lender, the Swing Line Lender Borrowers and the Administrative Agent shall continue to deal solely and directly with the originating Lender in connection with the originating Lender's rights and obligations under this Agreement and the other Loan Documents, and (iv) no Lender shall transfer or grant any participating interest under which the Participant has rights to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment, consent or waiver would require unanimous consent of the Lenders as described in the first proviso to Section 12.the
101. In the case of any such participation, the Participant shall be entitled to the benefit of Sections 4.13.01, 4.3, 4.4, 4.6 3.03 and 12.5 10.05 as though it were also a Lender hereunder, and if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, the each Participant shall be deemed to have the right of set-off setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement.
(de) Each Lender agrees to take normal and reasonable precautions and exercise due care to maintain the confidentiality of all information identified as "confidential" by the Borrowers and provided to it by the Borrowers or any Subsidiary of the Borrowers, or by the Agent on such Borrower's or Subsidiary's behalf, in connection with this Agreement or any other Loan Document, and neither it nor any of its Affiliates shall use any such information for any purpose or in any manner other than pursuant to the terms contemplated by this Agreement; except to the extent such information (i) was or becomes generally available to the public other than as a result of a disclosure by the Lender, or (ii) was or becomes available on a nonconfidential basis from a source other than the Borrowers, provided that such source is not bound by a confidentiality agreement with the Borrowers known to the Lender; provided further, however, that any Lender may disclose such information (A) at the request or pursuant to any requirement of any Governmental Authority to which the Lender is subject or in connection with an examination of such Lender by any such authority; (B) pursuant to subpoena or other court process; (C) when required to do so in accordance with the provisions of any applicable Requirement of Law; and (D) to such Lender's independent auditors and other professional advisors. Notwithstanding the foregoing, the Borrowers authorizes each Lender to disclose to any Participant or Assignee (each, a "Transferee") and to any prospective Transferee, such financial and other information in such Lender's possession concerning the Borrowers or its Subsidiaries which has been delivered to Agent or the Lenders pursuant to this Agreement or which has been delivered to the Agent or the Lenders by the Borrowers in connection with the Lenders' credit evaluation of the Borrowers prior to entering into this Agreement; provided that, unless otherwise agreed by the Borrowers, such Transferee agrees in writing to such Lender to keep such information confidential to the same extent required of the Lenders hereunder. The Borrowers acknowledge that from time to time financial advisory, investment banking and other services may be offered or provided to the Borrowers, or one or more of its Affiliates (in connection with this Agreement or otherwise) by any Lender or by one or more Subsidiaries or Affiliates of such Lender and the Borrowers hereby authorize each Lender to share any information delivered to such Lender by the Borrowers and their Affiliates pursuant to this Agreement, or in connection with the decision of such Lender to enter into this Agreement, to any such Subsidiary or Affiliate of such Lender, it being understood that any such Subsidiary or Affiliate of any Lender receiving such information shall be bound by any obligation of confidentiality as if it were a Lender hereunder. Such Authorization shall survive the repayment of the Loans and other Obligations and the termination of the Commitments.
(f) Notwithstanding any other provision contained in this AgreementAgreement or any other Loan Document to the contrary, any Lender may at any time create a security interest in, or pledge, assign all or any portion of its rights under and interest in this Agreement and any Note the Loans or Notes held by it in favor of to any Federal Reserve Bank in accordance with or the United States Treasury as collateral security pursuant to Regulation A of the FRB or U.S. Treasury Regulation 31 CFR (S)203.14, Board of Governors of the Federal Reserve System and any Operating Circular issued by such Federal Reserve Bank may enforce Bank, provided that any payment in respect of such pledge assigned Loans or security interest Notes made by the Borrowers to or for the account of the assigning or pledging Lender in accordance with the terms of this Agreement shall satisfy the Borrowers' obligations hereunder in respect to such assigned Loans or Notes to the extent of such payment. No such assignment shall release the assigning Lender from its obligations hereunder.
(g) Upon the assignment pursuant to this Section 10.08 of all, or any manner permitted under applicable lawratable part of, the Loans, the Commitments and the other rights and obligations of a Lender to an Assignee, such Assignee shall become a party to the Intercreditor Agreement and be bound by all terms and conditions contained therein.
Appears in 1 contract
Assignments, Participations, etc. (a1) Any Lender may, with With the prior written consent of Culligan, the Administrative AgentAgent and, the Issuing Lender but only if there has not occurred and the Swing Line Lender (which is continuing an Event of Default or Potential Default, MAC, such consents shall not to be unreasonably withheld)withheld or delayed, any Lender may at any time assign and delegate to one or more Eligible Assignees (provided that no written consent of Culligan, MAC or the Administrative Agent, the Issuing Lender or the Swing Line Lender Agent shall be required in connection with any assignment and delegation by a Lender to an Eligible Assignee that is an Affiliate of such Lender (so long as such assignment will not result in any increased costs to the Borrowers) or to another LenderLender or its Affiliate) (each an "“Assignee"”) all or any part of such Lender’s rights and obligations under this Agreement (including all or a portion of the Loans, Loans at the Commitment, the L/C Obligations time owing to it) and the other rights and obligations of Obligations held by such Lender hereunder, in a minimum Dollar Equivalent amount of U.S. $5,000,000 or1,000,000 (or (A) if such Assignee is another Lender or an Affiliate of a Lender, $1,000,000, or such lesser amount as agreed by the Administrative Agent; and (B) if lesssuch Lender’s Percentage Share of the Term Loan or the Interim Loan is less than $1,000,000, one hundred percent (100%) thereof); provided, however, that MAC, the entire amount of the Loans, Commitment, L/C Obligations and other rights and obligations of such Lender hereunder; provided that (i) the Borrowers Borrower and the Administrative Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (xi) written notice of such assignment, together with payment instructions, addresses and related information with respect to the Assignee, shall have been given to Culligan the Borrower and the Administrative Agent by such Lender and the Assignee; (yii) such Lender and the its Assignee shall have delivered to the Borrowers Borrower and the Administrative Agent an Assignment and Acceptance in the form of Exhibit H ("Assignment and Acceptance") together with any Note or Notes subject to such assignment; Agreement and (ziii) such Lender or the Assignee shall have has paid to the Administrative Agent a processing fee in the amount of U.S. $3,000; and 3,500 (ii) concurrently with treating multiple, contemporaneous assignments by related Lenders as a single assignment for purposes of such assignment, the assignor Lender shall assign to the Assignee a proportionate share of its loans, commitment and other rights and obligations under the Long-Term Credit Agreementrequirement).
(bA) From and after the date that the Administrative Agent notifies the assignor Lender and the Borrower that it has received (and, to the extent required, provided its consent and received the consents of Culligan, the Issuing Lender and the Swing Line Lender with respect to) an executed Assignment and Acceptance Agreement and payment of the above-referenced processing fee, : (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned to it and obligations hereunder have been assumed by it pursuant to such Assignment and AcceptanceAcceptance Agreement, shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assignor Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and AcceptanceAcceptance Agreement, relinquish its rights and be released from its obligations under the Loan DocumentsDocuments (but shall be entitled to indemnification as otherwise provided in this Agreement with respect to any events occurring prior to the assignment) and (iii) this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Percentage Shares resulting therefrom.
(c2) Within five Business Days after its receipt of notice by the Administrative Agent that it has received an executed Assignment and Acceptance Agreement and payment of the processing fee (which notice shall also be sent by the Administrative Agent to each Lender), the Borrower shall, if requested by the Assignee, execute and deliver to the Administrative Agent, a new Note evidencing such Assignee’s Percentage Share of the Term Loan or the Interim Loan, as applicable.
(3) Any Lender may at any time sell to one or more commercial banks or other Persons not Affiliates of Culligan the Borrower (a "“Participant"”) participating interests in any the Term Loan, the Commitment of such Lender Interim Loan and the other interests of such that Lender (the "originating “Originating Lender"”) hereunder and under the other Loan Documents; provided, however, that (i) the originating Lender's ’s obligations under this Agreement shall remain unchanged, (ii) the originating Lender shall remain solely responsible for the performance of such obligations, and (iii) the Borrowers, the Issuing Lender, the Swing Line Lender Borrower and the Administrative Agent shall continue to deal solely and directly with the originating Lender in connection with the originating Lender's ’s rights and obligations under this Agreement and the other Loan Documents, and (iv) no Lender shall transfer or grant any participating interest under which the Participant has rights to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment, consent or waiver would require unanimous consent of the Lenders as described in the first proviso to Section 12.
1. In the case of any such participation, the Participant shall be entitled to the benefit of Sections 4.12.5, 4.3, 4.4, 4.6 2.6 and 12.5 2.7 (and subject to the burdens of Sections 2.8 and 11.8 above) as though it were also a Lender hereunderthereunder, and if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, the each Participant shall be deemed to have the right of set-off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement, and Section 11.10 of this Agreement shall apply to such Participant as if it were a Lender party hereto.
(d4) Notwithstanding any other provision contained in this AgreementAgreement or any other Loan Document to the contrary, any Lender may at any time create a security interest in, or pledge, assign all or any portion of its rights under and interest in this Agreement and any Note the Loans held by it in favor of to any Federal Reserve Bank in accordance with Lender or the United States Treasury as collateral security pursuant to Regulation A of the FRB or U.S. Treasury Regulation 31 CFR (S)203.14, Board of Governors of the Federal Reserve System and any “Operating Circular” issued by such Federal Reserve Bank may enforce Lender; provided that any payment in respect of such pledge assigned Loans made by the Borrower to or security interest for the account of the assigning and/or pledging Lender in any manner permitted under applicable lawaccordance with the terms of this Agreement shall satisfy the Borrower’s obligations hereunder in respect to such assigned Loans to the extent of such payment. No such assignment shall release the assigning Lender from its obligations hereunder.
Appears in 1 contract
Samples: Credit Agreement (Macerich Co)
Assignments, Participations, etc. (a) Any Lender may, with the written consent of Culligan, the Administrative Agent, the Issuing Lender and the Swing Line Lender (which consents shall not be unreasonably withheld), at any time assign and delegate to one or more Eligible Assignees (provided that no written consent of Culligan, the Administrative Agent, the Issuing Lender or the Swing Line Lender shall be required in connection with any assignment and delegation by a Lender to an Eligible Assignee that is an Affiliate of such Lender (so long as such assignment will not result in any increased costs to the Borrowers) or to another Lender) (each an "Assignee") all or any part of the Loans, the Commitment, the L/C Obligations Commitments and the other rights and obligations of such Lender hereunder, provided, however, that (x) the aggregate principal amount of the Commitment -------- ------- - assigned by any Lender to someone other than another Lender shall be in a minimum Dollar Equivalent amount of U.S. $5,000,000 or, (or if less, the entire Commitment then held by such Lender) and (y) after giving effect to any such assignment by a Lender, the - aggregate amount of the Loans, Commitment, L/C Commitments and/or LC Obligations and other rights and obligations of held by such assigning Lender is at least $5,000,000 (unless such Lender hereunder; provided that (i) has assigned the Borrowers entire Commitment and LC Obligations then held by it). The Borrower and the Administrative Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (xi) written - notice of such assignment, together with payment instructions, addresses and related information with respect to the Assignee, shall have been given to Culligan the Borrower and the Administrative Agent by such Lender and the Assignee; (yii) such -- Lender and the its Assignee shall have delivered to the Borrowers Borrower and the Administrative Agent an Assignment and Acceptance in a form satisfactory to the form of Exhibit H Administrative Agent ("Assignment and Acceptance") together with any Note or Notes subject to such assignment; and (ziii) such the assignor Lender ------------------------- --- or the Assignee shall have has paid to the Administrative Agent a processing fee in the amount of U.S. $3,000; and (ii) concurrently with such assignment, the assignor Lender shall assign to the Assignee a proportionate share of its loans, commitment and other rights and obligations under the Long-Term Credit Agreement3,500.
(b) From and after the date that the Administrative Agent notifies the assignor Lender that it has received (and, to the extent required, and provided its consent and received the consents of Culligan, the Issuing Lender and the Swing Line Lender with respect to) an executed Assignment and Acceptance and payment of the above-referenced processing fee, (i) the Assignee thereunder shall be a party hereto and, to the - extent that rights and obligations hereunder have been assigned to it and obligations hereunder have been assumed by it pursuant to such Assignment and Acceptance, shall have the rights and obligations of a Lender under the Loan Credit Documents, and (ii) the assignor Lender shall, to the -- extent that rights and obligations hereunder and under the other Loan Credit Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under the Loan Credit Documents.
(c) Immediately upon each Assignee's making its processing fee payment under the Assignment and Acceptance, this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitments of the assigning Lender pro tanto. --- -----
(d) Any Lender may at any time sell to one or more commercial banks or other Persons not Affiliates of Culligan the Borrower (a "Participant") participating ----------- interests in any LoanLC Obligations, the Commitment of such that Lender and the other interests of such that Lender (the "originating Originating Lender") hereunder and under the ------------------ other Loan Credit Documents; provided, however, that (i) the originating Lender's -------- ------- - obligations under this Agreement shall remain unchanged, (ii) the originating -- Lender shall remain solely responsible for the performance of such obligations, (iii) the Borrowers, the Issuing Lender, the Swing Line Lender Borrower and the Administrative Agent shall continue to deal solely --- and directly with the originating Lender in connection with the originating Lender's rights and obligations under this Agreement and the other Loan Documents, and (iv) no Lender shall transfer or grant any participating interest under which the Participant has rights to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment, consent or waiver would require unanimous consent of the Lenders as described in the first proviso to Section 12.Credit
1. In the ----- ------- ------------ case of any such participation, the Participant shall be entitled to the benefit of Sections 4.13.1, 4.3, 4.4, 4.6 3.3 and 12.5 10.5 to the extent the Lender selling such ------------ --- ---- participation would be so entitled as though it were also a Lender hereunder, and if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, the each Participant shall be deemed to have the right of set-off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement.
(de) Notwithstanding any other provision in this Agreement, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement and any Note LC Obligation held by it in favor of any Federal Reserve Bank in accordance with Regulation A of the FRB or U.S. Treasury Regulation 31 CFR (S)203.14ss.203.14, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law.
(f) Notwithstanding the foregoing, the Fronting Bank may not assign its obligation to issue Letters of Credit without the consent of the Borrower.
Appears in 1 contract
Samples: Letter of Credit Reimbursement Agreement (Max Re Capital LTD)
Assignments, Participations, etc. (a) Any Lender may, with the written consent of Culliganthe Borrower, the Administrative Agent, the Issuing Swingline Lender and the Swing Line Lender (each Issuing Lender, which consents shall not be unreasonably withheld), at any time assign and delegate to one or more Eligible Assignees (provided that (x) no written consent of Culligan, the Administrative Agent, the Issuing Lender or the Swing Line Lender Borrower shall be required either in connection with any assignment and delegation by a Lender to another Lender or to an Eligible Assignee that is an a Lender Affiliate of such Lender or at any time that an Event of Default shall exist and (so long as such y) no written consent of any Issuing Lender or the Swingline Lender shall be required in connection with any assignment will not result in any increased costs to the Borrowers) or to another Lenderof Term Loans) (each an "Assignee") all all, or any ratable part of all, -------- of the Loans, the Commitment, the L/C Obligations Commitments and the other rights and obligations of such Lender hereunder; provided, however, that any such assignment to an Eligible Assignee -------- ------- which is not a Lender or a Lender Affiliate shall be in a minimum Dollar Equivalent amount equal to the lesser of U.S. $5,000,000 or, if less, or the entire full amount of the assignor Lender's Commitments and/or outstanding Loans; and provided, Commitmentstill further, L/C Obligations and other rights and obligations of such that the -------- ----- ------- Borrower, the Issuing Lenders, the Swingline Lender hereunder; provided that (i) the Borrowers and the Administrative Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (xi) written notice of such assignment, together with payment instructions, addresses and related information with respect to the Assignee, shall have been given to Culligan the Borrower and the Administrative Agent by such Lender and the Assignee; (yii) such Lender and the its Assignee shall have delivered to the Borrowers Borrower and the Administrative Agent an Assignment and Acceptance in the form of Exhibit H L ("Assignment and Acceptance") together with any Note or Notes subject to such assignment); and (ziii) such in the case of any --------- ------------------------- assignment to an Assignee which is not already a Lender, the assignor Lender or the Assignee shall have has paid to the Administrative Agent a processing fee in the amount of U.S. $3,0003,500; and (ii) concurrently with provided, still further, that any assignment hereunder of a Lender's -------- ------------- Revolving Commitment must include an equal percentage of such assignment, the assignor Lender shall assign to the Assignee a proportionate share Lender's Revolving Loans and Letter of its loans, commitment and other rights and obligations under the Long-Term Credit AgreementObligations.
(b) From and after the date that the Administrative Agent notifies the assignor Lender that it has received the requirements of paragraph (anda) above are satisfied, to the extent required, provided its consent and received the consents of Culligan, the Issuing Lender and the Swing Line Lender with respect to) an executed Assignment and Acceptance and payment of the above-referenced processing fee, -------------
(i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it and obligations hereunder have been assumed by it pursuant to such Assignment and Acceptance, shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assignor Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under the Loan Documents. Anything herein or in the relevant Assignment and Acceptance to the contrary notwithstanding, any Lender assigning all of its Loans, Commitments and other rights and obligations hereunder to an Assignee shall continue to have the benefit of all indemnities hereunder following such assignment.
(c) Immediately upon each Assignee's making its payment under the Assignment and Acceptance and the recordation of such assignment by the Administrative Agent in the Register pursuant to Section 2.02, this Agreement, shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Aggregate Revolving Commitment and the outstanding Term Loans arising therefrom.
(d) Any Lender may at any time sell to one or more commercial banks or other Persons not Affiliates of Culligan the Borrower (a "Participant") participating interests ----------- in any LoanLoans, any of the Commitment Commitments of such Lender and the other interests of such Lender (the "originating Originating Lender") hereunder and under the other Loan ------------------ Documents; provided, however, that (i) the originating Originating Lender's obligations -------- ------- under this Agreement shall remain unchanged, (ii) the originating Originating Lender shall remain solely responsible for the performance of such obligations, (iii) the BorrowersBorrower, the Issuing LenderLenders, the Swing Line Swingline Lender and the Administrative Agent shall continue to deal solely and directly with the originating Originating Lender in connection with the originating Originating Lender's rights and obligations under this Agreement and the other Loan Documents, and (iv) no Lender shall transfer or grant any participating interest under which the Participant has shall have rights to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except provided that such Participant shall have -------- the right to the extent such approve any amendment, consent or waiver would require unanimous consent of the Lenders as described in clauses (ii), ------------ (iii) and (vi) of the first proviso to Section 12.
112.01. In the case of any such ----- ----- ------- ------------- participation, the Participant shall be entitled to the benefit of Sections 4.1-------- 4.01, 4.34.03 and 12.05, 4.4subject to the same limitations, 4.6 and 12.5 as though it were also a ---- ----- Lender hereunder, subject to clause (f) below, and if amounts outstanding under ---------- this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the Participant shall extent permitted under applicable law, be deemed to have the right of set-off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement.
(de) Notwithstanding any other provision contained in this AgreementAgreement or any other Loan Document to the contrary, (x) any Lender may at any time create a security interest inassign, or pledgeas collateral security, all or any portion of its rights under and interest in this Agreement and any Note the Loans held by it in favor of to (i) any Federal Reserve Bank in accordance with or the United States Treasury pursuant to Regulation A of the FRB or U.S. Treasury Regulation 31 CFR (S)203.14, Federal Reserve Board and any Operating Circular issued by such Federal Reserve Bank or (ii) any non-Federal Reserve Bank in support of borrowings incurred by such Lender from such entity and (y) with the consent of the Administrative Agent, any Lender which is a fund may enforce pledge all or any portion of its Loans to its trustee in support of its obligations to its trustee, provided that any payment in respect of such assigned Loans made by the Borrower -------- or Holdings to or for the account of the assigning or pledging Lender in accordance with the terms of this Agreement shall satisfy the Borrower's or Holdings' obligations hereunder in respect to such assigned Loans to the extent of such payment. No such assignment or pledge pursuant to this clause (e) shall ---------- release the assigning Lender from its obligations hereunder.
(f) No Participant shall be entitled to receive any greater payment under Sections 4.01 or security interest in any manner permitted under applicable law4.03 than such Originating Lender would have been ------------- ---- entitled to receive with respect to the rights transferred unless such transfer is made with the Borrower's prior written consent.
Appears in 1 contract
Assignments, Participations, etc. (a) Any Lender Bank may, with the written consent of Culligan, the Administrative Borrowers at all times other than during the existence of an Event of Default and the Agent, the Issuing Lender and the Swing Line Lender (which consents shall not be unreasonably withheld), at any time assign and delegate to one or more Eligible Assignees (provided that no written consent of Culligan, the Administrative Agent, the Issuing Lender Borrowers or the Swing Line Lender Agent shall be required in connection with any assignment and delegation by a Lender Bank to an Eligible Assignee that is an Affiliate of such Lender (so long as such assignment will not result in any increased costs to the Borrowers) or to another LenderBank) (each an "Assignee") all all, or any ratable part of all, of the Loans, the Commitmentits Pro Rata Share of all LC Obligations, the L/C Obligations Commitments and the other rights and obligations of such Lender Bank hereunder, in a minimum Dollar Equivalent amount of U.S. $5,000,000 or5,000,000; provided, if lesshowever, the entire amount of the Loans, Commitment, L/C Obligations and other rights and obligations of such Lender hereunder; provided that (i) the Borrowers and the Administrative Agent may continue to deal solely and directly with such Lender Bank in connection with the interest so assigned to an Assignee until (xi) written notice of such assignment, together with payment instructions, addresses and related information with respect to the Assignee, shall have been given to Culligan the Borrowers and the Administrative Agent by such Lender Bank and the Assignee; (yii) such Lender Bank and the its Assignee shall have delivered to the Borrowers and the Administrative Agent an Assignment and Acceptance in the form of Exhibit H E ("Assignment and Acceptance") together with any Note or Notes subject to such assignment; assignment and (ziii) such Lender the assignor Bank or the Assignee shall have has paid to the Administrative Agent a processing fee in the amount of U.S. $3,000; and (ii) concurrently with such assignment, the assignor Lender shall assign to the Assignee a proportionate share of its loans, commitment and other rights and obligations under the Long-Term Credit Agreement2,500.
(b) From and after the date that the Administrative Agent notifies the assignor Lender Bank that it has received (and, to the extent required, and provided its consent and received the consents of Culligan, the Issuing Lender and the Swing Line Lender with respect to) an executed Assignment and Acceptance and payment of the above-referenced processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it and obligations hereunder have been assumed by it pursuant to such Assignment and Acceptance, shall have the rights and obligations of a Lender Bank under the Loan Documents, and (ii) the assignor Lender Bank shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under the Loan Documents.
(c) Any Lender may at any time sell Within five Business Days after its receipt of notice by the Agent that it has received an executed Assignment and Acceptance and payment of the processing fee, (and provided that it consents to one or more commercial banks or other Persons not Affiliates of Culligan (a "Participant") participating interests such assignment in any Loanaccordance with subsection 11.8(a)), the Commitment of such Lender Borrowers shall execute and the other interests of such Lender (the "originating Lender") hereunder and under the other Loan Documents; provided, however, that (i) the originating Lender's obligations under this Agreement shall remain unchanged, (ii) the originating Lender shall remain solely responsible for the performance of such obligations, (iii) the Borrowers, the Issuing Lender, the Swing Line Lender and the Administrative Agent shall continue to deal solely and directly with the originating Lender in connection with the originating Lender's rights and obligations under this Agreement and the other Loan Documents, and (iv) no Lender shall transfer or grant any participating interest under which the Participant has rights to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except deliver to the extent Agent, if requested by Assignee or assignor Bank new Notes evidencing such amendmentAssignee's assigned Loans and Commitment and, consent or waiver would require unanimous consent of the Lenders as described in the first proviso to Section 12.
1. In the case of any such participation, the Participant shall be entitled to the benefit of Sections 4.1, 4.3, 4.4, 4.6 and 12.5 as though it were also a Lender hereunder, and if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, the Participant shall be deemed to have the right of set-off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as assignor Bank has retained a Lender under this Agreement.
(d) Notwithstanding any other provision in this Agreement, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under Loans and interest its Commitment, replacement Notes in this Agreement and any Note held by it in favor of any Federal Reserve Bank in accordance with Regulation A the principal amount of the FRB or U.S. Treasury Regulation 31 CFR Revolving Loans retained by the assignor Bank (S)203.14, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law.Notes to be
Appears in 1 contract
Assignments, Participations, etc. (a) Any Lender may, with the written consent of Culligan, the Administrative Company (unless an Event of Default exists) and the Agent, the Issuing Lender and the Swing Line Lender (which consents shall not be unreasonably withheld), at any time assign and delegate to one or more Eligible Assignees (provided that no written consent of Culligan, the Administrative Agent, the Issuing Lender Company or the Swing Line Lender Agent shall be required in connection with any assignment and delegation by a Lender to an Eligible Assignee that is an Affiliate of such Lender (so long as such assignment will not result in any increased costs to the Borrowers) or to another Lender) (each an "Assignee") all all, or any ratable part of all, of the Loans, the Commitment, the L/C Obligations Commitment and the other rights and obligations of such Lender hereunder, in a minimum Dollar Equivalent amount of U.S. $5,000,000 (or, if less, the entire amount all of the Loans, Commitment, L/C Obligations and other such Lender's remaining rights and obligations of such Lender hereunder); provided that (i) the Borrowers Company and the Administrative Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (xi) written notice of such assignment, together with payment instructions, addresses and related information with respect to the Assignee, shall have been given to Culligan the Company and the Administrative Agent by such Lender and the Assignee; (yii) such Lender and the its Assignee shall have delivered to the Borrowers Company and the Administrative Agent an Assignment and Acceptance in the form of Exhibit H E ("Assignment and Acceptance") together with any Note or Notes subject to such assignment; assignment and (ziii) such the assignor Lender or the Assignee shall have has paid to the Administrative Agent a processing fee in the amount of U.S. $3,000; and (ii) concurrently with such assignment, the assignor Lender shall assign to the Assignee a proportionate share of its loans, commitment and other rights and obligations under the Long-Term Credit Agreement2,500.
(b) From and after the date that the Administrative Agent notifies the assignor Lender that it has received (and, to the extent required, and provided its consent (and received the consents consent of Culliganthe Company, the Issuing Lender and the Swing Line Lender if applicable) with respect to) to an executed Assignment and Acceptance and payment of the above-referenced processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it and obligations hereunder have been assumed by it pursuant to such Assignment and Acceptance, shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assignor Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under the Loan Documents.
(c) Any Lender may at any time sell to one or more commercial banks or other Persons not Affiliates of Culligan the Company (a "Participant") participating interests in any LoanLoans, the Commitment of such Lender and the other interests of such Lender (the "originating Lender") hereunder and under the other Loan Documents; provided, however, that (i) the originating Lender's obligations under this Agreement shall remain unchanged, (ii) the originating Lender shall remain solely responsible for the performance of such obligations, (iii) the Borrowers, the Issuing Lender, the Swing Line Lender and the Administrative Agent shall continue to deal solely and directly with the originating Lender in connection with the originating Lender's rights and obligations under this Agreement and the other Loan Documents, and (iv) no Lender shall transfer or grant any participating interest under which the Participant has rights to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment, consent or waiver would require unanimous consent of the Lenders as described in the first proviso to Section 12.the
1. In the case of any such participation, the Participant shall be entitled to the benefit of Sections 4.13.1, 4.3, 4.4, 4.6 3.3 and 12.5 10.5 as though it were also a Lender hereunder, and if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, the each Participant shall be deemed to have the right of set-off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement.
(d) Notwithstanding any other provision in this Agreement, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement and any Note held by it in favor of any Federal Reserve Bank in accordance with Regulation A of the FRB or U.S. Treasury Regulation 31 CFR (S)203.14Section 203.14, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law.
Appears in 1 contract
Samples: Credit Agreement (Truserv Corp)
Assignments, Participations, etc. (a) Any Lender may, with the written consent of Culliganthe Borrower, the Administrative Agent, the Issuing Lender and the Swing Line Lender (which consents consent shall not be unreasonably withheldwithheld (provided that such consent shall not be required at any time that a Default or an Event of Default exists or in connection with any assignment by a Lender to another Lender or to an Eligible Assignee that is an Affiliate of a Lender or a Related Fund of a Lender), and the Agent, at any time assign and delegate to one or more Eligible Assignees (provided that no written such consent of Culligan, the Administrative Agent, the Issuing Lender Agent or the Swing Line Lender Borrower shall not be required in connection with any assignment and delegation by a Lender to an Eligible Assignee that is an Affiliate of such Lender (so long as such assignment will not result in any increased costs to the Borrowers) or to another Lender) (each an "“Assignee"”) all all, or any part of the Loans, the Commitment, the L/C Obligations Commitments and the other rights and obligations of such Lender hereunder, in a minimum Dollar Equivalent amount of U.S. $5,000,000 1,000,000 (or such lesser amount to which the Agent, in its sole discretion, may agree) or, if less, the entire Commitment or Loan(s) of such Lender; provided, however, that any assignment of the Swing Line Commitment and Swing Line Loans thereunder (x) shall require the prior written consent of Agent which may be granted or withheld in its sole discretion and (y) shall be in the full amount of the LoansSwing Line Commitment and outstanding Swing Line Loans at such time; provided, Commitmentfurther, L/C Obligations however, that in no event shall more than one Lender hold the Swing Line Commitment and other rights Swing Line Loans at any time; and obligations of such Lender hereunder; provided provided, further, however, in all instances, that (i) the Borrowers Borrower and the Administrative Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until until:
(xi) written notice of such assignment, together with payment instructions, addresses and related information with respect to the Assignee, shall have been given to Culligan the Borrower and the Administrative Agent by such Lender and the Assignee; ;
(yii) such Lender and the its Assignee shall have delivered to the Borrowers Borrower and the Administrative Agent an Assignment and Acceptance in the form of Exhibit H and substance reasonably satisfactory to Agent, such Lender and its Assignee ("an “Assignment and Acceptance"”); and
(iii) together with any Note or Notes subject to such assignment; and (z) such the assignor Lender or the Assignee shall have has paid to the Administrative Agent a processing fee in the amount of U.S. $3,000; and (ii) concurrently 3,500, provided no processing fee shall be required to be paid in connection with an assignment by a Lender to an Eligible Assignee that is an Affiliate of such assignmentLender. No less frequently than once every fiscal quarter, the assignor Agent shall notify Swing Line Lender shall assign of any assignments made to the Assignee an entity that was not previously a proportionate share of its loans, commitment and other rights and obligations under the Long-Term Credit AgreementLender.
(b) From Subject to the provisions of subsection 9.8(f) below, from and after the date that the Administrative Agent notifies the assignor Lender that it the Agent has received (and, to the extent required, and provided its consent and received the consents of Culligan, the Issuing Lender and the Swing Line Lender with respect to) to an executed Assignment and Acceptance and payment of the above-referenced processing fee, :
(i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it and obligations hereunder have been assumed by it pursuant to such Assignment and Acceptance, shall have the rights and obligations of a Lender under this Agreement and the other Loan Documents, and ; and
(ii) the assignor Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under the Loan Documents.
(c) Subject to the provisions of subsection 9.8(f) below, immediately upon the making of the processing fee payment to the Agent in respect of the Assignment and Acceptance, this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitment of the assigning Lender to the same extent.
(d) Any Lender may at any time sell to one or more commercial banks or other Persons not Affiliates of Culligan the Borrower (a "“Participant"”) participating interests in any LoanLoans, the Commitment of such that Lender and the other interests of such that Lender (the "originating “Originating Lender"”) hereunder and under the other Loan Documents; providedprovided , however, that that:
(i) the originating Originating Lender's ’s obligations under this Agreement shall remain unchanged, ;
(ii) the originating Originating Lender shall remain solely responsible for the performance of such obligations, ;
(iii) the Borrowers, the Issuing Lender, the Swing Line Lender Borrower and the Administrative Agent shall continue to deal solely and directly with the originating Originating Lender in connection with the originating Originating Lender's ’s rights and obligations under this Agreement and the other Loan Documents, and ; and
(iv) no Lender shall transfer or grant any participating interest under which the Participant has shall have rights to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment, consent or waiver would require unanimous consent of the Lenders as described in the first proviso to Section 12.
1subsection 9.1(a). In the case of any such participation, the Participant shall be entitled to the benefit of Sections 4.1, 4.3, 4.4, 4.6 and 12.5 as though it were also a Lender hereunder, and if amounts outstanding under this Agreement are due and unpaid, or shall not have been declared or shall have become due and payable upon the occurrence of an Event of Default, the Participant shall be deemed to have the right of set-off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender any rights under this Agreement, or any of the other Loan Documents, and all amounts payable by the Borrower hereunder shall be determined as if such Lender had not sold such participation.
(de) Notwithstanding any other provision contained in this AgreementAgreement or any other Loan Document to the contrary, any Lender may at any time create a security interest in, or pledge, (i) assign all or any portion of its rights under and interest in this Agreement and any Note the Loans held by it in favor of to any Federal Reserve Bank in accordance with or the United States Treasury as collateral security pursuant to Regulation A of the FRB or U.S. Treasury Regulation 31 CFR (S)203.14, Federal Reserve Board and any Operating Circular issued by such Federal Reserve Bank may enforce Bank, (ii) in the case of any Lender that is a fund, trust or similar entity, assign or pledge all or any portion of the Loans held by it (and Notes evidencing such Loans) to the trustee under any indenture to which such Lender is a party in support of its obligations to the trustee for the benefit of the applicable trust beneficiaries, or (iii) pledge all or any portion of the Loans held by it (and Notes evidencing such Loans) to its lenders for collateral security interest purposes, provided that any payment in respect of such assigned Loans made by the Borrower to or for the account of the assigning or pledging Lender in accordance with the terms of this Agreement shall satisfy the Borrower’s obligations hereunder in respect to such assigned or pledged Loans to the extent of such payment. No such assignment or pledge shall release the assigning Lender from its obligations hereunder.
(f) The Agent shall, on behalf of the Borrower, maintain at its address referred to in Section 9.2 a copy of each Assignment and Acceptance delivered to it and a register (the “Register”) for the recordation of the names and addresses of the Lenders and the Commitment of, and principal amount of the Loans owing to, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of demonstrable error, and the Borrower, the Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Commitments, Loans and any manner permitted under applicable lawNotes evidencing such Loans recorded therein for all purposes of this Agreement. Any assignment of any Commitment and/or Loan, whether or not evidenced by a Note, shall be effective only upon appropriate entries with respect thereto being made in the Register. Any assignment or transfer of all or part of a Commitment and/or Loan evidenced by a Note shall be registered on the Register only upon a surrender or registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and Acceptance; thereupon one or more new Notes in the same aggregate principal amount shall be issued to the designated assignee and, if applicable, assignor, and the old Notes shall be returned by the Agent to the Borrower marked “cancelled”. The Register shall be available for inspection by the Borrower or any Lender (with respect to any entry relating to such Lender’s Commitments and Loans) at any reasonable time and from time to time upon reasonable prior notice.
Appears in 1 contract
Samples: Credit Agreement (Panther Expedited Services, Inc.)
Assignments, Participations, etc. (a) Any Lender mayThe provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns permitted hereby (including any Affiliate of each Issuing Bank that issues any Letter of Credit), with except that (i) the Borrower may not assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of Culliganeach Lender (and any attempted assignment or transfer by the Borrower without such consent shall be null and void) and (ii) no Lender may assign or otherwise transfer its rights or obligations hereunder except in accordance with this Section. Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby (including any Affiliate of each Issuing Bank that issues any Letter of Credit), Participants (to the extent provided in paragraph (e) of this Section) and, to the extent expressly contemplated hereby, the Affiliates of each of the Administrative Agent, the Lenders and Issuing Banks) any legal or equitable right, remedy or claim under or by reason of this Agreement.
(i) Subject to the conditions set forth in paragraph (b)(ii) below, any Lender and the Swing Line Lender (which consents shall not be unreasonably withheld), at any time may assign and delegate to one or more Eligible Assignees assignees all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitment and the Loans at the time owing to it) with the prior written consent (such consent not to be unreasonably withheld) of:
(A) the Borrower, provided that no written consent of Culliganthe Borrower shall be required for an assignment to a Lender, an Affiliate of a Lender, or, if an Event of Default has occurred and is continuing, any other assignee,
(B) the Administrative Agent, ; and
(C) each Issuing Bank.
(ii) Assignments shall be subject to the Issuing following additional conditions:
(A) except in the case of an assignment to a Lender or the Swing Line Lender shall be required in connection with any assignment and delegation by a Lender to an Eligible Assignee that is an Affiliate of such a Lender (so long as such or an assignment will not result in any increased costs to the Borrowers) or to another Lender) (each an "Assignee") all or any part of the entire remaining amount of the assigning Lender's Commitment or Committed Loans, the Commitment, the L/C Obligations and the other rights and obligations of such Lender hereunder, in a minimum Dollar Equivalent amount of U.S. $5,000,000 or, if less, the entire amount of the Loans, Commitment, L/C Obligations Commitment or Committed Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment and other rights and obligations Assumption with respect to such assignment is delivered to the Administrative Agent) shall not be less than $5,000,000 unless each of such Lender hereunder; provided that (i) the Borrowers Borrower and the Administrative Agent may continue otherwise consent; 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 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 deal solely and directly with such Lender rights in connection with respect of outstanding Bid Loans,
(C) the interest so assigned to an Assignee until (x) written notice of such assignment, together with payment instructions, addresses and related information with respect to the Assignee, shall have been given to Culligan and the Administrative Agent by such Lender Assignor in respect of each assignment shall execute and the Assignee; (y) such Lender and the Assignee shall have delivered deliver to the Borrowers and the Administrative Agent an Assignment and Acceptance in the form of Exhibit H ("Assignment and Acceptance") , together with any Note or Notes subject to such assignment; a processing and recordation fee of $3,500, and
(zD) such Lender or the Assignee Assignee, if it shall have paid not be a Lender, shall deliver to the Administrative Agent a processing fee in the amount an Administrative Questionnaire. Subject to acceptance and recording thereof pursuant to paragraph (d) of U.S. $3,000; and (ii) concurrently with such assignmentthis Section, the assignor Lender shall assign to the Assignee a proportionate share of its loans, commitment and other rights and obligations under the Long-Term Credit Agreement.
(b) From from and after the effective date that the Administrative Agent notifies the assignor Lender that it has received (and, to the extent required, provided its consent and received the consents of Culligan, the Issuing Lender and the Swing Line Lender with respect to) an executed specified in each Assignment and Acceptance and payment of the above-referenced processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights hereunder have been of the interest assigned to it and obligations hereunder have been assumed by it pursuant to such Assignment and Acceptance, shall have the rights and obligations of a Lender under the Loan Documentsthis Agreement, and (ii) the assignor assigning Lender thereunder shall, to the extent that rights and obligations hereunder and under of the other Loan Documents have been interest assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under this Agreement (and, in the Loan Documentscase of an Assignment and Acceptance 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 3.05, 3.08, 3.09, 3.10, 3.11 and 10.05)(but only to the extent such Lender notifies the Borrower of any claim under such Section within 90 days after it obtains knowledge thereof). Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this paragraph 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 (e) of this Section.
(c) The Administrative Agent, acting for this purpose as an agent of the Borrower, shall maintain at one of its offices in the United States a copy of each Assignment and Acceptance delivered to it and a register for the recordation of the names and addresses of the Lenders, and the Commitment of, and principal amount of the Loans owing to, each Lender pursuant to the terms hereof from time to time (the "Register"). The entries in the Register shall be conclusive, and the Borrower, the Administrative Agent, the Issuing Banks and the Lenders may treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available for inspection by the Borrower, and any Lender and any Issuing Bank, at any reasonable time and from time to time upon reasonable prior notice.
(d) Upon its receipt of a duly completed Assignment and Acceptance 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) of this Section and any written consent to such assignment required by paragraph (b) of this Section, the Administrative Agent shall accept such Assignment and Acceptance and record the information contained therein in the Register. No assignment shall be effective for purposes of this Agreement unless it has been recorded in the Register as provided in this paragraph. 121
(e) Any Lender may at may, without the consent of the Borrower, any time Issuing Bank or the Administrative Agent, sell participations to one or more commercial banks or other Persons not Affiliates of Culligan entities (each a "Participant") participating interests in any Loan, the Commitment all or a portion of such Lender Lender's rights and obligations under this Agreement (including all or a portion of its Commitment and the other interests of such Lender (the "originating Lender") hereunder and under the other Loan DocumentsLoans owing to it); provided, however, provided that (i) the originating such Lender's obligations under this Agreement shall remain unchanged, (ii) the originating such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, obligations and (iii) the BorrowersBorrower, the Administrative Agent, the Issuing Lender, the Swing Line Lender Banks and the Administrative Agent other Lenders shall continue to deal solely and directly with the originating such Lender in connection with the originating such Lender's rights and obligations under this Agreement. Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and the other Loan Documents, and (iv) no Lender shall transfer or grant any participating interest under which the Participant has rights to approve any amendment toamendment, or any consent modification or waiver with respect toof any provision of this Agreement; provided that such agreement or instrument may provide that such Lender will not, this Agreement or any other Loan Document, except to without the extent such amendment, consent or waiver would require unanimous consent of the Lenders as Participant, agree to any amendment, modification or waiver described in the first proviso to Section 12.
110.02 that affects such Participant. In the case Subject to paragraph (f) of any such participationthis Section, the Borrower agrees that each Participant shall be entitled to the benefit benefits of Sections 4.13.05 (other than 3.05(f)), 4.33.06, 4.43.08, 4.6 3.09 and 12.5 as though it were also a Lender hereunder, and if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, the Participant shall be deemed to have the right of set-off in respect of its participating interest in amounts owing under this Agreement 3.10 to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of this Section. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 10.06 as though it were a Lender, provided such Participant agrees to be subject to Section 3.06 as though it were a Lender. Notwithstanding anything in this paragraph to the contrary, any bank that is a member of the Farm Credit System that (a) has purchased a participation in the minimum amount of its participating interest $10,000,000 on or after the Effective Date, (b) is, by written notice to the Borrower and the Administrative Agent ("Voting Participant Notification"), designated by the selling Lender as being entitled to be accorded the rights of a Voting Participant hereunder (any bank that is a member of the Farm Credit System so designated being called a "Voting Participant") and (c) receives the prior written consent of the Borrower and the Administrative Agent to become a Voting Participant, shall be entitled to vote (and the voting rights of the selling Lender shall be correspondingly reduced), on a dollar for dollar basis, as if such participant were owing directly to it as a Lender, on any matter requiring or allowing a Lender under to provide or withhold its consent, or to otherwise vote on any proposed action. To be effective, each Voting Participant Notification shall, with respect to any Voting Participant, (i) state the full name, as well as all contact information required of an Assignee as set forth in Exhibit 10.08 hereto and (ii) state the dollar amount of the participation purchased. The Borrower and the Administrative Agent shall be entitled to conclusively rely on information contained in notices delivered pursuant to this Agreementparagraph.
(df) Notwithstanding A Participant shall not be entitled to receive any other provision in this Agreementgreater payment under Section 3.05, any 3.08, 3.09 or 3.10 than the applicable Lender would have been entitled to receive with respect to the participation sold to such Participant, unless the sale of the participation to such Participant is made with the Borrower's prior written consent. A Participant that would be a Foreign Lender if it were a Lender shall not be entitled to the benefits of Section 3.05 unless the Borrower is notified of the participation sold to such Participant and such Participant agrees, for the benefit of the Borrower, to comply with Section 3.05(f) as though it were a Lender.
(g) Any Lender may at any time create pledge or assign a security interest in, or pledge, in all or any portion of its rights under and interest in this Agreement and any Note held by it in favor to secure obligations of any such Lender to (i) a Federal Reserve Bank in accordance with Regulation A of or (ii) the FRB Farm Credit Funding Corp. or U.S. Treasury Regulation 31 CFR (S)203.14to any other entity organized under the Farm Credit Act, as amended, and such Federal Reserve Bank may enforce this Section shall not apply to any such pledge or assignment of a security interest; provided that no such pledge or assignment of a security interest in shall release a Lender from any manner permitted under applicable lawof its obligations hereunder or substitute any such pledgee or Assignee for such Lender as a party hereto.
Appears in 1 contract
Samples: Credit Agreement (Tyson Foods Inc)
Assignments, Participations, etc. (a) Any Lender may, with the written consent of Culligan, the Borrower (at all times other than during the existence of an Event of Default) and the Administrative Agent, the Issuing Lender and the Swing Line Lender (which consents shall not be unreasonably withheld), and the Fronting Bank, at any time assign and delegate to one or more Eligible Assignees (provided that no written consent of Culligan, the Borrower or the Administrative Agent, the Issuing Lender or the Swing Line Lender Agent shall be required in connection with any assignment and delegation by a Lender to an Eligible Assignee that is an Affiliate of such Lender (so long as such assignment will not result in any increased costs to the Borrowers) or to another Lender) (each an "Assignee") all all, or any ratable part of all, of the Loans-------- LC Obligations, the Commitment, the L/C Obligations Commitments and the other rights and obligations of such Lender hereunder, in a minimum Dollar Equivalent amount of U.S. $5,000,000 or, if less, the entire amount of the Loans, Commitment, L/C Obligations and other rights and obligations of such Lender hereunder; provided that (i) the Borrowers and the Administrative Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (x) written notice of such assignment, together with payment instructions, addresses and related information with respect to the Assignee, shall have been given to Culligan and the Administrative Agent by such Lender and the Assignee; (y) such Lender and the Assignee shall have delivered to the Borrowers and the Administrative Agent an Assignment and Acceptance in the form of Exhibit H ("Assignment and Acceptance") together with any Note or Notes subject to such assignment; and (z) such Lender or the Assignee shall have paid to the Administrative Agent a processing fee in the amount of U.S. $3,000; and (ii) concurrently with such assignment, the assignor Lender shall assign to the Assignee a proportionate share of its loans, commitment and other rights and obligations under the Long-Term Credit Agreement.
(b) From and after the date that the Administrative Agent notifies the assignor Lender that it has received (and, to the extent required, provided its consent and received the consents of Culligan, the Issuing Lender and the Swing Line Lender with respect to) an executed Assignment and Acceptance and payment of the above-referenced processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights hereunder have been assigned to it and obligations hereunder have been assumed by it pursuant to such Assignment and Acceptance, shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assignor Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under the Loan Documents.
(c) Any Lender may at any time sell to one or more commercial banks or other Persons not Affiliates of Culligan (a "Participant") participating interests in any Loan, the Commitment of such Lender and the other interests of such Lender (the "originating Lender") hereunder and under the other Loan Documents; provided, however, that (iw) the originating aggregate principal ----------------- amount of the Commitment assigned by any Lender to someone other than another Lender shall be in a minimum amount of $5,000,000 (or if less, the entire Commitment then held by such Lender's obligations under this Agreement shall remain unchanged), (iix) the originating Lender shall remain solely responsible for the performance of after giving effect to any such obligations, (iii) the Borrowers, the Issuing assignment by a Lender, the Swing Line aggregate amount of the Commitments and/or LC Obligations held by such assigning Lender is at least $5,000,000 (unless such Lender has assigned the entire Commitment and LC Obligations then held by it), (y) after giving effect to any such assignment by a Lender, the Assignee Percentage under the Tranche A Commitment and Tranche B Commitment is the same and the Percentage of the assignor Lender under the Tranche A Commitment and the Tranche B Commitment is the same, and (z) the Assignee provides the Administrative Agent shall continue to deal solely and directly the Borrower with the originating Lender form specified in connection with the originating Lender's rights and obligations under this Agreement and the other Loan Documents, and (iv) no Lender shall transfer or grant any participating interest under which the Participant has rights to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment, consent or waiver would require unanimous consent of the Lenders as described in the first proviso to Section 129.
1. In the case of any such participation, the Participant shall be entitled to the benefit of Sections 4.1, 4.3, 4.4, 4.6 and 12.5 as though it were also a Lender hereunder, and if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, the Participant shall be deemed to have the right of set-off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement.
(d) Notwithstanding any other provision in this Agreement, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement and any Note held by it in favor of any Federal Reserve Bank in accordance with Regulation A of the FRB or U.S. Treasury Regulation 31 CFR (S)203.14, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law.
Appears in 1 contract
Samples: Letter of Credit Reimbursement Agreement (Max Re Capital LTD)
Assignments, Participations, etc. (a) Any Lender may, with the written consent of Culligan, the Company at all times other than during the existence of an Event of Default and the Administrative Agent, the Issuing Lender and the Swing Line Lender (which consents shall not be unreasonably withheld), at any time assign and delegate to one or more Eligible Assignees Persons (provided PROVIDED, that no written consent of Culligan, the Company or the Administrative Agent, the Issuing Lender or the Swing Line Lender Agent shall be required in connection with any assignment and delegation by a Lender to an Eligible Assignee that is an Affiliate of such Lender (so long as such assignment will not result in any increased costs to the Borrowers) or to another Lender) (each an "Assignee") all all, or any ratable part of all, of the Loans, the Commitment, the L/C Obligations Revolving Commitments and the other rights and obligations of such Lender hereunder, in a minimum Dollar Equivalent amount of U.S. Five Million Dollars ($5,000,000 or5,000,000); PROVIDED, if lessHOWEVER, that the entire amount of the Loans, Commitment, L/C Obligations and other rights and obligations of such Lender hereunder; provided that (i) the Borrowers Company and the Administrative Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (xA) written notice of such assignment, together with payment instructions, addresses and related information with respect to the such Assignee, shall have been given to Culligan the Company and the Administrative Agent by such Lender and the such -91- Assignee; (yB) such Lender and the its Assignee shall have delivered to the Borrowers Company and the Administrative Agent an Assignment and Acceptance in the form of Exhibit EXHIBIT H ("Assignment and Acceptance") together with any Note or Notes subject to such assignment; assignment and (zC) such the assignor Lender or the Assignee shall have has paid to the Administrative Agent a processing fee in the amount of U.S. Three Thousand Five Hundred Dollars ($3,000; and (ii) concurrently with such assignment, the assignor Lender shall assign to the Assignee a proportionate share of its loans, commitment and other rights and obligations under the Long-Term Credit Agreement3,500).
(b) From and after the date that the Administrative Agent notifies the assignor Lender that it has received (and, to the extent required, and provided its consent and received the consents of Culligan, the Issuing Lender and the Swing Line Lender with respect to) an executed Assignment and Acceptance and payment of the above-referenced processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it and obligations hereunder have been assumed by it pursuant to such Assignment and Acceptance, shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assignor Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under the Loan Documents.
(c) Within five Business Days after its receipt of notice by the Administrative Agent that it has received an executed Assignment and Acceptance and payment of the processing fee (and PROVIDED, that it consents to such assignment pursuant to subsection 10.8(a)), the Company shall execute and deliver to the Administrative Agent new Notes evidencing such Assignee's assigned Loans and Commitment and, if the assignor Lender has retained a portion of its Loans and its Commitment, replacement Notes in the principal amount of the Loans retained by the assignor Lender (such Notes to be in exchange for, but not in payment of, the Notes held by such Lender). Immediately upon each Assignee's making its processing fee payment under the Assignment and Acceptance, this Agreement, shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments arising therefrom. The Commitments allocated to each Assignee shall reduce such Commitments of the assigning Lender PRO TANTO.
(d) Any Lender may may, upon prior written notice to the Company and the Administrative Agent, at any time sell to one or more commercial banks or other Persons not Affiliates of Culligan the Company (a "Participant") participating interests in any LoanLoans, the Revolving Commitment of such that Lender and the other interests of such that Lender (the "originating Lender") hereunder and under the other Loan Documents; providedPROVIDED, howeverHOWEVER, that (i) the originating Lender's obligations under this Agreement shall remain unchanged, (ii) the originating Lender shall remain solely responsible for the performance of such obligations, (iii) the Borrowers, the Issuing Lender, the Swing Line Lender Company and the Administrative Agent shall continue to deal solely and directly with the originating Lender in connection with the originating Lender's rights and obligations under this Agreement and the other Loan Documents, and (iv) no Lender shall transfer or grant any participating interest under which the Participant has shall have rights to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment, consent or waiver would require unanimous consent of the Lenders as described in the first proviso FIRST PROVISO to Section 1210.
1. In the case of any such participation, the Participant shall be entitled to the benefit of Sections 4.13.1, 4.33.3 and 10.5, 4.4with respect to its participation interest, 4.6 and 12.5 as though it were also a Lender hereunder and subject to the same qualifications and limitations as -92- if it were a Lender hereunder, and provided there is no duplicate recovery, but shall not have any other rights under this Agreement, or any of the other Loan Documents, and all amounts payable by the Company hereunder shall be determined as if such Lender had not sold such participation; except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, the each Participant shall be deemed to have the right of set-off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement.
(de) Each Lender agrees to take normal and reasonable precautions and exercise due care to maintain the confidentiality of all information provided to it by the Company or any Subsidiary of the Company, or by the Administrative Agent on such Company's or Subsidiary's behalf, in connection with this Agreement or any other Loan Document, and neither it nor any of its Affiliates shall use any such information for any purpose or in any manner other than pursuant to the terms contemplated by this Agreement; except to the extent such information (i) was or becomes generally available to the public other than as a result of a disclosure by such Lender, or (ii) was or becomes available on a non-confidential basis from a source other than the Company, PROVIDED, that such source is not bound by a confidentiality agreement with the Company known to such Lender; PROVIDED, FURTHER, HOWEVER, that any Lender may disclose such information (A) at the request or pursuant to any requirement of any Governmental Authority to which such Lender is subject or in connection with an examination of such Lender by any such authority; (B) pursuant to subpoena or other court process; (C) when required to do so in accordance with the provisions of any applicable Requirement of Law; (D) to the extent reasonably required in connection with any litigation or proceeding to which the Administrative Agent, any Lender or their respective Affiliates may be party, (E) to the extent reasonably required in connection with the exercise of any remedy hereunder or under any other Loan Document, and (F) to such Lender's independent auditors and other professional advisors, provided that each such Person has agreed to preserve the confidentiality of such material. Notwithstanding the foregoing, the Company authorizes each Lender to disclose to any Participant or Assignee (each, a "Transferee") and to any prospective Transferee, such financial and other information in such Lender's possession concerning the Company or its Subsidiaries which has been delivered to any Agent or any Lender pursuant to this Agreement or which has been delivered to any Agent or any Lender by the Company in connection with the Lenders' credit evaluation of the Company prior to entering into this Agreement; PROVIDED, that, unless otherwise agreed by the Company, such Transferee agrees in writing to such Lender to keep such information confidential to the same extent required of the Lenders hereunder. In the event that any Agent or Lender or any recipient of nonpublic information obtained pursuant to clause (E) above is required or requested to disclose any confidential information pursuant to clauses (A)-(D) above, such recipient shall give the Company prompt prior written notice of such requirement or request so that the Company may seek an appropriate protective order, and, at the expense of the Company, such recipient shall cooperate with the Company in any proceedings to obtain such a protective order to the extent such cooperation is necessary to obtain such protective order and to the extent the recipient determines its cooperation will not be disadvantageous to it. In the absence of a protective order, if the recipient is nonetheless compelled or required to disclose such confidential information in the opinion of its legal counsel, it may disclose such confidential information, provided that the recipient shall give the Company written notice of the confidential information to be disclosed as far in advance of the disclosure as is practicable and, upon the request and at the expense of the Company, shall use its reasonable effects to obtain assurances that confidential treatment shall be accorded such information by the receiving party.
(f) Notwithstanding any other provision contained in this AgreementAgreement or any other Loan Document to the contrary, any Lender may at any time create a security interest in, or pledge, assign all or any portion of its rights under and interest in this Agreement and any Note the Loans or Notes held by it in favor of to any Federal Reserve Bank in accordance with or the United States Treasury as collateral security pursuant to Regulation A of the FRB or U.S. Treasury Regulation 31 CFR (S)203.14, Federal Reserve Board and any Operating Circular issued by such Federal Reserve Bank Bank, PROVIDED, that any payment in respect of such assigned Loans or Notes made by the Company to or for the account of the assigning or pledging Lender in accordance with the terms of this Agreement shall satisfy the Company's obligations hereunder in respect to such assigned Loans or Notes to the extent of such payment. No such assignment shall release the assigning Lender from its obligations hereunder.
(g) BOA may enforce assign its obligations as an Issuer to an Affiliate of BOA without the prior written consent of any party hereto. In connection with such pledge or security interest in any manner permitted under applicable lawassignment, each of the parties hereto agrees to execute such documents as are reasonably requested by such Affiliate of BOA to effectuate such assignment.
Appears in 1 contract
Samples: Credit Agreement (LKQ Corp)
Assignments, Participations, etc. (a) Any Lender may, with the written consent of Culligan, the Administrative Agent, the Issuing Lender and the Swing Line Lender (and the Agent, which consents shall not be unreasonably withheld), at any time assign and delegate to one or more Eligible Assignees Persons (provided that no written consent of Culligan, the Administrative Agent, the Issuing Lender or the Swing Line Lender or the Agent shall be required in connection with any assignment and delegation by a Lender to an Eligible Assignee that is an Affiliate of such Lender (so long as such assignment will not result in any increased costs to the Borrowers) or to another Lender) (each an "Assignee") all all, or any ratable part of all, of the Loans, the Commitment, the L/C Obligations Commitment and the other rights and obligations of such Lender hereunder, in a minimum Dollar Equivalent amount of U.S. $5,000,000 10,000,000 (or, if less, the entire amount all of the Loans, Commitment, L/C Obligations and other such Lender's remaining rights and obligations hereunder); provided, however, that (x) no assignment and delegation may be made to any Person if, at the time of such Lender hereunder; provided that assignment and delegation, (i) the Borrowers Company would be obligated to pay any greater amount under Article III to the Assignee than the Company is then obligated to pay to the assigning Lender under such Article (and if any assignment is made in violation of the foregoing, the Company will not be required to pay the incremental amounts) and (ii) the Assignee has not presented evidence reasonably satisfactory to the Agent and the Administrative Company that the Assignee is exempt from withholding taxes and (y) the Company, the Swing Line Lender and the Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (xi) written notice of such assignment, together with payment instructions, addresses and related information with respect to the Assignee, shall have been given to Culligan the Company and the Administrative Agent by such Lender and the Assignee; (yii) such Lender and the its Assignee shall have delivered to the Borrowers Company and the Administrative Agent an Assignment and Acceptance in the form of Exhibit H G ("Assignment and Acceptance") together with any Note or Notes subject to such assignment; assignment and (ziii) such the assignor Lender or the Assignee shall have has paid to the Administrative Agent a processing fee in the amount of U.S. $3,000; and (ii) concurrently with such assignment, the assignor Lender shall assign to the Assignee a proportionate share of its loans, commitment and other rights and obligations under the Long-Term Credit Agreement5,000.
(b) From and after the date that the Administrative Agent notifies the assignor Lender that it has received (and, to the extent required, and provided its consent (and received the consents consent of Culligan, the Issuing Lender and the Swing Line Lender Lender) with respect to) to an executed Assignment and Acceptance and payment of the above-referenced processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it and obligations hereunder have been assumed by it pursuant to such Assignment and Acceptance, shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assignor Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under the Loan Documents.
(c) Any Lender may at any time sell to one or more commercial banks or other Persons not Affiliates of Culligan the Company (a "Participant") participating interests in any LoanLoans, the Commitment of such Lender and the other interests of such Lender (the "originating Lender") hereunder and under the other Loan Documents; provided, however, that (i) the originating Lender's obligations under this Agreement shall remain unchanged, (ii) the originating Lender shall remain solely responsible for the performance of such obligations, (iii) the BorrowersCompany, the Issuing Lender, Agent and the Swing Line Lender and the Administrative Agent shall continue to deal solely and directly with the originating Lender in connection with the originating Lender's rights and obligations under this Agreement and the other Loan Documents, and (iv) no Lender shall transfer or grant any participating interest under which the Participant has rights to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment, consent or waiver would require unanimous consent of the Lenders as described in the first proviso to Section 1210.
1. In the case of any such participation, the Participant shall be entitled to the benefit of Sections 4.13.1, 4.3, 4.4, 4.6 3.2 and 12.5 10.5 as though it were also a Lender hereunderhereunder (provided that no Participant shall receive any greater amount pursuant to Article III than would have been paid to the participating Lender if no participation had been sold), and if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, the each Participant shall be deemed to have the right of set-off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement. Notwithstanding any other provision of this Section, sales of participations required under the Intercreditor Agreement shall be permitted.
(d) Notwithstanding any other provision in this Agreement, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement and any Note held by it in favor of any Federal Reserve Bank in accordance with Regulation A of the FRB or U.S. Treasury Regulation 31 CFR (S)203.14Section 203.14, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law.
Appears in 1 contract
Samples: Credit Agreement (Truserv Corp)
Assignments, Participations, etc. (a) Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby and, to the extent expressly contemplated hereby, the Affiliates of each of the Administrative Agent and the Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement.
(b) Any Lender maymay assign to one or more assignees (each, with an "Assignee") all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitment and the Loans at the time owing to it); provided that (i) except in the case of an assignment to a Lender or a Lender Affiliate, each of the Borrower and the Administrative Agent must give their prior written consent of Culligan, the Administrative Agent, the Issuing Lender and the Swing Line Lender to such assignment (which consents consent shall not be unreasonably withheld), at any time assign (ii) except in the case of an assignment to a Lender or a Lender Affiliate or an assignment 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 delegate Acceptance with respect to one or more Eligible Assignees (provided that no written consent of Culligan, such assignment is delivered to the Administrative Agent, the Issuing Lender or the Swing Line Lender ) shall not be required in connection with any assignment and delegation by a Lender to an Eligible Assignee that is an Affiliate of such Lender (so long as such assignment will not result in any increased costs to the Borrowers) or to another Lender) (less than $5,000,000 unless each an "Assignee") all or any part of the Loans, the Commitment, the L/C Obligations and the other rights and obligations of such Lender hereunder, in a minimum Dollar Equivalent amount of U.S. $5,000,000 or, if less, the entire amount of the Loans, Commitment, L/C Obligations and other rights and obligations of such Lender hereunder; provided that (i) the Borrowers Borrower and the Administrative Agent may continue otherwise 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, except that this clause (iii) shall not apply to deal solely and directly with such Lender rights in connection with respect of outstanding Bid Loans, (iv) the interest so assigned to an Assignee until (x) written notice of such assignment, together with payment instructions, addresses and related information with respect to the Assignee, shall have been given to Culligan and the Administrative Agent by such Lender Assignor in respect of each assignment shall execute and the Assignee; (y) such Lender and the Assignee shall have delivered deliver to the Borrowers and the Administrative Agent an Assignment and Acceptance in the form of Exhibit H ("Assignment and Acceptance") , together with any Note or Notes subject to such assignment; a processing and recordation fee of $3,500, and (zv) such Lender or the Assignee Assignee, if it shall have paid not be a Lender, shall deliver to the Administrative Agent a processing fee in the amount of U.S. $3,000an Administrative Questionnaire; and provided further that any consent of the Borrower otherwise required under this paragraph shall not be required if an Event of Default under clause (iif) concurrently with such assignmentor (g) of Section 8.01 has occurred and is continuing. Subject to acceptance and recording thereof pursuant to paragraph (d) of this Section, the assignor Lender shall assign to the Assignee a proportionate share of its loans, commitment and other rights and obligations under the Long-Term Credit Agreement.
(b) From from and after the effective date that the Administrative Agent notifies the assignor Lender that it has received (and, to the extent required, provided its consent and received the consents of Culligan, the Issuing Lender and the Swing Line Lender with respect to) an executed specified in each Assignment and Acceptance and payment of the above-referenced processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights hereunder have been of the interest assigned to it and obligations hereunder have been assumed by it pursuant to such Assignment and Acceptance, shall have the rights and obligations of a Lender under the Loan Documentsthis Agreement, and (ii) the assignor assigning Lender thereunder shall, to the extent that rights and obligations hereunder and under of the other Loan Documents have been interest assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under this Agreement (and, in the Loan Documentscase of an Assignment and Acceptance 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 3.05, 3.08, 3.09, 3.10, 3.11 and 10.05)(but only to the extent such Lender notifies the Borrower of any claim under such Section within 90 days after it obtains knowledge thereof). Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this paragraph 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 (e) of this Section.
(c) The Administrative Agent, acting for this purpose as an agent of the Borrower, shall maintain at one of its offices in the United States a copy of each Assignment and Acceptance delivered to it and a register for the recordation of the names and addresses of the Lenders, and the Commitment of, and principal amount of the Loans owing to, each Lender pursuant to the terms hereof from time to time (the "Register"). The entries in the Register shall be conclusive, and the Borrower, the Administrative Agent and the Lenders may treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available for inspection by the Borrower, and any Lender, at any reasonable time and from time to time upon reasonable prior notice.
(d) Upon its receipt of a duly completed Assignment and Acceptance 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) of this Section and any written consent to such assignment required by paragraph (b) of this Section, the Administrative Agent shall accept such Assignment and Acceptance and record the information contained therein in the Register. No assignment shall be effective for purposes of this Agreement unless it has been recorded in the Register as provided in this paragraph.
(e) Any Lender may at any time may, without the consent of the Borrower or the Administrative Agent, sell participations to one or more commercial banks or other Persons not Affiliates of Culligan entities (each a "Participant") participating interests in any Loan, the Commitment all or a portion of such Lender Lender's rights and obligations under this Agreement (including all or a portion of its Commitment and the other interests of such Lender (the "originating Lender") hereunder and under the other Loan DocumentsLoans owing to it); provided, however, provided that (i) the originating such Lender's obligations under this Agreement shall remain unchanged, (ii) the originating such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, obligations and (iii) the BorrowersBorrower, the Issuing Lender, the Swing Line Lender and the Administrative Agent and the other Lenders shall continue to deal solely and directly with the originating such Lender in connection with the originating such Lender's rights and obligations under this Agreement. Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and the other Loan Documents, and (iv) no Lender shall transfer or grant any participating interest under which the Participant has rights to approve any amendment toamendment, or any consent modification or waiver with respect toof any provision of this Agreement; provided that such agreement or instrument may provide that such Lender will not, this Agreement or any other Loan Document, except to without the extent such amendment, consent or waiver would require unanimous consent of the Lenders as Participant, agree to any amendment, modification or waiver described in the first proviso to Section 12.
110.02 that affects such Participant. In the case Subject to paragraph (f) of any such participationthis Section, the Borrower agrees that each Participant shall be entitled to the benefit benefits of Sections 4.13.05 (other than 3.05(f)), 4.33.06, 4.43.08, 4.6 and 12.5 as though it were also a Lender hereunder, and if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, the Participant shall be deemed to have the right of set-off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement.
(d) Notwithstanding any other provision in this Agreement, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement and any Note held by it in favor of any Federal Reserve Bank in accordance with Regulation A of the FRB or U.S. Treasury Regulation 31 CFR (S)203.14, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law.3.09 and
Appears in 1 contract
Assignments, Participations, etc. (a) Any Lender Bank may, with the written consent of Culligan, the Administrative Agent, the Issuing Lender and the Swing Line Lender (which consents consent shall not be unreasonably withheld), at any time assign and delegate to one or more Eligible Assignees (provided that no written consent of Culligan, the Administrative Agent, the Issuing Lender or the Swing Line Lender Agent shall be required in connection with any assignment and delegation by a Lender Bank to an Eligible Assignee that is an Affiliate of such Lender (so long as such assignment will not result in any increased costs to the Borrowers) or to another LenderBank) (each an "AssigneeASSIGNEE") all all, or any ratable part of all, of the Loans, the Commitmentobligations, the L/C Obligations and the other rights and obligations of such Lender Bank hereunder, in a minimum Dollar Equivalent amount of U.S. $5,000,000 or5,000,000; PROVIDED, if lessHOWEVER, that the entire amount of the Loans, Commitment, L/C Obligations and other rights and obligations of such Lender hereunder; provided that (i) the Borrowers Borrower and the Administrative Agent may continue to deal solely and directly with such Lender Bank in connection with the interest so assigned to an Assignee until (xi) written notice of such assignment, together with payment instructions, addresses and related information with respect to the Assignee, shall have been given to Culligan the Borrower and the Administrative Agent by such Lender Bank and the Assignee; (yii) such Lender Bank and the its Assignee shall have delivered to the Borrowers Borrower and the Administrative Agent an Assignment assignment and Acceptance acceptance agreement in the form of Exhibit H EXHIBIT G ("Assignment and AcceptanceASSIGNMENT AND ACCEPTANCE") together with any Note or Notes subject to such assignment; assignment and (ziii) such Lender the assignor Bank or the Assignee shall have has paid to the Administrative Agent a processing fee in the amount of U.S. $3,000; and (ii) concurrently with such assignment, the assignor Lender shall assign to the Assignee a proportionate share of its loans, commitment and other rights and obligations under the Long-Term Credit Agreement.
(b) From and after the date that the Administrative Agent notifies the assignor Lender Bank that it has received (and, to the extent required, and provided its consent and received the consents of Culligan, the Issuing Lender and the Swing Line Lender with respect to) an executed Assignment and Acceptance and payment of the above-referenced processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it and obligations hereunder have been assumed by it pursuant to such Assignment and Acceptance, shall have the rights and obligations of a Lender Bank under the Loan Documents, and (ii) the assignor Lender Bank shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under the Loan Documents.
(c) Within five Business Days after its receipt of notice by the Administrative Agent that it has received an executed Assignment and Acceptance and payment of the processing fee, (and provided that it consents to such assignment in accordance with SUBSECTION 10.8(a)), the Borrower shall execute and deliver to the Administrative Agent, new Notes evidencing such Assignee's assigned Loans, Obligations and, if the assignor Bank has retained a portion of its Loans, replacement Notes in the principal amount of the Loans retained by the assignor Bank (such Notes to be in exchange for, but not in payment of, the Notes held by such Bank). Immediately upon each Assignee's making its processing fee payment under the Assignment and Acceptance, this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the Administrative Agent shall deliver a revised SCHEDULE 2.1 to the Banks and the Borrower to reflect such assignment.
(d) Any Lender Bank may at any time sell to one or more commercial banks or other Persons not Affiliates of Culligan the Borrower (a "ParticipantPARTICIPANT") participating interests in any Loan, the Commitment of such Lender Loans and the other interests of such Lender that Bank (the "originating LenderBank") hereunder and under the other Loan Documents; providedPROVIDED, howeverHOWEVER, that (i) the originating LenderBank's obligations under this Agreement shall remain unchanged, (ii) the originating Lender Bank shall remain solely responsible for the performance of such obligations, (iii) the Borrowers, the Issuing Lender, the Swing Line Lender Borrower and the Administrative Agent shall continue to deal solely and directly with the originating Lender Bank in connection with the originating LenderBank's rights and obligations under this Agreement and the other Loan Documents, and (iv) no Lender Bank shall transfer or grant any participating interest under which the Participant has rights to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment, consent or waiver would require unanimous consent postpone or delay any date fixed for payment of principal, interest, fees or other amounts hereunder or reduce the Lenders as described in the first proviso to Section 12.
1principal of or rate of interest specified herein. In the case of any such participation, the Participant shall be entitled to not have any rights under this Agreement, or any of the benefit of Sections 4.1, 4.3, 4.4, 4.6 and 12.5 as though it were also a Lender hereunderother Loan Documents, and all amounts payable by the Borrower hereunder shall be determined as if such Bank had not sold such participation; except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, the each Participant shall be deemed to have the right of set-off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender Bank under this Agreement.
(de) Notwithstanding any other provision in this Agreement, any Lender Bank may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement and any the Note held by it in favor of any Federal Reserve Bank in accordance with Regulation A of the FRB or U.S. Treasury Regulation 31 CFR (S)203.14Section 203.14, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law.
Appears in 1 contract
Assignments, Participations, etc. (a) Subject to the consents required under Section 11.08(b), each Lender reserves the right, at any time, to syndicate its Commitments, Loans, rights and obligations under this Agreement and the Loan Documents to one or more Eligible Assignees identified by it. Upon request, Borrowers shall actively assist each such Lender in connection with any proposed syndication.
(b) Any Lender may, with the written consent of Culligan, the Administrative Agent, the Issuing Lender and the Swing Line Lender (which consents consent shall not be unreasonably withheld), at any time assign and delegate to one or more Eligible Assignees (provided that no written consent of Culligan, the Administrative Agent, the Issuing Lender or the Swing Line Lender Agent shall be required in connection with any assignment and delegation by a Lender to an Eligible Assignee that is an Affiliate of such Lender (so long as such assignment will not result in any increased costs to the Borrowers) or to another a bank loan fund managed by such Lender) (each an "“Assignee"”) (i) all or any part of the Loans, the CommitmentCommitments, the L/C Obligations and the other rights and obligations of such Lender hereunder, or (ii) any ratable part thereof in a minimum Dollar Equivalent amount of U.S. Five Million Dollars ($5,000,000 or5,000,000); provided, if less, the entire amount of the Loans, Commitment, L/C Obligations and other rights and obligations of such Lender hereunder; provided that (i) the Borrowers and the Administrative Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (xA) written notice of such assignment, together with payment instructions, addresses and related information with respect to the Assignee, shall have been given to Culligan Borrowers and the Administrative Agent by such Lender and the Assignee; (yB) such Lender and the its Assignee shall have delivered to the Borrowers Borrower Representative and the Administrative Agent an Assignment and Acceptance in the form of Exhibit H D ("“Assignment and Acceptance") together with any Note or Notes subject to such assignment; ”), and (zC) such the assignor Lender or the Assignee shall have has paid to the Administrative Agent a processing fee in the amount of U.S. Two Thousand Five Hundred Dollars ($3,000; and (ii2,500) concurrently with such assignment, the assignor Lender shall assign to unless the Assignee a proportionate share of its loans, commitment and other rights and obligations under the Long-Term Credit Agreementis an existing Lender.
(bc) From and after the date that the Administrative Agent notifies the assignor Lender that it has received (and, to the extent required, and provided its consent and received the consents of Culligan, the Issuing Lender and the Swing Line Lender with respect to) an executed Assignment and Acceptance and Acceptance, payment of the above-referenced processing feefee if required under Section 11.08(b), (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder and under the Loan Documents have been assigned to it and obligations hereunder have been assumed by it pursuant to such Assignment and Acceptance, shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assignor Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under the Loan Documents.
(cd) Immediately upon the giving of Agent’s notice under Section 11.08(b), this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitments of the assigning Lender pro tanto.
(e) Any Lender may at any time sell to one or more commercial banks Lenders or other Persons not Affiliates of Culligan any Credit Party (a "“Participant"”) participating interests in any LoanLoans, the Commitment of such that Lender and the other interests of such that Lender (the "“originating Lender"”) hereunder and under the other Loan Documents; provided, however, that (i) the originating Lender's ’s obligations under this Agreement shall remain unchanged, (ii) the originating Lender shall remain solely responsible for the performance of such obligations, and (iii) the Borrowers, the Issuing Lender, the Swing Line Lender Banks and the Administrative Agent shall continue to deal solely and directly with the originating Lender in connection with the originating Lender's Lender rights and obligations under this Agreement and the other Loan Documents, and (iv) no Lender shall transfer or grant any participating interest under which the Participant has rights to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment, consent or waiver would require unanimous consent of the Lenders as described in the first proviso to Section 12.
1. In the case of any such participation, the Participant shall be entitled to the benefit of Sections 4.14.01, 4.3, 4.4, 4.6 4.03 and 12.5 11.05 as though it were also a Lender hereunder, and if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, the Participant shall be deemed to have the right of set-off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement.
(df) Notwithstanding any other provision in this Agreement, any Lender may at any time create grant a security interest in, or pledgeotherwise assign as collateral, all or any portion of its rights under and this Agreement, whether now owned or hereafter acquired (including rights to payments of principal or interest in this Agreement and on the Loans), to (A) any Note held by it in favor of any Federal Reserve Bank in accordance with federal reserve bank (pursuant to Regulation A of the FRB or U.S. Treasury Regulation 31 CFR (S)203.14, and such Federal Reserve Bank may enforce Board), without notice to Agent or (B) any holder of, or trustee for the benefit of the holders of, such pledge Lender’s Indebtedness or security interest equity securities, by notice to Agent; provided, however, that no such holder or trustee, whether because of such grant or assignment or any foreclosure thereon (unless such foreclosure is made through an assignment in accordance with clause (b) above), shall be entitled to any manner permitted under applicable lawrights of such Lender hereunder and no such Lender shall be relieved of any of its obligations hereunder.
Appears in 1 contract
Assignments, Participations, etc. (a) Any Lender -------------------------------- - may, with the written consent of Culligan, (x) the Borrower (at all times other than during the existence of an Event of Default) and the Administrative Agent, the Issuing Lender and the Swing Line Lender (which consents shall not be unreasonably withheld), and (y) the LC Issuer at any time assign and delegate to one or more Eligible Assignees (provided that no written consent of Culligan, the Borrower or the Administrative Agent, the Issuing Lender or the Swing Line Lender Agent shall be required in connection with any assignment and delegation by a Lender to an Eligible Assignee that is an Affiliate of such Lender (so long as such assignment will not result in any increased costs to the Borrowers) or to another Lender) (each an "Assignee") all all, or any -------- ratable part of all, of the LoansCredit Extensions, the Commitment, the L/C Obligations Commitments and the other rights and obligations of such Lender hereunder, provided, however, that (x) the -------- ------- aggregate principal amount of the Commitment assigned by any Lender to someone other than another Lender shall be in a minimum Dollar Equivalent amount of U.S. $5,000,000 or, (or if less, the entire Commitment then held by such Lender) and (y) after giving effect to any such assignment by a Lender, the aggregate amount of the Loans, Commitment, L/C Obligations and other rights and obligations of Commitments and/or Credit Extensions held by such assigning Lender is at least $5,000,000 (unless such Lender hereunder; provided that (i) has assigned the Borrowers entire Commitment and Credit Extensions then held by it). The Borrower and the Administrative Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (xi) written notice of such assignment, together with payment instructions, addresses and related information with respect to the Assignee, shall have been given to Culligan the Borrower and the Administrative Agent by such Lender and the Assignee; (yii) such Lender and the its Assignee shall have delivered to the Borrowers Borrower and the Administrative Agent an Assignment and Acceptance in the form of Exhibit H D ("Assignment and Acceptance") together with any Note or Notes subject to such assignment; and (ziii) such the assignor Lender or the --------- ------------------------- Assignee shall have has paid to the Administrative Agent a processing fee in the amount of U.S. $3,000; and (ii) concurrently with such assignment, the assignor Lender shall assign to the Assignee a proportionate share of its loans, commitment and other rights and obligations under the Long-Term Credit Agreement.
(b) From and after the date that the Administrative Agent notifies the assignor Lender that it has received (and, to the extent required, and provided its consent and received the consents of Culligan, the Issuing Lender and the Swing Line Lender with respect to) an executed Assignment and Acceptance and payment of the above-referenced processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it and obligations hereunder have been assumed by it pursuant to such Assignment and Acceptance, shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assignor Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under the Loan Documents.
(c) Immediately upon each Assignee's making its processing fee payment under the Assignment and Acceptance, this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitments of the assigning Lender pro tanto. --- -----
(d) Any Lender may at any time sell to one or more commercial banks or other Persons not Affiliates of Culligan the Borrower (a "Participant") participating ----------- interests in any LoanCredit Extension, the Commitment of such that Lender and the other interests of such that Lender (the "originating Lender") hereunder and under the ------------------ other Loan Documents; provided, however, that (i) the originating Lender's -------- ------- obligations under this Agreement shall remain unchanged, (ii) the originating Lender shall remain solely responsible for the performance of such obligations, (iii) the Borrowers, the Issuing Lender, the Swing Line Lender Borrower and the Administrative Agent shall continue to deal solely and directly with the originating Lender in connection with the originating Lender's rights and obligations under this Agreement and the other Loan Documents, and (iv) no Lender shall transfer or grant any participating interest under which the Participant has rights to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment, consent or waiver would require unanimous consent of the Lenders as described in the first proviso to Section 12.with
1. In the case of any such ------- ------------ participation, the Participant shall be entitled to the benefit of Sections 4.1, 4.3, 4.4, 4.6 ------------ 4.3 and 12.5 11.5 to the extent the Lender selling such participation would be so --- ---- entitled as though it were also a Lender hereunder, and if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, the each Participant shall be deemed to have the right of set-off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement.
(de) Notwithstanding any other provision in this Agreement, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement and any Note held by it in favor of any Federal Reserve Bank Lender in accordance with Regulation A of the FRB or U.S. Treasury Regulation 31 CFR (S)203.14, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law.
(f) Notwithstanding the foregoing, the LC Issuer may not assign its obligation to issue Letters of Credit without the consent of the Borrower.
Appears in 1 contract
Assignments, Participations, etc. (a) Any Lender may, with the written consent of Culligan, the Administrative Borrower at all times other than during the existence of an Event of Default and the Agent and the Letter of Credit Agent, the Issuing Lender and the Swing Line Lender (which consents shall not be unreasonably withheld)withheld or delayed, at any time assign and delegate to one or more Eligible Assignees (provided that no written consent of Culliganthe Borrower, the Administrative Agent, the Issuing Lender Agent or the Swing Line Lender Letter of Credit Agent shall be required in connection with any assignment and delegation by a Lender Bank to an Eligible Assignee that is an Affiliate of such Lender (so long as such assignment will not result in any increased costs to the Borrowers) or to another LenderBank) (each an "Assignee") all all, or any ratable part of all, of the Loans, the Commitment, the L/C Obligations Loans and its Commitment and the other rights and obligations of such the Lender hereunder, in a minimum Dollar Equivalent amount of U.S. $5,000,000 or, if less, the entire amount remaining Commitment of such Lender; provided, however, that after giving effect to any such assignment, the Commitment of the Loansassignor Lender shall be at least $5,000,000 unless such Lender's entire commitment is assigned; and provided, Commitmentfurther, L/C Obligations and other rights and obligations of such Lender hereunder; provided that (i) the Borrowers Borrower and the Administrative Agent may continue to deal solely and directly with such assigning Lender in connection with the interest so assigned to an Assignee until (xi) written notice of such assignment, together with payment instructions, addresses and related information with respect to the Assignee, shall have been given to Culligan the Borrower and the Administrative Agent by such Lender and the Assignee; (yii) such Lender and the its Assignee shall have delivered to the Borrowers Borrower and the Administrative Agent an Assignment and Acceptance in Agreement (the form of Exhibit H ("Assignment and Acceptance") ), together with any Note note or Notes subject to such assignment; and (z) such Lender or the Assignee shall have paid to the Administrative Agent a processing fee in the amount of U.S. $3,000; and (ii) concurrently with such assignment, the assignor Lender shall assign to the Assignee a proportionate share of its loans, commitment and other rights and obligations under the Long-Term Credit Agreement.
(b) From and after the date that the Administrative Agent notifies the assignor Lender that it has received (and, to the extent required, and provided its consent and received the consents of Culligan, the Issuing Lender and the Swing Line Lender with respect to) an executed Assignment and Acceptance and payment of the above-referenced processing feeAcceptance, (i) the Assignee assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it and obligations hereunder have been assumed by it pursuant to such Assignment and Acceptance, shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assignor Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under the Loan Documents.
(c) Any Within five Business Days after receipt of notice from the Agent that the Agent has received an executed Assignment and Acceptance (and provided that it consents to such assignment if such consent is required in accordance with subsection 11.5(a)), if requested by the assignor Lender may at any time sell to one or more commercial banks or other Persons not Affiliates of Culligan (a "Participant") participating interests in any Loanthe Assignee, through the Agent, the Borrower shall execute and deliver to the Agent new Notes evidencing such Assignee's assigned Loans and Commitment and, if the assignor Lender has retained a portion of such Lender its Loans and its Commitment, replacement Notes in the other interests principal amount of such the Loans retained by the assignor Lender (such Notes to be in exchange for, but not in payment of, the Notes held by such Lender), and upon delivery by the Borrower to the Agent of the new Notes evidencing the assigned Loans and Commitment and, if applicable, any replacement Notes in favor of the assignor Lender, the Agent shall mark the original Notes payable xx xhe assignor Lender "originating Lender") hereunder replaced and under cancelled" and deliver such Notes to the other Loan Documents; providedBorrower. Upon execution of the Assignment and Acceptance, however, that (i) the originating Lender's obligations under this Agreement shall remain unchangedbe deemed to be amended to the extent, (ii) but only to the originating Lender shall remain solely responsible for extent, necessary to reflect the performance addition of such obligations, (iii) the Borrowers, the Issuing Lender, the Swing Line Lender Assignee and the Administrative Agent resulting adjustment of the Commitments arising therefrom. The Commitment allocated to each Assignee shall continue to deal solely and directly with reduce such Commitment of the originating assigning Lender pro tanto.
(d) Each lender may grant participations in connection with the originating Lender's rights and obligations under this Agreement and the other Loan Documents, and (iv) no Lender shall transfer or grant any participating interest under which the Participant has rights to approve any amendment to, all or any consent or waiver with respect toportion of its Loan and Commitment, but such grant shall not entitle the participant to any direct rights against Borrower under the terms of this Agreement or any other Loan Document, except to the extent such amendment, consent or waiver would require unanimous consent of the Lenders as described in the first proviso to Section 12.
1. In the case of any such participation, the Participant shall be entitled to the benefit of Sections 4.1, 4.3, 4.4, 4.6 and 12.5 as though it were also a Lender hereunder, and if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, the Participant shall be deemed to have the right of set-off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement.
(d) Notwithstanding any other provision in this Agreement, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement and any Note held by it in favor of any Federal Reserve Bank in accordance with Regulation A of the FRB or U.S. Treasury Regulation 31 CFR (S)203.14, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law.
Appears in 1 contract
Samples: Loan Agreement (Merix Corp)
Assignments, Participations, etc. (a) Any Lender may, with the written consent of Culligan, the Administrative Agent, the Issuing Lender Agent and the Swing Line Lender (Borrower which consents shall not be unreasonably withheld), conditioned or delayed, at any time assign and delegate to one or more Eligible Assignees (provided that no written consent of Culligan, the Administrative Agent, the Issuing Lender or the Swing Line Lender Agent shall be required in connection with any assignment and delegation by a Lender to an Eligible Assignee that is an Affiliate of such Lender (so long as such assignment will not result in any increased costs to the Borrowers) or to another Lender) (each an "Assignee") all all, or any ratable part of all, of the Loans, the Commitment, the L/C Obligations Commitments and the other rights and obligations of such Lender hereunder, in a minimum Dollar Equivalent amount of U.S. the lesser of $5,000,000 or, if less, or the entire amount of the Loans, Commitment, L/C Obligations and other rights and obligations Commitment of such Lender hereunderLender; provided provided, however, that (i) the Borrowers Borrower and the Administrative Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (xi) written notice of such assignment, together with payment instructions, addresses and related information with respect to the Assignee, shall have been given to Culligan the Borrower and the Administrative Agent by such Lender and the Assignee; (yii) such Lender and the its Assignee shall have delivered to the Borrowers Borrower and the Administrative Agent an Assignment and Acceptance in the form of Exhibit H I ("Assignment and Acceptance") together with any Note or Notes subject to such assignment; assignment and (ziii) such the assignor Lender or the Assignee shall have has paid to the Administrative Agent a processing fee in the amount of U.S. $3,000; and (ii) concurrently with such assignment, the assignor Lender shall assign to the Assignee a proportionate share of its loans, commitment and other rights and obligations under the Long-Term Credit Agreement3,500.
(b) From Subject to the conditions set forth in Section 12.8(a), from and after the date that the Administrative Agent notifies the assignor Lender that it has received (and, to the extent required, and provided its consent and received the consents of Culligan, the Issuing Lender and the Swing Line Lender with respect to) an executed Assignment and Acceptance and payment of the above-referenced processing feeAcceptance, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it and obligations hereunder have been assumed by it pursuant to such Assignment and Acceptance, shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assignor Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under the Loan Documents.
(c) Subject to the conditions set forth in Section 12.8(a), within five Business Days after its receipt of notice by the Agent that it has received an executed Assignment and Acceptance, the Borrower shall execute and deliver to the Agent, new Notes evidencing such Assignee's assigned Loans and Commitment and, if the assignor Lender has retained a portion of its Loans and its Commitment, replacement Notes in the principal amount of the Loans retained by the assignor Lender (such Notes to be in exchange for, but not in payment of, the Notes held by such Lender). Immediately upon each Assignee's making its processing fee payment under the Assignment and Acceptance, this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitments of the assigning Lender pro tanto. ---------
(d) Any Lender may at any time sell to one or more commercial banks or other Persons not Affiliates of Culligan the Borrower (a "Participant") participating interests in any LoanLoans, the Commitment of such that Lender and the other interests of such that Lender (the "originating Lender") hereunder and under the other Loan Documents; provided, however, that (i) the originating Lender's obligations under this Agreement shall remain unchanged, (ii) the originating Lender shall remain solely responsible for the performance of such obligations, (iii) the Borrowers, the Issuing Lender, the Swing Line Lender Borrower and the Administrative Agent shall continue to deal solely and directly with the originating Lender in connection with the originating Lender's rights and obligations under this Agreement and the other Loan Documents, and (iv) no Lender shall transfer or grant any participating interest under which the Participant has rights to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment, consent or waiver would require unanimous consent of the Lenders as described in the first proviso to Section 12.
1. In the case of any such participation, the Participant shall be entitled to the benefit of Sections 4.1, 4.3, 4.4, 4.6 4.3 and 12.5 as though it were also a Lender hereunder, and if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, the each Participant shall be deemed to have the right of set-off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement.
(de) Notwithstanding any other provision in this Agreement, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement and any the Note held by it in favor of any Federal Reserve Bank in accordance with Regulation A of the FRB or U.S. Treasury Regulation 31 CFR C.F.R. (S)203.14S) 203.14, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law.
(f) The Borrower agrees to actively assist and cooperate with U. S. Bank in the initial syndication of the Loans, including assistance in the preparation and review of information and participation in one or more meetings with prospective lenders.
Appears in 1 contract
Assignments, Participations, etc. (ai) Any Subject to the conditions set forth in paragraph (a)(ii) below, any Lender maymay assign to one or more assignees (each, an “Assignee”), other than a natural person, all or a portion of its rights and obligations under this Credit Agreement (including all or a portion of its Commitments and the Loans at the time owing to it) with the prior written consent of Culligan(A) the Borrower (such consent not to be unreasonably withheld or delayed), provided that (1) no consent of the Borrower shall be required for an assignment to a Lender, an affiliate of a Lender, an Approved Fund (as defined below) or, if an Event of Default has occurred and is continuing, any other Person and (2) only with respect to an assignment of a Term Loan, the Borrower shall be deemed to have consented to any such assignment if the Borrower has not responded to any request for such consent within ten (10) Business Days of the delivery thereof; and (B) the Administrative Agent, provided that no consent of the Issuing Administrative Agent shall be required for an assignment of all or any portion of a Loan or a Revolving Commitment to a Lender, an affiliate of a Lender or an Approved Fund.
(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 or an assignment of the entire remaining amount of the assigning Lender’s Commitments or Loans, the amount of the Commitments or 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 Swing Line Lender (which consents Administrative Agent) shall not be unreasonably withheldless than $5,000,000 or a higher integral multiple of $1,000,000 in excess thereof (or 100% of the assigning Lender’s remaining Loans), at any time assign and delegate to one or more Eligible Assignees (provided that no written consent of Culligan, unless the Administrative Agent, the Issuing Lender or the Swing Line Lender shall be required in connection with any assignment and delegation by a Lender to an Eligible Assignee that is an Affiliate of such Lender (so long as such assignment will not result in any increased costs to the Borrowers) or to another Lender) (each an "Assignee") all or any part of the Loans, the Commitment, the L/C Obligations and the other rights and obligations of such Lender hereunder, in a minimum Dollar Equivalent amount of U.S. $5,000,000 or, if less, the entire amount of the Loans, Commitment, L/C Obligations and other rights and obligations of such Lender hereunder; provided that (i) the Borrowers Borrower and the Administrative Agent otherwise consent, provided that (1) no such consent of the Borrower shall be required if an Event of Default has occurred and is continuing and (2) such amounts shall be aggregated in respect of each Lender and its affiliates or Approved Funds, if any;
(1) 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 (2) the assigning Lender shall have paid in full any amounts owing by it to the Administrative Agent (and the Borrower and the Agents may continue to deal solely and directly with such the assigning Lender in connection with the interest so assigned until the conditions referred to an Assignee until in clauses (x1) written notice of such assignment, together with payment instructions, addresses and related information with respect to (2) shall have been satisfied); and
(C) the Assignee, if it shall have been given not be a Lender, shall deliver to Culligan and the Administrative Agent by such Lender and the Assignee; (y) such Lender and the Assignee shall have delivered to the Borrowers and the Administrative Agent an Assignment and Acceptance administrative questionnaire in the form of Exhibit H ("Assignment and Acceptance") together with any Note or Notes subject to such assignment; and (z) such Lender or which the Assignee shall have paid to the Administrative Agent a processing fee in the amount of U.S. $3,000; and (ii) concurrently with such assignment, the assignor Lender shall assign to the Assignee a proportionate share of its loans, commitment and other rights and obligations under the Long-Term Credit Agreement.
(b) From and after the date that the Administrative Agent notifies the assignor Lender that it has received (and, to the extent required, provided its consent and received the consents of Culligan, the Issuing Lender and the Swing Line Lender with respect to) an executed Assignment and Acceptance and payment of the above-referenced processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights hereunder have been assigned to it and obligations hereunder have been assumed by it pursuant to such Assignment and Acceptance, shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assignor Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under the Loan Documents.
(c) Any Lender may at any time sell to designates one or more commercial banks credit contacts to whom all syndicate-level information (which may contain material non-public information about the Borrower and its Affiliates and their related parties or other Persons not Affiliates of Culligan (a "Participant"their respective securities) participating interests in any Loan, the Commitment of will be made available and who may receive such Lender and the other interests of such Lender (the "originating Lender") hereunder and under the other Loan Documents; provided, however, that (i) the originating Lender's obligations under this Agreement shall remain unchanged, (ii) the originating Lender shall remain solely responsible for the performance of such obligations, (iii) the Borrowers, the Issuing Lender, the Swing Line Lender and the Administrative Agent shall continue to deal solely and directly with the originating Lender in connection with the originating Lender's rights and obligations under this Agreement and the other Loan Documents, and (iv) no Lender shall transfer or grant any participating interest under which the Participant has rights to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment, consent or waiver would require unanimous consent of the Lenders as described in the first proviso to Section 12.
1. In the case of any such participation, the Participant shall be entitled to the benefit of Sections 4.1, 4.3, 4.4, 4.6 and 12.5 as though it were also a Lender hereunder, and if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, the Participant shall be deemed to have the right of set-off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement.
(d) Notwithstanding any other provision in this Agreement, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement and any Note held by it in favor of any Federal Reserve Bank information in accordance with Regulation A of the FRB or U.S. Treasury Regulation 31 CFR (S)203.14assignee’s compliance procedures and applicable laws, including Federal and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable lawstate securities laws.
Appears in 1 contract
Assignments, Participations, etc. (a) Any Lender Bank may, with the written consent of Culligan, the Administrative Company at all times other than during the existence of an Event of Default and the Syndication Agent, the Issuing Lender and the Swing Line Lender (which consents shall not be unreasonably withheld), at any time assign and delegate to one or more Eligible Assignees (provided that no written consent of Culligan, the Administrative Agent, the Issuing Lender Company or the Swing Line Lender Syndication Agent shall be required in connection with any assignment and delegation by a Lender Bank to an Eligible Assignee that is an Affiliate of such Lender (so long as such assignment will not result in any increased costs to the Borrowers) or to another LenderBank) (each an "AssigneeASSIGNEE") all all, or any ratable part of all, of the Loans, the Commitment, the L/C Obligations Commitment and the other rights and obligations of such Lender Bank hereunder, in a minimum Dollar Equivalent amount of U.S. $5,000,000 or5,000,000; PROVIDED, if lessHOWEVER, that the entire amount of the Loans, Commitment, L/C Obligations and other rights and obligations of such Lender hereunder; provided that (i) the Borrowers Company and the Administrative Agent Agents may continue to deal solely and directly with such Lender Bank in connection with the interest so assigned to an Assignee until (xi) written notice of such assignment, together with payment instructions, addresses and related information with respect to the Assignee, shall have been given to Culligan the Company and the Administrative Agent Agents by such Lender Bank and the Assignee; (yii) such Lender Bank and the its Assignee shall have delivered to the Borrowers Company and the Administrative Syndication Agent an Assignment and Acceptance in the form of Exhibit H EXHIBIT E ("Assignment and AcceptanceASSIGNMENT AND ACCEPTANCE") together with any Note or Notes subject to such assignment; and (ziii) such Lender the assignor Bank or the Assignee shall have has paid to the Syndication Agent and the Administrative Agent a processing fee in the amount of U.S. $3,000; and (ii) concurrently with such assignment, the assignor Lender shall assign to 1,500 each except where the Assignee a proportionate share is an affiliate of its loans, commitment and other rights and obligations under the Long-Term Credit Agreementassigning Bank.
(b) From and after the date that the Administrative Syndication Agent notifies the assignor Lender Bank that it has received (and, to the extent required, and provided its consent and received the consents of Culligan, the Issuing Lender and the Swing Line Lender with respect to) an executed Assignment and Acceptance and payment of the above-referenced processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it and obligations hereunder have been assumed by it pursuant to such Assignment and Acceptance, shall have the rights and obligations of a Lender Bank under the Loan Documents, and (ii) the assignor Lender Bank shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under the Loan Documents.
(c) Within five Business Days after its receipt of notice by the Syndication Agent that it has received an executed Assignment and Acceptance and payment of the processing fee, (and provided that it consents to such assignment in accordance with subsection 10.8(a)), the Company shall execute and deliver to the Syndication Agent, new Notes evidencing such Assignee's assigned Loans and Commitment and, if the assignor Bank has retained a portion of its Loans and its Commitment, replacement Notes in the principal amount of the Loans retained by the assignor Bank (such Notes to be in exchange for, but not in payment of, the Notes held by such Bank). Immediately upon each Assignee's making its processing fee payment under the Assignment and Acceptance, this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitments of the assigning Bank by the amount the Commitment assigned.
(d) Any Lender Bank may at any time sell to one or more commercial banks or other Persons not Affiliates of Culligan the Company (a "ParticipantPARTICIPANT") (other than investment companies) participating interests in any LoanLoans, the Commitment of such Lender that Bank and the other interests of such Lender that Bank (the "originating LenderOriginating Bank") hereunder and under the other Loan Documents; providedPROVIDED, howeverHOWEVER, that (i) the originating LenderBank's obligations under this Agreement shall remain unchanged, (ii) the originating Lender Bank shall remain solely responsible for the performance of such obligations, (iii) the Borrowers, the Issuing Lender, the Swing Line Lender Company and the Administrative Agent Agents shall continue to deal solely and directly with the originating Lender Bank in connection with the originating LenderBank's rights and obligations under this Agreement and the other Loan Documents, and (iv) no Lender Bank shall transfer or grant any participating interest under which the Participant has rights to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment, consent or waiver would require unanimous consent of the Lenders Banks as described in the first proviso to Section 12.
110.1. In the case of any such participation, the Participant shall be entitled to the benefit of Sections 4.13.1, 4.3, 4.4, 4.6 3.3 and 12.5 10.5 as though it were also a Lender Bank hereunder, but shall not have any rights under this Agreement, or any of the other Loan Documents, and all amounts payable by the Company hereunder shall be determined as if such Bank had not sold such participation; except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, the each Participant shall be deemed to have the right of set-off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender Bank under this Agreement.
(de) Each Bank agrees to take normal and reasonable precautions and exercise due care to maintain the confidentiality of all information identified as "confidential" or "secret" by the Company and provided to it by the Company, or by an Agent on the Company's behalf, under this Agreement or any other Loan Document, and neither it nor any of its Affiliates shall use any such information other than in connection with or in enforcement of this Agreement and the other Loan Documents; except to the extent such information (i) was or becomes generally available to the public other than as a result of disclosure by the Bank, or (ii) was or becomes available on a non-confidential basis from a source other than the Company, provided that such source is not bound by a confidentiality agreement with the Company known to the Bank; PROVIDED, HOWEVER, that any Bank may disclose such information (A) at the request or pursuant to any requirement of any Governmental Authority to which the Bank is subject or in connection with an examination of such Bank by any such authority; (B) pursuant to subpoena or other court process; (C) when required to do so in accordance with the provisions of any applicable Requirement of Law; (D) to the extent reasonably required in connection with any litigation or proceeding to which any Agent, any Bank or their respective Affiliates may be party; (E) to the extent reasonably required in connection with the exercise of any remedy hereunder or under any other Loan Document; (F) to such Bank's independent auditors and other professional advisors; (G) to any Affiliate of such Bank, or to any Participant or Assignee, actual or potential, provided that such Affiliate, Participant or Assignee agrees to keep such information confidential to the same extent required of the Banks hereunder, and (H) as to any Bank, as expressly permitted under 70 the terms of any other document or agreement regarding confidentiality to which the Company is party or is deemed party with such Bank.
(f) Notwithstanding any other provision in this Agreement, any Lender Bank may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement and any Note held by it in favor of any Federal Reserve Bank in accordance with Regulation A of the FRB or U.S. Treasury Regulation 31 CFR (S)203.14Section 203.14, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law.
(g) Any Bank may transfer and carry all or A portion of its Commitment and the Loans at the time held by it at, to or for the account of any domestic or foreign branch office of such Bank, and such transfer shall not be deemed an assignment or participation pursuant to this Section 10.8; provided, however, that such Bank shall not be entitled to receive any amount payable pursuant to Section 3.3 hereof to the extent that such amount would not have been payable but for the transfer referred to above; provided, further, that such Bank shall have delivered to the Syndication Agent revised information with respect to it as set forth in Section 10.2.
Appears in 1 contract
Assignments, Participations, etc. (a) Any Lender may, with the written consent of Culliganthe Administrative Agent (and, in the case of Revolving Credit Loans, the Administrative Agent, the Issuing Swingline Lender and the Swing Line Lender (Issuing Bank), which consents shall not be unreasonably withheldwithheld or delayed, and with the additional written consent of the Borrower (other than during the existence of an Event of Default), which consent shall not be unreasonably withheld or delayed, at any time assign and or delegate to one or more Eligible Assignees (provided that no written consent of Culligan, the Administrative Agent, the Issuing Lender or the Swing Line Lender shall be required in connection with any assignment and delegation by a Lender to an Eligible Assignee that is an Affiliate of such Lender (so long as such assignment will not result in any increased costs to the Borrowers) or to another Lender) (each an "Assignee") all ), all, or any part ratable part, of the Loans, the Revolving Credit Commitment, the L/C Obligations or Facility B Term Loans of such Lender, as the case may be, and the other rights and obligations of such Lender hereunder, in a minimum Dollar Equivalent amount of U.S. $5,000,000 or, if less, the entire amount of the Loanslesser of $5,000,000 and the remaining outstanding amount thereof or, Commitmentsolely in the case of the assignment from one Lender to another Lender, L/C Obligations and other rights and obligations an Affiliate thereof or an Approved Fund with respect thereto, a minimum amount of such Lender hereunder$1,000,000; provided provided, however, that (i) the Borrowers Borrower and the Administrative Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (xi) written notice of such assignment, together with payment instructions, addresses and related information with respect to the Assignee, shall have been given to Culligan such Borrower and the Administrative Agent by such Lender and the Assignee; (yii) such Lender and the its Assignee shall have delivered to the Borrowers Borrower and the Administrative Agent an Assignment and Acceptance Agreement in the form of Exhibit H G ("Assignment and Acceptance") together with any Note or Notes subject to such assignment); and (ziii) such the assignor Lender or the Assignee shall have has paid to the Administrative Agent a processing fee in the amount of U.S. $3,0003,500 (other than in the event of an assignment to an Approved Fund of an existing Lender); and (ii) concurrently provided, further, that no such consent shall be required per assignments or delegations to any Lender or Affiliate thereof or an Approved Fund with such assignmentrespect thereto. In connection with any assignment by Chase, its Swingline Commitment may be in whole but not in part included as part of the assignor Lender shall assign assignment transaction, and the Assignment and Acceptance may be appropriately modified to the Assignee a proportionate share include an assignment and delegation of its loans, commitment Swingline Commitment and other rights and obligations under the Long-Term Credit Agreementany outstanding Swingline Loans.
(b) From and after the date that the Administrative Agent notifies the assignor Lender that it has received (and, to the extent required, and provided its consent and received the consents of Culligan, the Issuing Lender and the Swing Line Lender with respect to) an executed Assignment and Acceptance and payment of the above-referenced processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it and obligations hereunder have been assumed by it pursuant to such Assignment and Acceptance, shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assignor Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under the Loan Documents. If requested by the applicable Lender, the Borrower shall execute and deliver to the Administrative Agent (for delivery to the Assignee) new Notes evidencing such Assignee's assigned portion of the assignor Lender's Loans and such Commitments and, if the assignor Lender has retained a portion of the Loans and such Commitments, replacement Notes in a principal amount of the Loans and such Commitments retained by the assignor Lender. Each such Note shall be dated the date of the predecessor Note. The assignor Lender shall xxxx the predecessor Note "cancelled" and deliver it to the Borrower.
(c) Immediately upon each Assignee's making its processing fee payment under the Assignment and Acceptance, this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments arising therefrom. The Commitment allocated to each Assignee shall reduce the respective Commitments of the assigning Lender pro tanto.
(d) Any Lender may at any time sell to one or more commercial banks or other Persons not Affiliates of Culligan the Borrower (a "Participant") participating interests in any LoanLoans, the Revolving Credit Commitment and/or the Facility B Term Commitment of such Lender and the other interests of such Lender (the "originating Lender") hereunder and under the other Loan Documents; provided, however, that (iA) the originating Lender's obligations under this Agreement shall remain unchanged, (iiB) the originating Lender shall remain solely responsible for the performance of such obligations, (iiiC) the BorrowersBorrower, the Issuing Lender, the Swing Line Lender Bank and the Administrative Agent shall continue to deal solely and directly with the originating Lender in connection with the originating Lender's rights and obligations under this Agreement and the other Loan Documents, and (ivD) no Lender shall transfer or grant any participating interest under which the Participant has rights to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment, consent or waiver would require unanimous consent of the Lenders as described in the first proviso to Section 12.with
1. In the case of any such participation, the Participant shall be entitled to the benefit of Sections 4.1, 4.3, 4.4, 4.6 4.3 and 12.5 11.5 as though it were also a Lender hereunder, and if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, the each Participant shall be deemed deemed, subject to Section 11.9, to have the right of set-off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement.
(de) Notwithstanding any other provision in this Agreement, any Lender may at any time create a security interest in, or pledge, pledge all or any portion of its rights under and interest in in, this Agreement and any Note held by it in favor (i) of any Federal Reserve Bank in accordance with Regulation A of the FRB or U.S. Treasury Regulation 31 CFR (S)203.14S) 203.14, and such Federal Reserve Bank may enforce such pledge or security interest or pledge in any manner permitted under applicable law or (ii) any Eligible Assignee, and such Eligible Assignee may enforce such security interest or pledge in any manner permitted under applicable law.
(f) The Administrative Agent shall maintain at its address referred to in Section 11.2 a copy of each Assignment and Acceptance delivered to it and a register (the "Register") for the recordation of the names and addresses of the Lenders and the Commitment of, and principal amount of the Loans owing to, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loans and any Notes evidencing such Loans recorded therein for all purposes of this Agreement. Any assignment of any Loan, whether or not evidenced by a Note, shall be effective only upon appropriate entries with respect thereto being made in the Register (and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and Acceptance; thereupon one or more new Notes in the same aggregate principal amount shall be issued to the designated Assignee, and the old Notes shall be returned by the Administrative Agent to the Borrower marked "cancelled". The Register shall be available for inspection by the Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice.
Appears in 1 contract
Assignments, Participations, etc. (a) Any Lender may, with the written consent of Culligan, the Administrative Agent, the Issuing Lender and the Swing Line Lender (which consents shall not be unreasonably withheld), may at any time assign and delegate to one or more Eligible Assignees (provided that no written consent of Culligan, the Administrative Agent, the Issuing Lender or the Swing Line Lender shall be required in connection with any assignment and delegation by a Lender to an Eligible Assignee that is an Affiliate of such Lender (so long as such assignment will not result in any increased costs to the Borrowers) or to another Lender) (each an "Assignee") all all, or any ratable part of all, of the Loans, the Commitment, the L/C Obligations and the other rights and obligations of such Lender hereunder, in a minimum Dollar Equivalent amount of U.S. the lesser of (i) $5,000,000 or, if less, or (ii) the entire full amount of the Loans, Commitment, L/C Obligations and the other rights and obligations of such Lender hereunderLender; provided provided, however, that (i) the Borrowers Borrower and the Administrative Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (xi) written notice of such assignment, together with payment instructions, addresses and related information with respect to the Assignee, shall have been given to Culligan the Borrower and the Administrative Agent by such Lender and the Assignee; (yii) such Lender and the its Assignee shall have delivered to the Borrowers Borrower and the Administrative Agent an Assignment and Acceptance in the form of Exhibit H ("Assignment and Acceptance") together with ), requiring, among other things, that any Note or Notes subject Assignee agree to such assignment; be bound by the Intercreditor Agreement and (ziii) such the assignor Lender or the Assignee shall have has paid to the Administrative Agent a processing fee in the amount of U.S. $3,000; and (ii) concurrently with such assignment, the assignor Lender shall assign to the Assignee a proportionate share of its loans, commitment and other rights and obligations under the Long-Term Credit Agreement3,500.
(b) From and after the date that the Administrative Agent notifies the assignor Lender that it has received (and, to the extent required, provided its consent and received the consents of Culligan, the Issuing Lender and the Swing Line Lender with respect to) an executed Assignment and Acceptance and payment of the above-referenced processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it and obligations hereunder have been assumed by it pursuant to such Assignment and Acceptance, shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assignor Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under the Loan Documents.
(c) Any Lender may at any time sell to one or more commercial banks or other Persons not Affiliates of Culligan (a "Participant") participating interests in any Loan, the Commitment of such Lender and the other interests of such Lender (the "originating Lender") hereunder and under the other Loan Documents; provided, however, that (i) the originating Lender's obligations under this Agreement shall remain unchanged, (ii) the originating Lender shall remain solely responsible for the performance of such obligations, (iii) the Borrowers, the Issuing Lender, the Swing Line Lender and the Administrative Agent shall continue to deal solely and directly with the originating Lender in connection with the originating Lender's rights and obligations under this Agreement and the other Loan Documents, and (iv) no Lender shall transfer or grant any participating interest under which the Participant has rights to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment, consent or waiver would require unanimous consent of the Lenders as described in the first proviso to Section 12.
1. In the case of any such participation, the Participant shall be entitled to the benefit of Sections 4.1, 4.3, 4.4, 4.6 and 12.5 as though it were also a Lender hereunder, and if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, the Participant shall be deemed to have the right of set-off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement.
(d) Notwithstanding any other provision in this Agreement, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement and any Note held by it in favor of any Federal Reserve Bank in accordance with Regulation A of the FRB or U.S. Treasury Regulation 31 CFR (S)203.14, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law.
Appears in 1 contract
Samples: Term Loan Agreement (Apw LTD)
Assignments, Participations, etc. (a1) Any Lender may, with With the prior written consent of Culligan, the Administrative AgentAgent and, the Issuing Lender but only if there has not occurred and the Swing Line Lender (which is continuing an Event of Default or Potential Default, MAC, such consents shall not to be unreasonably withheld)withheld or delayed, any Lender may at any time assign and delegate to one or more Eligible Assignees (provided that no written consent of Culligan, MAC or the Administrative Agent, the Issuing Lender or the Swing Line Lender Agent shall be required in connection with any assignment and delegation by a Lender to an Eligible Assignee that is an Affiliate of such Lender (so long as such assignment will not result in any increased costs to the Borrowers) or to another LenderLender or its Affiliate) (each an "Assignee") all or any part of such Lender's rights and obligations under this Agreement (including all or a portion of its Commitment and the Loans, Loans at the Commitment, the L/C Obligations time owing to it) and the other rights and obligations of Obligations held by such Lender hereunder, in a minimum Dollar Equivalent amount of U.S. $5,000,000 or5 million (or (A) if such Assignee is another Lender or an Affiliate of a Lender, $1 million; and (B) if lesssuch Lender's Commitment is less than $5 million, one hundred percent (100%) thereof); provided, however, that MAC, the entire amount of Borrowers, the Loans, Commitment, L/C Obligations and other rights and obligations of such Issuing Lender hereunder; provided that (i) the Borrowers and the Administrative Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (xi) written notice of such assignment, together with payment instructions, addresses and related information with respect to the Assignee, shall have been given to Culligan the Borrowers, the Issuing Lender and the Administrative Agent by such Lender and the Assignee; (yii) such Lender and the its Assignee shall have delivered to the Borrowers and the Administrative Agent an Assignment and Acceptance in the form of Exhibit H ("Assignment and Acceptance") together with any Note or Notes subject to such assignment; Agreement and (ziii) such Lender or the Assignee shall have has paid to the Administrative Agent a processing fee in the amount of U.S. $3,000; and (ii) concurrently with such assignment, the assignor Lender shall assign to the Assignee a proportionate share of its loans, commitment and other rights and obligations under the Long-Term Credit Agreement3500.
(bA) From and after the date that the Administrative Agent notifies the assignor Lender and the Borrowers that it has received (and, to the extent required, provided its consent and received the consents of Culligan, the Issuing Lender and the Swing Line Lender with respect to) an executed Assignment and Acceptance Agreement and payment of the above-referenced processing fee, : (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned to it and obligations hereunder have been assumed by it pursuant to such Assignment and AcceptanceAcceptance Agreement, shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assignor Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and AcceptanceAcceptance Agreement, relinquish its rights and be released from its obligations under the Loan DocumentsDocuments (but shall be entitled to indemnification as otherwise provided in this Agreement with respect to any events occurring prior to the assignment) and (iii) this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments resulting therefrom.
(c2) Within five Business Days after its receipt of notice by the Administrative Agent that it has received an executed Assignment and Acceptance Agreement and payment of the processing fee (which notice shall also be sent by the Administrative Agent to each Lender), the Borrowers shall, if requested by the Assignee, execute and deliver to the Administrative Agent, a new Note evidencing such Assignee's Applicable Percentage of the Commitments.
(3) Any Lender may at any time sell to one or more commercial banks or other Persons not Affiliates of Culligan the Borrowers (a "Participant") participating interests in all or any Loan, the Commitment portion of such Lender its rights and obligations under this Agreement and the other interests Loan Documents (including all or a portion of such Lender its Commitments and the Loans owing to it) (the "originating Lender") hereunder and under the other Loan Documents); provided, however, that (i) the originating Lender's obligations under this Agreement shall remain unchanged, (ii) the originating Lender shall remain solely responsible for the performance of such obligations, and (iii) the Borrowers, the Issuing Lender, the Swing Line Lender and the Administrative Agent shall continue to deal solely and directly with the originating Lender in connection with the originating Lender's rights and obligations under this Agreement and the other Loan Documents, and (iv) no Lender shall transfer or grant any participating interest under which the Participant has rights to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment, consent or waiver would require unanimous consent of the Lenders as described in the first proviso to Section 12.
1. In the case of any such participation, the Participant shall be entitled to the benefit of Sections 4.12.5, 4.3, 4.4, 4.6 2.6 and 12.5 2.7 (and subject to the burdens of Sections 2.8 and 11.8 above) as though it were also a Lender hereunderthereunder, and if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, the each Participant shall be deemed to have the right of set-off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement, and Section 11.10 of this Agreement shall apply to such Participant as if it were a Lender party hereto.
(d4) Notwithstanding any other provision contained in this AgreementAgreement or any other Loan Document to the contrary, any Lender may at any time create a security interest in, or pledge, assign all or any portion of its rights and obligations under and interest in this Agreement and any Note held by it in favor the other Loan Documents (including all or a portion of its Commitments and the Loans owing to it) to any Federal Reserve Bank in accordance with Lender or the United States Treasury as collateral security pursuant to Regulation A of the FRB or U.S. Treasury Regulation 31 CFR (S)203.14, Board of Governors of the Federal Reserve System and any Operating Circular issued by such Federal Reserve Bank may enforce Lender, provided that any payment in respect of such pledge assigned interests made by the Borrowers to or security interest for the account of the assigning and/or pledging Lender in any manner permitted under applicable lawaccordance with the terms of this Agreement shall satisfy the Borrowers' obligations hereunder in respect to such assigned interests to the extent of such payment. No such assignment shall release the assigning Lender from its obligations hereunder.
Appears in 1 contract
Samples: Credit Agreement (Macerich Co)
Assignments, Participations, etc. Any Lender may at any time assign and delegate to one or more Lender Affiliates all or any portion of the Loans, the Credit Commitments and the other rights and obligations of such Lender hereunder; provided that (ai) Any all such assignments shall be in a minimum amount of $1,000,000 if made to another Lender party hereto or $5,000,000 if made to any other Lender Affiliate; (ii) no Lender shall have Credit Commitments, immediately following an assignment, of an aggregate amount of less than $1,000,000 unless such Lender shall have assigned all of its Loans, Credit Commitments, rights and obligations hereunder, and no Lender Affiliate, other than a Lender party hereto, shall have Credit Commitments immediately following an assignment of an aggregate amount of less than $5,000,000, unless such Lender Affiliate shall have assigned all of its Loans, Credit Commitments, rights and obligation hereunder; provided, further, that Borrowers and the Administrative Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to such Lender Affiliate until (A) written notice of such assignment, together with payment instructions, addresses and related information with respect to such Lender Affiliate, shall have been given to Borrowers and the Administrative Agent by such Lender and such Lender Affiliate; (B) such Lender and such Lender Affiliate shall have delivered to Borrowers and the Administrative Agent an Assignment and Acceptance in the form of Exhibit F ("Assignment and Acceptance") together with any Note or Notes subject to such Assignment and (C) such Lender Affiliate has paid to the Administrative Agent a processing fee in the amount of $3,000. Upon the occurrence and continuance of an Event of Default, any Lender may, with the written consent of Culligan, the Administrative Agent, the Issuing Lender and the Swing Line Lender (which consents consent shall not be unreasonably withheld)withheld or delayed, at any time assign and delegate to one or more Eligible Assignees (provided that no written consent of Culligan, the Administrative Agent, the Issuing Lender or the Swing Line Lender Agent shall be required in connection with any assignment and delegation by a Lender to an Eligible Assignee that is an Affiliate of such its Lender (so long as such assignment will not result in any increased costs to the Borrowers) or to another LenderAffiliate) (each an "Assignee") all or any part portion of the Loans, the Commitment, the L/C Obligations Credit Commitments and the other rights and obligations of such Lender hereunder; provided, in a minimum Dollar Equivalent amount of U.S. $5,000,000 orhowever, if less, the entire amount of the Loans, Commitment, L/C Obligations and other rights and obligations of such Lender hereunder; provided that (i) the Borrowers and the Administrative Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (xA) written notice of such assignment, assignment together with payment instructions, addresses and related information with respect to the Assignee, shall have been given to Culligan Borrowers and the Administrative Agent by such Lender and the Assignee; (yB) such Lender and the its Assignee shall have delivered to the Borrowers and the Administrative Agent an Assignment and Acceptance in the form of Exhibit H ("Assignment and Acceptance") together with any Note or Notes subject to such assignment; Assignment and (zC) such Lender or the Assignee shall have has paid to the Administrative Agent a processing fee in the amount of U.S. $3,000; and (ii) concurrently with such assignment, the assignor Lender shall assign to the Assignee a proportionate share of its loans, commitment and other rights and obligations under the Long-Term Credit Agreement.
(b) . From and after the date that the Administrative Agent notifies the assignor Lender that it has received (and, to the extent required, provided its consent and received the consents of Culligan, the Issuing Lender and the Swing Line Lender with respect to) an executed Assignment and Acceptance and payment of the above-referenced processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder and under the Loan Documents have been assigned to it and obligations hereunder have been assumed by it pursuant to such Assignment and Acceptance, shall have the rights and obligations of a the assignor Lender under the Loan Documents, Documents and (ii) the assignor Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under the Loan Documents.
. Within five Business Days after its receipt of notice by the Administrative Agent that it has received an executed Assignment and Acceptance, which notice shall also be sent by the Administrative Agent to each Lender, and payment of the processing fee, Borrowers shall execute and deliver to the Administrative Agent, new Notes evidencing such Assignee's assigned Loans and Credit Commitment and, if the assignor Lender has retained a portion of its Loans and its Credit Commitment, replacement Notes in the principal amount of the Loans and Credit Commitment retained by the assignor Lender (c) such Notes to be in exchange for, but not in payment of, the Notes held by such Lender). Immediately upon each Assignee's making its processing fee payment under the Assignment and Acceptance, this Agreement, shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Credit Commitments arising therefrom. The Credit Commitment allocated to each Assignee shall reduce such Credit Commitment of the assigning Lender pro tanto. Any Lender may at any time sell to one or more commercial banks lenders or other Persons not Affiliates affiliates of Culligan Borrowers (a "Participant") participating interests in any LoanLoans, the Credit Commitment of such that Lender and the other interests of such that Lender (the "originating Lender") hereunder and under the other Loan Documents; provided, however, that (i) the originating Lender's obligations under this Agreement shall remain unchanged, (ii) the originating Lender shall remain solely responsible for the performance of such obligations, (iii) the Borrowers, the Issuing Lender, the Swing Line Lender Borrowers and the Administrative Agent shall continue to deal solely and directly with the originating Lender in connection with the originating Lender's rights and obligations under this Agreement and the other Loan Documents, and (iv) no Lender shall transfer or grant any participating interest under which the Participant has shall have rights to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment, consent or waiver would require unanimous consent of the Lenders as described in the first proviso to Section 12.
1. In the case of any such participation, the Participant shall be entitled to not have any rights under this Agreement, or any of the benefit of Sections 4.1, 4.3, 4.4, 4.6 and 12.5 as though it were also a Lender hereunderother Loan Documents, and all amounts payable by Borrowers hereunder shall be determined as if such Lender had not sold such participation; except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, the each Participant shall be deemed to have the right of set-off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement.
. Each Lender agrees to take normal and reasonable precautions and exercise due care to maintain the confidentiality of all information identified as "confidential" by Borrowers and provided to it by Borrowers or any Subsidiary of Borrowers, or by the Administrative Agent on such Company's or such Subsidiary's behalf, in connection with this Agreement or any other Loan Document, and neither it nor any of its Affiliates shall use any such information for any purpose or in any manner other than pursuant to the terms contemplated by this Agreement; except to the extent such information (di) was or becomes generally available to the public other than as a result of a disclosure by any Lender or (ii) was or becomes available on a non-confidential basis from a source other than Borrowers, provided that such source is not bound by a confidentiality agreement with Borrowers known to such Lender; provided further, however, that the Lender may disclose such information (A) at the request or pursuant to any requirement of any Governmental Authority to which such Lender is subject or in connection with an examination of the Lender by any such authority; (B) pursuant to subpoena or other court process; (C) when required to do so in accordance with the provisions of any applicable Requirement of Law; and (D) to such Lender's independent auditors and other professional advisors. Notwithstanding the foregoing, Borrowers authorize each Lender to disclose to any Participant or Assignee (each, a "Transferee") and to any prospective Transferee, such financial and other information in such Lender's possession concerning Borrowers or their Subsidiaries which has been delivered to Administrative Agent or the Lenders pursuant to this Agreement or which has been delivered to the Administrative Agent or the Lenders by Borrowers in connection with the Lenders' credit evaluation of Borrowers prior to entering into this Agreement; provided that, unless otherwise agreed by Borrowers, such Transferee agrees in writing to such Lender to keep such information confidential to the same extent required of the Lenders hereunder. Notwithstanding any other provision contained in this AgreementAgreement or any other Loan Document to the contrary, any Lender may at any time create a security interest in, or pledge, assign all or any portion of its rights under and interest in this Agreement and any Note the Loans or Notes held by it in favor of to any Federal Reserve Bank in accordance with Lender or the United States Treasury as collateral security pursuant to Regulation A of the FRB or U.S. Treasury Regulation 31 CFR (S)203.14, Board of Governors of the Federal Reserve System and any Operating Circular issued by such Federal Reserve Bank Lender, provided that any payment in respect of such assigned Loans or Notes made by Borrowers to or for the account of the assigning and/or pledging Lender in accordance with the terms of this Agreement shall satisfy Borrowers' obligations hereunder in respect to such assigned Loans or Notes to the extent of such payment. No such assignment shall release the assigning Lender from its obligations hereunder. . In addition to any rights and remedies of the Lenders provided by law, if an Event of Default exists, each Lender is, subject to Section 8.2, authorized at any time and from time to time, without prior notice to Borrowers, any such notice being waived by Borrowers to the fullest extent permitted by law, to set off and apply any and all deposits (general or special, time or demand, provisional or final) at any time held by, and other indebtedness at any time owing to, such Lender to or for the credit or the account of Borrowers against any and all Obligations owing to such Lender, now or hereafter existing, irrespective of whether or not the Administrative Agent or such Lender shall have made demand under this Agreement or any Loan Document and although such Obligations may enforce be contingent or unmatured. Each Lender agrees promptly to notify Borrowers and the Administrative Agent after any such pledge or security interest set-off and application made by such Lender; provided, however, that the failure to give such notice shall not affect the validity of such set-off and application. The rights of each Lender under this Section 10.9 are in any manner permitted under applicable lawaddition to the other rights and remedies (including other rights of set-off) which the Lender may have.
Appears in 1 contract
Samples: Term Credit Agreement (United Artists Theatre Circuit Inc /Md/)
Assignments, Participations, etc. (a1) Any Lender maymay at any time, with the written consent of Culliganthe Agent and, but only so long as there does not exist an Event of Default, the Administrative Agent, the Issuing Lender and the Swing Line Lender Company (which consents consent shall not be unreasonably withheldwithheld by the Company), at any time assign and delegate to one or more Eligible Assignees (provided that no written consent of Culligan, the Administrative Agent, the Issuing Lender or the Swing Line Lender shall be required in connection with any assignment and delegation by a Lender to an Eligible Assignee that is an Affiliate of such Lender (so long as such assignment will not result in any increased costs to the Borrowers) or to another Lender) financial institutions (each an "“Assignee"”) all all, or any ratable part of all, of the Loans, the Commitment, the L/C Obligations Loans and the other rights and obligations of such Lender hereunder, hereunder in a minimum Dollar Equivalent amount of U.S. $5,000,000 or5,000.000.00; provided, if lesshowever, that the entire amount of the Loans, Commitment, L/C Obligations and other rights and obligations of such Lender hereunder; provided that (i) the Borrowers Company and the Administrative Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (xi) written notice of such assignment, together with payment instructions, addresses and related information with respect to the Assignee, shall have been given to Culligan the Company and the Administrative Agent by such Lender and the Assignee; (yii) such Lender and the its Assignee shall have delivered to the Borrowers Company and the Administrative Agent an Assignment and Acceptance in the form of Exhibit H ("Assignment and Acceptance") together with any Note or Notes subject to such assignmentAgreement; and (ziii) such Lender or the Assignee shall have has paid to the Administrative Agent a processing fee in the amount of U.S. $3,000; and (ii) concurrently with such assignment, the assignor Lender shall assign to the Assignee a proportionate share of its loans, commitment and other rights and obligations under the Long-Term Credit Agreement.
(b) 3,500.00. From and after the date that the Administrative Agent notifies the assignor Lender that it has received (and, to the extent required, provided its consent and received the consents of Culligan, the Issuing Lender and the Swing Line Lender with respect to) an executed Assignment and Acceptance and payment of the above-referenced processing feeAgreement, (iy) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned to it and obligations hereunder have been assumed by it pursuant to such Assignment and AcceptanceAcceptance Agreement, shall have the rights and obligations of a Lender under the Loan Documents, and (iiz) the assignor Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and AcceptanceAcceptance Agreement, relinquish its rights and be released from its obligations under the Loan Documents. Upon the effective date of such assignment, this Agreement and the other Loan Documents shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Percentage Share arising therefrom.
(c2) Any Lender may at any time sell to one or more commercial banks financial institutions or other Persons not Affiliates of Culligan (each a "“Participant"”) participating interests in any LoanLoans, the Commitment funding commitment of such that Lender and the other interests of such that Lender (the "“originating Lender"”) hereunder and under the other Loan Documents; provided, however, that (i) the originating Lender's ’s obligations under this Agreement shall remain unchanged, (ii) the originating Lender shall remain solely responsible for the performance of such obligations, (iii) the Borrowers, the Issuing Lender, the Swing Line Lender Company and the Administrative Agent shall continue to deal solely and directly with the originating Lender in connection with the originating Lender's ’s rights and obligations under this Agreement and the other Loan Documents, and (iv) no following such sale that Lender shall transfer continue to hold for its own account a Percentage Share of the Aggregate Credit Limit of not less than $5,000,000.00 and (v) the terms of any documentation governing such participation shall not provide for such Participant to have any voting rights on any amendments to the Credit Agreement or grant other Loan Documents other than any participating interest under such amendment which the Participant has rights purports to approve any amendment to(A) forgive principal of, or interest on any consent Loan, (B) postpone any date fixed for the payment of principal of or waiver with respect tointerest on, any Loan, (C) decrease the rates at which interest or fees are payable under the Credit Agreement or (D) release all or substantially all of the Collateral.
(3) Notwithstanding any other provision contained in this Agreement or any other Loan Document, except Document to the extent such amendment, consent or waiver would require unanimous consent of the Lenders as described in the first proviso to Section 12.
1. In the case of any such participation, the Participant shall be entitled to the benefit of Sections 4.1, 4.3, 4.4, 4.6 and 12.5 as though it were also a Lender hereunder, and if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, the Participant shall be deemed to have the right of set-off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement.
(d) Notwithstanding any other provision in this Agreementcontrary, any Lender may at any time create a security interest in, or pledge, assign all or any portion of its rights under and interest in this Agreement and any Note the Loans held by it in favor of to any Federal Reserve Bank in accordance with Lender or the United States Treasury as collateral security pursuant to Regulation A of the FRB or U.S. Treasury Regulation 31 CFR (S)203.14, Board of Governors of the Federal Reserve System and any Operating Circular issued by such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable lawLender.
Appears in 1 contract
Samples: Credit Agreement (Osi Systems Inc)
Assignments, Participations, etc. (a) Any Each Lender may, with the written consent may assign any of Culligan, the Administrative Agent, the Issuing Lender and the Swing Line Lender (which consents shall not be unreasonably withheld), at any time assign and delegate to one or more Eligible Assignees (provided that no written consent of Culligan, the Administrative Agent, the Issuing Lender or the Swing Line Lender shall be required in connection with any assignment and delegation by a Lender to an Eligible Assignee that is an Affiliate of such Lender (so long as such assignment will not result in any increased costs to the Borrowers) or to another Lender) (each an "Assignee") all or any part of the its Loans, the Commitment, the its L/C Obligations and the other rights and obligations Obligations hereunder (but only with the consent of the Administrative Agent, and in the case of an L/C Obligation, the applicable Letter of Credit Issuer, with respect to Swing Line Loans, the Swing Line Lender, and with respect to Daylight Overdraft Loans, the Daylight Overdraft Bank to one or more commercial banks or other Persons not Affiliates of the Borrower (each, an “Assignee”) which is an Eligible Assignee; provided, however, that
(i) except to the extent the Administrative Agent (and the applicable Letter of Credit Issuer, in the case of a Letter of Credit) shall otherwise consent, any such assignment shall be (A) if a partial assignment, in an amount at least equal to $5,000,000 or (B) if an assignment of all of a Lender's Obligations, a lesser amount;
(ii) each such assignment by a Lender of its Loans, or L/C Obligations shall be made in such manner so that the same portion of its Loans, and L/C Obligations is assigned to the respective Assignee; and
(iii) upon each such assignment, the assigning Lender and Assignee shall deliver to the Borrower, the Administrative Agent and the Letter of Credit Issuers a Notice of Assignment in the form of Exhibit K hereto, and the assigning Lender shall pay a $3,500 recordation fee to the Administrative Agent. Upon execution and delivery by the assigning Lender and the Assignee to the Borrower, the Administrative Agent and the Letter of Credit Issuers of such Notice of Assignment, and upon consent thereto by the Administrative Agent and the applicable Letter of Credit Issuer to the extent required above, the Assignee shall have, to the extent of such assignment (unless otherwise consented to by the Administrative Agent), the obligations, rights and benefits of a Lender hereunder, in a minimum Dollar Equivalent amount of U.S. $5,000,000 orhereunder holding the Loans and, if less, the entire amount of the Loans, Commitmentapplicable, L/C Obligations and other rights and obligations of such Lender hereunder; provided that (ior portions thereof) the Borrowers and the Administrative Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (x) written notice of such assignment, together with payment instructions, addresses and related information with respect to the Assignee, shall have been given to Culligan and the Administrative Agent by such Lender and the Assignee; (y) such Lender and the Assignee shall have delivered to the Borrowers and the Administrative Agent an Assignment and Acceptance in the form of Exhibit H ("Assignment and Acceptance") together with any Note or Notes subject to such assignment; and (z) such Lender or the Assignee shall have paid to the Administrative Agent a processing fee in the amount of U.S. $3,000; and (ii) concurrently with such assignment, the assignor Lender shall assign to the Assignee a proportionate share of its loans, commitment and other rights and obligations under the Long-Term Credit Agreement.
(b) From and after the date that the Administrative Agent notifies the assignor Lender that it has received (and, to the extent required, provided its consent and received the consents of Culligan, the Issuing Lender and the Swing Line Lender with respect to) an executed Assignment and Acceptance and payment of the above-referenced processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights hereunder have been assigned to it and obligations hereunder have been assumed specified in such Notice of Assignment (in addition to the Loans and L/C Obligations, if any, theretofore held by it pursuant to such Assignment assignee) and Acceptance, shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assignor assigning Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to of such Assignment and Acceptanceassignment, relinquish its rights and be released from its obligations under the Loan DocumentsLoans and L/C Obligations (or portion(s) thereof) so assigned.
(cb) Any A Lender may (but only with the consent of the Administrative Agent and, in the case of an L/C Obligation, the applicable Letter of Credit Issuer, such consent not to be unreasonably withheld or delayed) at any time sell to one or more commercial banks or other Persons not Affiliates of Culligan the Borrower (a "“Participant"”) participating interests in any LoanLoans, the Commitment of such Lender L/C Obligations and the any other interests of such Lender (the "originating Lender") hereunder and under the other Loan Documents; Documents provided, however, that (i) the originating such Lender's obligations under this Agreement shall remain unchanged, (ii) the originating such Lender shall remain solely responsible for the performance of such obligations, (iii) the Borrowers, the Issuing Lender, the Swing Line Lender and the Administrative Agent Borrower shall continue to deal solely and directly with the originating such Lender in connection with the originating such Lender's rights and obligations under this Agreement and the other Loan Documents, and (iv) no such Lender shall not transfer or grant any participating interest under which the Participant has rights to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment, consent or waiver would require unanimous consent relates to the principal amount of any Loans, the Face Amount of any Letters of Credit, the rate of interest to be charged with respect to any Loans or L/C Obligations, any fees payable to a Lender under this Agreement or the extension of the Lenders as described in the first proviso to Section 12.
1Expiration Date. In the case of any such participation, the Participant shall be entitled to not have any rights under this Agreement, or any of the benefit of Sections 4.1, 4.3, 4.4, 4.6 and 12.5 as though it were also a Lender hereunderother Loan Documents, and if all amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon by the occurrence of an Event of Default, the Participant Borrower hereunder shall be deemed to have the right of set-off in respect of its participating interest in amounts owing under this Agreement to the same extent determined as if the amount of its participating interest were owing directly to it as a Lender under this Agreementhad not sold such participation.
(dc) Notwithstanding any other provision in this Agreement, any Lender may without the consent of the Administrative Agent, any Letter of Credit Issuer, or the Borrower, at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement and any the Note held by it in favor of any Federal Reserve Bank in accordance with Regulation A of the FRB or U.S. Treasury Regulation 31 CFR (S)203.14203.14, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law.
Appears in 1 contract
Samples: Uncommitted Revolving Credit Agreement (Tesoro Corp /New/)
Assignments, Participations, etc. (a) Any Lender may, with the written consent of Culliganthe Company (at all times other than during the existence of an Event of Default), the Administrative Agent, Agent and the Issuing Lender and the Swing Line Lender (Lender, which consents shall not be unreasonably withheld)withheld or delayed, at any time assign and delegate to one or more Eligible Assignees (provided PROVIDED that no written consent of Culliganthe Company, the Administrative Agent, Agent or the Issuing Lender or the Swing Line Lender shall be required in connection with any assignment and delegation by a Lender to an a Person described in CLAUSE (iii) of the definition of Eligible Assignee that is an Affiliate of such Lender (so long as such assignment will not result in any increased costs to the Borrowers) or to another LenderAssignee) (each each, an "AssigneeASSIGNEE") all all, or any a ratable part of all, of the Loans, the CommitmentCommitments, the L/C Obligations and the other rights and obligations of such Lender hereunder, in a minimum Dollar Equivalent amount of U.S. $5,000,000 (or, if less, the entire amount all of the Loans, Commitment, L/C Obligations and other such Lender's remaining rights and obligations of such Lender hereunder); provided PROVIDED that (iA) the Borrowers and the Administrative Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (x) written notice of such assignmentCompany, together with payment instructions, addresses and related information with respect to the Assignee, shall have been given to Culligan and the Administrative Agent by such Lender and the Assignee; (y) such Lender and the Assignee shall have delivered to the Borrowers and the Administrative Agent an Assignment and Acceptance in the form of Exhibit H ("Assignment and Acceptance") together with any Note or Notes subject to such assignment; and (z) such Lender or the Assignee shall have paid to the Administrative Agent a processing fee in the amount of U.S. $3,000; and (ii) concurrently with such assignment, the assignor Lender shall assign to the Assignee a proportionate share of its loans, commitment and other rights and obligations under the Long-Term Credit Agreement.the
(b) From and after the date that the Administrative Agent notifies the assignor Lender that it has received (and, to the extent required, provided its consent consent, and received the consents of Culligan, the Issuing Lender and (if applicable) the Swing Line Lender Company, with respect to) to an executed Assignment and Acceptance and payment of the above-referenced processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it and obligations hereunder have been assumed by it pursuant to such Assignment and Acceptance, shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assignor Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under the Loan Documents.
(c) Any Lender may at any time sell to one or more commercial banks or other Persons not Affiliates of Culligan the Company (a "ParticipantPARTICIPANT") participating interests in any Loan, the Commitment Commitments of such Lender and the other interests of such Lender (the "originating LenderORIGINATING LENDER") hereunder and under the other Loan Documents; providedPROVIDED, howeverHOWEVER, that (i) the originating Lender's obligations under this Agreement shall remain unchanged, (ii) the originating Lender shall remain solely responsible for the performance of such obligations, (iii) the BorrowersCompany, the Issuing Lender, the Swing Line Lender and the Administrative Agent shall continue to deal solely and directly with the originating Lender in connection with the originating Lender's rights and obligations under this Agreement and the other Loan Documents, Documents and (iv) no Lender shall transfer or grant any participating interest under which the Participant has rights to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment, consent or waiver would require unanimous consent of the Lenders or the consent of a particular Lender, in each case as described in the first proviso PROVISO to Section 12SECTION 11.
1. In the case of any such participation, the Participant shall be entitled to the benefit of Sections SECTIONS 4.1, 4.3, 4.4, 4.6 4.3 and 12.5 11.5 as though it were also a Lender hereunderhereunder (PROVIDED, with respect to SECTIONS 4.1 and 4.3, the Company shall not be 87 required to pay any amount which it would not have been required to pay if no participating interest had been sold), and if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, the Participant shall be deemed to have the right of set-off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement. Each Lender may furnish any information concerning the Company and its Subsidiaries in the possession of such Lender from time to time to participants and prospective participants and may furnish information in response to credit inquiries consistent with general banking practice. Each Lender which sells a participation will maintain a book entry record of ownership identifying the Participant(s) and the amount of such participation(s) owned by such Participant(s). Such book entry record of ownership shall be maintained by the Lender as agent for the Company and the Administrative Agent. This provision is intended to comply with the registration requirements in Treasury Regulation Section 5f.103-1 so that the Loans and Notes are considered to be in "registered form" pursuant to such regulation.
(d) Notwithstanding any other provision in of this Agreement, any Lender may at any time create a security interest in, or pledge, pledge all or any portion of of, its rights under and interest in this Agreement and any Note held by it in favor of any Federal Reserve Bank in accordance with Regulation A of the FRB or U.S. Treasury Regulation 31 CFR (S)203.14Section 203.14, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law.
Appears in 1 contract
Samples: Credit Agreement (Compass International Services Corp)
Assignments, Participations, etc. (a) Any Lender mayThe provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns permitted hereby, with except that Borrower may not assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of Culligan, the Administrative Agent, the Issuing each Lender and the Swing Line no Lender may assign or otherwise transfer any of its rights or obligations hereunder except (which consents shall not be unreasonably withheld), at any time assign and delegate to one or more Eligible Assignees (provided that no written consent of Culligan, the Administrative Agent, the Issuing Lender or the Swing Line Lender shall be required in connection with any assignment and delegation by a Lender i) to an Eligible Assignee that is an Affiliate of such Lender (so long as such assignment will not result in any increased costs to the Borrowers) or to another Lender) (each an "Assignee") all or any part of the Loans, the Commitment, the L/C Obligations and the other rights and obligations of such Lender hereunder, in a minimum Dollar Equivalent amount of U.S. $5,000,000 or, if less, the entire amount of the Loans, Commitment, L/C Obligations and other rights and obligations of such Lender hereunder; provided that (i) the Borrowers and the Administrative Agent may continue to deal solely and directly with such Lender in connection accordance with the interest so assigned to an Assignee until (x) written notice provisions of such assignmentSection 11.6(b), together with payment instructions, addresses and related information with respect to the Assignee, shall have been given to Culligan and the Administrative Agent by such Lender and the Assignee; (y) such Lender and the Assignee shall have delivered to the Borrowers and the Administrative Agent an Assignment and Acceptance in the form of Exhibit H ("Assignment and Acceptance") together with any Note or Notes subject to such assignment; and (z) such Lender or the Assignee shall have paid to the Administrative Agent a processing fee in the amount of U.S. $3,000; and (ii) concurrently by way of participation in accordance with such assignmentthe provisions of Section 11.6(d), or (iii) by way of pledge or assignment of a security interest subject to the restrictions of Section 11.6(f) (and any other attempted assignment or transfer by any party hereto shall be null and void). Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby, Participants to the extent provided in Section 11.6(d), and, to the extent expressly contemplated hereby, the assignor Lender shall assign to the Assignee a proportionate share Indemnitees) any legal or equitable right, remedy, or claim under or by reason of its loans, commitment and other rights and obligations under the Long-Term Credit this Agreement.
(b) From Any Lender may at any time assign to one (1) or more Eligible Assignees all or a portion of its rights and obligations under this Agreement (including all or a portion of its Term Loans at the time owing to it); provided that: (i) except in the case of an assignment of the entire remaining amount of the assigning Lender’s Term Loans at the time owing to it or in the case of an assignment to a Lender or an Affiliate of a Lender with respect to a Lender, the aggregate amount of the Term Loans subject to each such assignment, determined as of the date the Assignment and Assumption with respect to such assignment is delivered to Administrative Agent or, if “Trade Date” is specified in the Assignment and Assumption, as of the Trade Date, shall be in a minimum amount of $1,000,000, and integral multiples thereof, unless each of Administrative Agent and, so long as no Event of Default has occurred and is continuing, Borrower otherwise consents (each such consent not to be unreasonably withheld or delayed); (ii) each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender’s rights and obligations under this Agreement with respect to the Term Loans assigned; (iii) any assignment of Term Loans must be approved by Administrative Agent unless the Person that is the proposed assignee is itself a Lender, or a Lender Affiliate, each such consent not be to unreasonably withheld or delayed; (iv) after giving effect to such assignment, unless the assigning Lender is assigning all of its rights and Term Loans hereunder, the assigning Lender shall retain Term Loans with a Principal Debt of at least $1,000,000 (or such lesser amount agreed to by Borrower and Administrative Agent); provided that, for purposes of this clause (iv) only, “Lender” shall include any group of Lenders that are administered or managed by (x) a Lender, (y) an Affiliate of a Lender or (z) any Person (or Affiliate thereof) that administers or manages a Lender; and (v) the parties to each assignment shall execute and deliver to Administrative Agent an Assignment and Assumption together with a processing and recordation fee in the amount, if any, required as set forth in Schedule 11.6. Subject to acceptance and recording thereof by Administrative Agent pursuant to Section 11.6(c), from and after the effective date that the Administrative Agent notifies the assignor Lender that it has received (and, to the extent required, provided its consent specified in each Assignment and received the consents of CulliganAssumption, the Issuing Lender and the Swing Line Lender with respect to) an executed Assignment and Acceptance and payment of the above-referenced processing fee, (i) the Eligible Assignee thereunder shall be a party hereto to this Agreement and, to the extent that rights hereunder have been of the interest assigned to it and obligations hereunder have been assumed by it pursuant to such Assignment and AcceptanceAssumption, shall have the rights and obligations of a Lender under the Loan Documentsthis Agreement, and (ii) the assignor assigning Lender thereunder shall, to the extent that rights and obligations hereunder and under of the other Loan Documents have been interest assigned by it pursuant to such Assignment and AcceptanceAssumption, relinquish its rights and be released from its obligations under the Loan Documents.
(c) Any Lender may at any time sell to one or more commercial banks or other Persons not Affiliates of Culligan (a "Participant") participating interests in any Loan, the Commitment of such Lender and the other interests of such Lender (the "originating Lender") hereunder and under the other Loan Documents; provided, however, that (i) the originating Lender's obligations under this Agreement shall remain unchanged(and, (ii) in the originating Lender shall remain solely responsible for case of an Assignment and Assumption covering all of the performance of such obligations, (iii) the Borrowers, the Issuing assigning Lender, the Swing Line Lender and the Administrative Agent shall continue to deal solely and directly with the originating Lender in connection with the originating Lender's ’s rights and obligations under this Agreement and the other Loan DocumentsAgreement, and (iv) no such Lender shall transfer or grant any participating interest under which the Participant has rights cease to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except be a party hereto but shall continue to the extent such amendment, consent or waiver would require unanimous consent of the Lenders as described in the first proviso to Section 12.
1. In the case of any such participation, the Participant shall be entitled to the benefit benefits of Sections 4.1, 4.3, 4.4, 4.6 4.6, 4.7, 11.2, and 12.5 as though it were also 11.12 with respect to facts and circumstances occurring prior to the effective date of such assignment). Upon request, Borrower (at its expense) shall execute and deliver Note(s) to the assignee Lender. Any assignment or transfer by a Lender hereunder, and if amounts outstanding of rights or obligations under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, the Participant that does not comply with this Section 11.6(b) shall be deemed to have the right treated for purposes of set-off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a sale by such Lender under this Agreement.
(d) Notwithstanding any other provision of a participation in this Agreement, any Lender may at any time create a security interest in, or pledge, all or any portion of its such rights under and interest in this Agreement and any Note held by it in favor of any Federal Reserve Bank obligations in accordance with Regulation A of the FRB or U.S. Treasury Regulation 31 CFR (S)203.14, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable lawSection 11.6(d).
Appears in 1 contract
Samples: Term Loan B Credit Agreement (Standard Pacific Corp /De/)
Assignments, Participations, etc. (a) Any Lender mayFrom time to time following the Effective Date, with the written consent of Culligan, the Administrative Agent, the Issuing Lender and the Swing Line Lender (which consents shall not be unreasonably withheld), at any time each Bank may assign and delegate to one or more Eligible Assignees (provided that no written consent of Culligan, the Administrative Agent, the Issuing Lender or the Swing Line Lender shall be required in connection with any assignment and delegation by a Lender to an Eligible Assignee that is an Affiliate of such Lender (so long as such assignment will not result in any increased costs to the Borrowers) or to another Lender) (each an "Assignee") all or any part portion of the its Commitment and outstanding Loans, the Commitment, the L/C Obligations and the other rights and obligations of such Lender hereunder, in a minimum Dollar Equivalent amount of U.S. $5,000,000 or, if less, the entire amount of the Loans, Commitment, L/C Obligations and other rights and obligations of such Lender hereunder; provided that (i) such assignment, if not to a Bank or an -------- Affiliate of the Borrowers assigning Bank, shall be consented to by the Company at all times other than during the existence of a Default or Event of Default and by the Administrative Agent may continue to deal solely (which approval of the Company shall not be unreasonably withheld or delayed), (ii) a copy of a duly signed and directly with such Lender in connection with the interest so assigned to an Assignee until (x) written notice of such assignment, together with payment instructions, addresses and related information with respect to the Assignee, shall have been given to Culligan and the Administrative Agent by such Lender and the Assignee; (y) such Lender and the Assignee shall have delivered to the Borrowers and the Administrative Agent an completed Assignment and Acceptance in the form of Exhibit H ("Assignment and Acceptance") together with --------- ------------------------- shall be delivered to the Administrative Agent and the Company, (iii) except in the case of an assignment (A) to an Affiliate of the assigning Bank or to another Bank or (B) of the entire remaining Commitment of the assigning Bank, the portion of the Commitment assigned shall not be less than $10,000,000, (iv) the assigning Bank shall have delivered any Note or Notes subject to such assignment; and (z) such Lender or the Assignee shall have paid assignment to the Administrative Agent a processing fee Agent, and (v) the effective date of any such assignment shall be as specified in the amount Assignment and Acceptance, but not earlier than the date which is five Business Days after the date the Administrative Agent has received the Assignment and Acceptance. Upon satisfaction of U.S. $3,000; the conditions set forth in the prior sentence, any forms required by Section 3.01(f) and payment of the requisite fee described below, --------------- the assignee named therein shall be a Bank for all purposes of this Agreement effective as of the specified effective date to the extent of the Assigned Interest (ii) concurrently with as defined in such Assignment and Acceptance), and the assigning Bank shall be released from any further obligations under this Agreement to the extent of such Assigned Interest. Until satisfaction of the conditions set forth herein to any assignment, the assignor Lender Company and Administrative Agent may continue to deal solely and directly with the assigning Bank in connection the Assigned Interest. Upon request following satisfaction of the conditions set forth herein to any assignment, the Company shall assign execute and deliver new or replacement Notes to the Assignee a proportionate share of its loans, commitment assigning Bank and other rights and obligations under the Longassignee Bank to evidence Loans made by them. The Administrative Agent's consent to any assignment shall not be deemed to constitute any representation or warranty by any Administrative Agent-Term Credit AgreementRelated Person as to any matter.
(b) From and after the date that the Administrative Agent notifies the assignor Lender that it has received (and, to the extent required, provided its consent and received the consents After receipt of Culligan, the Issuing Lender and the Swing Line Lender with respect to) an executed Assignment and Acceptance and payment of the above-referenced processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights hereunder have been assigned to it and obligations hereunder have been assumed by it pursuant to such completed Assignment and Acceptance, shall have and receipt of an assignment fee of $3,500 from such Eligible Assignee or such assigning Bank (including in the rights and obligations case of a Lender under assignments to Affiliates of assigning Banks), the Loan Documents, and (ii) the assignor Lender Administrative Agent shall, promptly following the effective date thereof, provide to the extent that rights Borrower and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under the Loan Documents.Banks a revised Schedule 10.06 giving effect thereto. --------------
(c) Any Lender Upon advance written notice to the Company, any Bank may at any time sell to one or more commercial banks or other Persons not Affiliates of Culligan the Company (a "Participant") participating interests in any LoanLoans, the Commitment ----------- of such Lender that Bank and the other interests of such Lender that Bank (the "originating LenderBank") hereunder and under the other Loan Documents; provided, however, that (i) the -------- ------- originating LenderBank's obligations under this Agreement shall remain unchanged, (ii) the originating Lender shall remain solely responsible for the performance of such obligations, (iii) the Borrowers, the Issuing Lender, the Swing Line Lender and the Administrative Agent shall continue to deal solely and directly with the originating Lender in connection with the originating Lender's rights and obligations under this Agreement and the other Loan Documents, and (iv) no Lender shall transfer or grant any participating interest under which the Participant has rights to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment, consent or waiver would require unanimous consent of the Lenders as described in the first proviso to Section 12.
1. In the case of any such participation, the Participant shall be entitled to the benefit of Sections 4.1, 4.3, 4.4, 4.6 and 12.5 as though it were also a Lender hereunder, and if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, the Participant shall be deemed to have the right of set-off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement.
(d) Notwithstanding any other provision in this Agreement, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement and any Note held by it in favor of any Federal Reserve Bank in accordance with Regulation A of the FRB or U.S. Treasury Regulation 31 CFR (S)203.14, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law.remain
Appears in 1 contract
Samples: Credit Agreement (Mattel Inc /De/)
Assignments, Participations, etc. (a) Subject to Sections 12.08(b) and 12.08(e):
(i) Any Lender may, may with the written prior consent of Culliganthe Company, the Administrative Agent, and the Issuing Lender and the Swing Line Lender Bank (which consents will not be unreasonably withheld and which consent of the Company shall not be unreasonably withheld), required if a Default or Event of Default exists) at any time assign and delegate to one or more Eligible Assignees all or any fraction of its Commitment and outstanding Committed Loans in a minimum amount of $25,000,000 and in multiples of $1,000,000 in excess thereof or, if its Commitment is less than $25,000,000, in the amount of its Commitment.
(provided ii) Any Lender may without the prior consent of the Company assign to another Lender all or any fraction of its Commitment and outstanding Committed Loans in a minimum amount of $5,000,000 and in multiples of $1,000,000 in excess thereof or, if the Commitment is less than $5,000,000, in the amount of its Commitment.
(iii) Any Lender may at any time assign all or any portion of its rights under this Agreement and any note issued pursuant to Section 2.05 to a Federal Reserve Bank; provided, however, that no such assignment shall release any Lender from its obligations hereunder.
(iv) Any Lender, if so requested by the Company under Section 5.09, shall assign to another Eligible Assignee its entire Commitment and all outstanding Committed Loans.
(v) Except as provided in Section 12.08(a)(iii), no Lender may assign any Bid Loans made by it hereunder except to another Lender or to any other Person to which it is also assigning all or a fraction of its Commitment and outstanding Committed Loans pursuant to Section 12.08(a)(i).
(b) No assignment shall become effective, and the Company and the Agent shall be entitled to continue to deal solely and directly with each Lender in connection with the interests so assigned by such Lender to an Assignee, until (i) such Lender and such Assignee shall have executed an Assignment and Assumption Agreement substantially in the form of Exhibit 12.08(b) and written consent notice of Culligansuch assignment, payment instructions, addresses, and related information with respect to such Assignee shall have been given to the Administrative AgentCompany and the Agent by such Lender and such Assignee, in substantially the Issuing form of Attachment A to Exhibit 12.08 (a "Notice of Assignment"); (ii) a processing fee in the amount of $3,500 shall have been paid to the Agent by the assignor Lender or the Swing Line Assignee; and (iii) either (A) five Business Days shall have elapsed after receipt by the Agent of the items referred to in clauses (i) and (ii) or (B) if earlier, the Agent has notified the assignor Lender and the Assignee of its receipt of the items mentioned in clauses (i) and (ii) and that it has acknowledged the assignment by countersigning the Notice of Assignment.
(c) From and after the effective date of any assignment hereunder, (i) the Assignee thereunder shall be required in connection with any assignment deemed automatically to have become a party hereto and, to the extent that rights -64 and delegation obligations hereunder have been assigned to such Assignee by the assignor Lender, shall have the rights and obligations of a Lender hereunder and under each other Loan Document, and (ii) the assignor Lender, to an Eligible Assignee the extent that is an Affiliate rights and obligations hereunder have been assigned by it to the Assignee, shall be released from its future obligations hereunder and under each other Loan Document.
(d) Subject to Section 12.08(e), any Lender may at any time sell to one or more financial institutions or other Persons (each of such Lender (so long as such assignment will not result Persons being herein called a "Participant") participating interests in any increased costs to the Borrowers) or to another Lender) (each an "Assignee") all or any part of the Loans, the Commitment, the L/C Obligations and the its Commitment or other rights and obligations of such Lender hereunder, in a minimum Dollar Equivalent amount of U.S. $5,000,000 or, if less, the entire amount of the Loans, Commitment, L/C Obligations and other rights and obligations interests of such Lender hereunder; provided that provided, however, that
(i) no participation contemplated in this Section 12.08(d) shall relieve such Lender from its Commitment or its other obligations hereunder or under any other Loan Document;
(ii) such Lender shall remain solely responsible for the Borrowers performance of its Commitment and such other obligations;
(iii) the Company, the Agent, and the Administrative Agent may Issuing Bank shall continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (x) written notice of such assignment, together with payment instructions, addresses and related information with respect to the Assignee, shall have been given to Culligan and the Administrative Agent by such Lender and the Assignee; (y) such Lender and the Assignee shall have delivered to the Borrowers and the Administrative Agent an Assignment and Acceptance in the form of Exhibit H ("Assignment and Acceptance") together with any Note or Notes subject to such assignment; and (z) such Lender or the Assignee shall have paid to the Administrative Agent a processing fee in the amount of U.S. $3,000; and (ii) concurrently with such assignment, the assignor Lender shall assign to the Assignee a proportionate share of its loans, commitment and other rights and obligations under the Long-Term Credit Agreement.
(b) From and after the date that the Administrative Agent notifies the assignor Lender that it has received (and, to the extent required, provided its consent and received the consents of Culligan, the Issuing Lender and the Swing Line Lender with respect to) an executed Assignment and Acceptance and payment of the above-referenced processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights hereunder have been assigned to it and obligations hereunder have been assumed by it pursuant to such Assignment and Acceptance, shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assignor Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under the Loan Documents.
(c) Any Lender may at any time sell to one or more commercial banks or other Persons not Affiliates of Culligan (a "Participant") participating interests in any Loan, the Commitment of such Lender and the other interests of such Lender (the "originating Lender") hereunder and under the other Loan Documents; provided, however, that (i) the originating Lender's obligations under this Agreement shall remain unchanged, (ii) the originating Lender shall remain solely responsible for the performance of such obligations, (iii) the Borrowers, the Issuing Lender, the Swing Line Lender and the Administrative Agent shall continue to deal solely and directly with the originating Lender in connection with the originating Lender's rights and obligations under this Agreement and the each other Loan Documents, and Document; and
(iv) no Participant, unless such Participant is an Affiliate of such Lender, shall be entitled to require such Lender shall transfer to take or grant refrain from taking any participating interest action hereunder or under which the Participant has rights to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent that such amendmentLender may agree with any Participant that such Lender will not, consent or waiver would require unanimous consent without such Participant's consent, take any action of the Lenders as type described in the first proviso to Section 12.
1. In the case of any such participation, the Participant shall be entitled to the benefit of Sections 4.1, 4.3, 4.4, 4.6 and 12.5 as though it were also a Lender hereunder, and if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, the Participant shall be deemed to have the right of set-off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement.
(d) Notwithstanding any other provision in this Agreement, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement and any Note held by it in favor of any Federal Reserve Bank in accordance with Regulation A of the FRB or U.S. Treasury Regulation 31 CFR (S)203.14, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law.
Appears in 1 contract
Assignments, Participations, etc. (a) Any Lender mayThe provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns permitted hereby, with except that no Borrower may not assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of Culliganeach Lender (and any attempted assignment or transfer by any Borrower without such consent shall be null and void). Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby, Participants to the extent provided in subsection (d) of this Section and, to the extent expressly contemplated hereby, the Administrative AgentIndemnitees) any legal or equitable right, the Issuing remedy or claim under or by reason of this Agreement.
(b) Any Lender and the Swing Line Lender (which consents shall not be unreasonably withheld), may at any time assign and delegate to one or more Eligible Assignees all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitment and the Loans (including for purposes of this subsection (b), participations in L/C Obligations) at the time owing to it); provided that
(i) except in the case of an assignment of the entire remaining -------- amount of the assigning Lender's Commitment and the Loans at the time owing to it or in the case of an assignment to a Lender or an Affiliate of a Lender or an Approved Fund with respect to a Lender, the aggregate amount of the Commitment (which for this purpose includes Loans outstanding thereunder) subject to each such assignment, determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent or, if "Trade Date" is specified in the Assignment and Assumption, as of the Trade Date, shall not be less than $5,000,000 unless each of the Administrative Agent and, so long as no Event of Default has occurred and is continuing, the Company otherwise consents (each such consent not to be unreasonably withheld or delayed), (ii) each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender's rights and obligations under this Agreement with respect to the Loans or the Commitment assigned, and (iii) 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. Subject to acceptance and recording thereof by the Administrative Agent pursuant to subsection (c) of this Section, from and after the effective date specified in each Assignment and Assumption, the Eligible Assignee thereunder shall be a party to this Agreement 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 4.01, 4.02 and 4.05 with respect to ------------- ---- ---- facts and circumstances occurring prior to the effective date of such assignment). Upon request, the Borrowers (at their expense) shall execute and deliver new or replacement Notes to the assigning Lender and the assignee Lender. Any assignment or transfer by a Lender of rights or obligations under this Agreement that no written does not comply with this subsection 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 subsection (d) of this Section.
(c) The Administrative Agent, acting solely for this purpose as an agent of the Borrowers, shall maintain at the Administrative Agent's Office a copy of each Assignment and Assumption delivered to it and a register for the recordation of the names and addresses of the Lenders, and the Commitments of, and principal amounts of the Loans and L/C Obligations owing to, each Lender pursuant to the terms hereof from time to time (the "Register"). The entries in -------- the Register shall be conclusive, and the Borrowers, the Administrative Agent and the Lenders may treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available for inspection by the Borrowers and any Lender, at any reasonable time and from time to time upon reasonable prior notice.
(d) Any Lender may at any time, without the consent of Culliganof, or notice to, the Borrowers or the Administrative Agent, the Issuing Lender sell participations to any Person (other than a natural person or the Swing Line Lender shall be required Company or any of the Company's Affiliates or Subsidiaries (each, a "Participant") in connection with any assignment and delegation by all or a Lender to an Eligible Assignee that is an Affiliate portion of such Lender Lender's rights ----------- and/or obligations under this Agreement (so long as such assignment will not result in any increased costs to the Borrowers) or to another Lender) (each an "Assignee") including all or any part a portion of its Commitment and/or the Loans, the Commitment, the Loans (including such Lender's participations in L/C Obligations and the other rights and obligations of such Lender hereunder, in a minimum Dollar Equivalent amount of U.S. $5,000,000 or, if less, the entire amount of the Loans, Commitment, L/C Obligations and other rights and obligations of such Lender hereunderObligations) owing to it); provided that (i) such Lender's obligations under -------- this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the Borrowers other parties hereto for the performance of such obligations and (iii) the Borrowers, the Administrative Agent may and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender's rights and obligations under this Agreement. Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement or instrument may provide that such -------- Lender will not, without the consent of the Participant, agree to any amendment, waiver or other modification that would (i) postpone any date upon which any payment of money is scheduled to be paid to such Participant, (ii) reduce the principal, interest, fees or other amounts payable to such Participant, or (iii) release any Guarantor from the Master Guaranty and Intercreditor Agreement. Subject to subsection (e) of this Section, each Borrower agrees that each Participant shall be entitled to the benefits of Sections 4.01, 4.02 and 4.05 to ------------- ---- ---- the same extent as if it were a Lender and had acquired its interest so assigned by assignment pursuant to an Assignee until subsection (xb) written notice of this Section. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 11.09 ------------- as though it were a Lender, provided such assignment, together with Participant agrees to be subject to -------- Section 2.13 as though it were a Lender. ------------
(e) A Participant shall not be entitled to receive any greater payment instructions, addresses and related information under Section 4.01 or 4.02 than the applicable Lender would have been entitled ----------- ---- to receive with respect to the Assigneeparticipation sold to such Participant, unless the sale of the participation to such Participant is made with the Company's prior written consent. A Participant that would be a foreign Person if it were a Lender shall have been given to Culligan and the Administrative Agent by such Lender and the Assignee; (y) such Lender and the Assignee shall have delivered not be entitled to the Borrowers and benefits of Section 4.01 unless the Administrative Agent an Assignment and Acceptance in Company ------------ is notified of the form of Exhibit H ("Assignment and Acceptance") together with any Note or Notes subject participation sold to such assignment; Participant and (z) such Lender or Participant agrees, for the Assignee shall have paid benefit of the Borrowers, to the Administrative Agent comply with Section 4.01 as though ---- it were a processing fee in the amount of U.S. $3,000; and (ii) concurrently with such assignment, the assignor Lender shall assign to the Assignee a proportionate share of its loans, commitment and other rights and obligations under the Long-Term Credit AgreementLender.
(b) From and after the date that the Administrative Agent notifies the assignor Lender that it has received (and, to the extent required, provided its consent and received the consents of Culligan, the Issuing Lender and the Swing Line Lender with respect to) an executed Assignment and Acceptance and payment of the above-referenced processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights hereunder have been assigned to it and obligations hereunder have been assumed by it pursuant to such Assignment and Acceptance, shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assignor Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under the Loan Documents.
(cf) Any Lender may at any time sell to one pledge or more commercial banks or other Persons not Affiliates of Culligan (a "Participant") participating interests in any Loan, the Commitment of such Lender and the other interests of such Lender (the "originating Lender") hereunder and under the other Loan Documents; provided, however, that (i) the originating Lender's obligations under this Agreement shall remain unchanged, (ii) the originating Lender shall remain solely responsible for the performance of such obligations, (iii) the Borrowers, the Issuing Lender, the Swing Line Lender and the Administrative Agent shall continue to deal solely and directly with the originating Lender in connection with the originating Lender's rights and obligations under this Agreement and the other Loan Documents, and (iv) no Lender shall transfer or grant any participating interest under which the Participant has rights to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment, consent or waiver would require unanimous consent of the Lenders as described in the first proviso to Section 12.
1. In the case of any such participation, the Participant shall be entitled to the benefit of Sections 4.1, 4.3, 4.4, 4.6 and 12.5 as though it were also a Lender hereunder, and if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, the Participant shall be deemed to have the right of set-off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement.
(d) Notwithstanding any other provision in this Agreement, any Lender may at any time create assign a security interest in, or pledge, in all or any portion of its rights under and interest in this Agreement and (including under its Notes, if any) to secure obligations of such Lender, including any Note held by it in favor of any pledge or assignment to secure obligations to a Federal Reserve Bank in accordance with Regulation A of the FRB or U.S. Treasury Regulation 31 CFR (S)203.14, and such Federal Reserve Bank may enforce Bank; provided that no such pledge or security interest in -------- assignment shall release such Lender from any manner permitted under applicable lawof its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
(g) As used herein, the following terms have the following meanings:
Appears in 1 contract
Samples: Credit Agreement (Aecom Merger Corp)
Assignments, Participations, etc. (a1) Any Lender maymay at any time, with the written consent of Culliganthe Agent and, but only so long as there does not exist an Event of Default, the Administrative Agent, the Issuing Lender and the Swing Line Lender Company (which consents consent shall not be unreasonably withheldwithheld by the Company), at any time assign and delegate to one or more Eligible Assignees (provided that no written consent of Culligan, the Administrative Agent, the Issuing Lender or the Swing Line Lender shall be required in connection with any assignment and delegation by a Lender to an Eligible Assignee that is an Affiliate of such Lender (so long as such assignment will not result in any increased costs to the Borrowers) or to another Lender) financial institutions (each an "“Assignee"”) all all, or any ratable part of all, of the Loans, the Commitment, the L/C Obligations Revolving Loans and the other rights and obligations of such Lender hereunder, hereunder in a minimum Dollar Equivalent amount of U.S. $5,000,000 or5,000.000.00; provided, if lesshowever, that the entire amount of the Loans, Commitment, L/C Obligations and other rights and obligations of such Lender hereunder; provided that (i) the Borrowers Company and the Administrative Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (xi) written notice of such assignment, together with payment instructions, addresses and related information with respect to the Assignee, shall have been given to Culligan the Company and the Administrative Agent by such Lender and the Assignee; and (yii) such Lender and the its Assignee shall have delivered to the Borrowers Company and the Administrative Agent an Assignment and Acceptance in the form of Exhibit H ("Assignment and Acceptance") together with any Note or Notes subject to such assignment; and (z) such Lender or the Assignee shall have paid to the Administrative Agent a processing fee in the amount of U.S. $3,000; and (ii) concurrently with such assignment, the assignor Lender shall assign to the Assignee a proportionate share of its loans, commitment and other rights and obligations under the Long-Term Credit Agreement.
(b) . From and after the date that the Administrative Agent notifies the assignor Lender that it has received (and, to the extent required, provided its consent and received the consents of Culligan, the Issuing Lender and the Swing Line Lender with respect to) an executed Assignment and Acceptance and payment of the above-referenced processing feeAgreement, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned to it and obligations hereunder have been assumed by it pursuant to such Assignment and AcceptanceAcceptance Agreement, shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assignor Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and AcceptanceAcceptance Agreement, relinquish its rights and be released from its obligations under the Loan Documents. Upon the effective date of such assignment, this Agreement and the other Loan Documents shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Percentage Share arising therefrom.
(c2) Any Lender may at any time sell to one or more commercial banks financial institutions or other Persons not Affiliates of Culligan (each a "“Participant"”) participating interests in any LoanRevolving Loans, the Commitment funding commitment of such that Lender and the other interests of such that Lender (the "“originating Lender"”) hereunder and under the other Loan Documents; provided, however, that (i) the originating Lender's ’s obligations under this Agreement shall remain unchanged, (ii) the originating Lender shall remain solely responsible for the performance of such obligations, (iii) the Borrowers, the Issuing Lender, the Swing Line Lender Company and the Administrative Agent shall continue to deal solely and directly with the originating Lender in connection with the originating Lender's ’s rights and obligations under this Agreement and the other Loan Documents, and (iv) no following such sale that Lender shall transfer or grant continue to hold for its own account a Percentage Share of the Aggregate Credit Limit of not less than $5,000,000.00.
(3) Notwithstanding any participating interest under which the Participant has rights to approve any amendment to, or any consent or waiver with respect to, other provision contained in this Agreement or any other Loan Document, except Document to the extent such amendment, consent or waiver would require unanimous consent of the Lenders as described in the first proviso to Section 12.
1. In the case of any such participation, the Participant shall be entitled to the benefit of Sections 4.1, 4.3, 4.4, 4.6 and 12.5 as though it were also a Lender hereunder, and if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, the Participant shall be deemed to have the right of set-off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement.
(d) Notwithstanding any other provision in this Agreementcontrary, any Lender may at any time create a security interest in, or pledge, assign all or any portion of its rights under and interest in this Agreement and any Note the Revolving Loans held by it in favor of to any Federal Reserve Bank in accordance with Lender or the United States Treasury as collateral security pursuant to Regulation A of the FRB or U.S. Treasury Regulation 31 CFR (S)203.14, Board of Governors of the Federal Reserve System and any Operating Circular issued by such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable lawLender.
Appears in 1 contract
Samples: Credit Agreement (Osi Systems Inc)
Assignments, Participations, etc. (a) Any The Lender may, with the written consent of Culliganthe Borrower at all times other than during the existence of an Event of Default, which consent of the Administrative Agent, the Issuing Lender and the Swing Line Lender (which consents Borrower shall not be unreasonably withheld), at any time assign sell, assign, transfer and delegate to one or more Eligible Assignees (provided that no written consent of Culligan, the Administrative Agent, the Issuing Lender or the Swing Line Lender Borrower shall be required in connection with any assignment sale, assignment, transfer and delegation by a the Lender to an Eligible Assignee that is an Affiliate of such Lender (so long as such assignment will not result in any increased costs to the Borrowers) or to another Lender) (each an "“Assignee"”) all all, or any part of the Loans, the Commitment, the L/C Obligations Commitment and the other rights and obligations of such Lender hereunder, in a minimum Dollar Equivalent amount of U.S. $5,000,000 or, if less, the entire amount of the Loans, Commitment, L/C Obligations and other rights and obligations of such Lender hereunder; provided provided, however, that (i) the Borrowers and the Administrative Agent Borrower may continue to deal solely and directly with such the Lender in connection with the interest so assigned to an Assignee until (x) written notice of such assignment, together with payment instructions, addresses and related information with respect to the Assignee, shall have been given to Culligan and the Administrative Agent Borrower by such the Lender and the Assignee; (y) such Lender and the Assignee shall have delivered to the Borrowers and the Administrative Agent an Assignment and Acceptance in the form of Exhibit H ("Assignment and Acceptance") together with any Note or Notes subject to such assignment; and (z) such Lender or the Assignee shall have paid to the Administrative Agent a processing fee in the amount of U.S. $3,000; and (ii) concurrently with such assignment, the assignor Lender shall assign to the Assignee a proportionate share of its loans, commitment and other rights and obligations under the Long-Term Credit Agreement.
(b) From and after the date that the Administrative Agent notifies the assignor Lender that it has received (and, to the extent required, provided its consent and received the consents of Culligan, the Issuing Lender and the Swing Line Lender with respect to) such Assignee have executed an executed Assignment and Acceptance and payment of the above-referenced processing feeAcceptance, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it and obligations hereunder have been assumed by it pursuant to such Assignment and Acceptance, shall have the rights and obligations of a the Lender under the Loan Documents, and (ii) the assignor Lender shallLender, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under the Loan Documents.
(c) Any Lender may at any time sell to one or more commercial banks or other Persons not Affiliates of Culligan (a "Participant") participating interests in any Loan, the Commitment of such Lender and the other interests of such Lender (the "originating Lender") hereunder and under the other Loan Documents; provided, however, that (i) the originating Lender's obligations under this Agreement shall remain unchanged, (ii) the originating Lender shall remain solely responsible for the performance of such obligations, (iii) the Borrowers, the Issuing Lender, the Swing Line Lender and the Administrative Agent shall continue to deal solely and directly with the originating Lender in connection with the originating Lender's rights and obligations under this Agreement and the other Loan Documents, and (iv) no Lender shall transfer or grant any participating interest under which the Participant has rights to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment, consent or waiver would require unanimous consent of the Lenders as described in the first proviso to Section 12.
1. In the case of any such participation, the Participant shall be entitled to the benefit of Sections 4.1, 4.3, 4.4, 4.6 and 12.5 as though it were also a Lender hereunder, and if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, the Participant shall be deemed to have the right of set-off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement.
(d) Notwithstanding any other provision in this Agreement, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement and any Note held by it in favor of any Federal Reserve Bank in accordance with Regulation A of the FRB or U.S. Treasury Regulation 31 CFR (S)203.14, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law.
Appears in 1 contract
Samples: Credit Agreement (Telvent Git S A)
Assignments, Participations, etc. (a) Any Lender may, with the written consent of Culligan, Max Re (at all times other than during the existence of an Event of Default) and the Administrative Agent, the Issuing Lender and the Swing Line Lender (which consents shall not be unreasonably withheld), and the Fronting Bank, at any time assign and delegate to one or more Eligible Assignees (provided that no written consent of Culligan, Max Re or the Administrative Agent, the Issuing Lender or the Swing Line Lender Agent shall be required in connection with any assignment and delegation by a Lender to an Eligible Assignee that is an Affiliate of such Lender (so long as such assignment will not result in any increased costs to the Borrowers) or to another existing Lender) (each an "“Assignee"”) all all, or any ratable part of all, of the LoansCredit Extentions, the Commitment, the L/C Obligations Commitments and the other rights and obligations of such Lender hereunder, provided, however, that (w) the aggregate principal amount of the Commitments assigned by any Lender to someone other than another Lender shall be in a minimum Dollar Equivalent amount of U.S. $5,000,000 or, (or if less, the entire Commitments then held by such Lender), (x) after giving effect to any such assignment by a Lender, the aggregate amount of the Loans, Commitment, L/C Obligations and other rights and obligations of Commitments and/or Credit Extensions held by such assigning Lender is at least $5,000,000 (unless such Lender hereunder; provided that has assigned the entire Commitments and Credit Extensions then held by it), (iy) after giving effect to any such assignment by a Lender, the Assignee Percentage under the Tranche A Commitment and Tranche B Commitment is the same and the Percentage of the assignor Lender under the Tranche A Commitments and the Tranche B Commitments is the same, and (z) the Assignee provides the Administrative Agent and Max Re with the form specified in Section 9.10. The Borrowers and the Administrative Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (xi) written notice of such assignment, together with payment instructions, addresses and related information with respect to the Assignee, shall have been given to Culligan Max Re and the Administrative Agent by such Lender and the Assignee; (yii) such Lender and the its Assignee shall have delivered to the Borrowers Max Re and the Administrative Agent an Assignment and Acceptance in the form of Exhibit H C ("“Assignment and Acceptance"”) together with any Note or Notes subject to such assignment; and (ziii) such the assignor Lender or the Assignee shall have has paid to the Administrative Agent a processing fee in the amount of U.S. $3,000; and (ii) concurrently with such assignment, the assignor Lender shall assign to the Assignee a proportionate share of its loans, commitment and other rights and obligations under the Long-Term Credit Agreement2,500.
(b) From and after the date that the Administrative Agent notifies the assignor Lender that it has received (and, to the extent required, and provided its consent and received the consents of Culligan, the Issuing Lender and the Swing Line Lender with respect to) an executed Assignment and Acceptance and payment of the above-referenced processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it and obligations hereunder have been assumed by it pursuant to such Assignment and Acceptance, shall have the rights and obligations of a Lender under the Loan Credit Documents, and (ii) the assignor Lender shall, to the extent that rights and obligations hereunder and under the other Loan Credit Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under the Loan Credit Documents.
(c) Any Lender may at any time sell to one or more commercial banks or other Persons not Affiliates of Culligan (a "Participant") participating interests in any Loan, the Commitment of such Lender and the other interests of such Lender (the "originating Lender") hereunder and under the other Loan Documents; provided, however, that (i) the originating Lender's obligations under this Agreement shall remain unchanged, (ii) the originating Lender shall remain solely responsible for the performance of such obligations, (iii) the Borrowers, the Issuing Lender, the Swing Line Lender and the Administrative Agent shall continue to deal solely and directly with the originating Lender in connection with the originating Lender's rights and obligations under this Agreement and the other Loan Documents, and (iv) no Lender shall transfer or grant any participating interest under which the Participant has rights to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment, consent or waiver would require unanimous consent of the Lenders as described in the first proviso to Section 12.
1. In the case of any such participation, the Participant shall be entitled to the benefit of Sections 4.1, 4.3, 4.4, 4.6 and 12.5 as though it were also a Lender hereunder, and if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, the Participant shall be deemed to have the right of set-off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement.
(d) Notwithstanding any other provision in this Agreement, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement and any Note held by it in favor of any Federal Reserve Bank in accordance with Regulation A of the FRB or U.S. Treasury Regulation 31 CFR (S)203.14, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law.
Appears in 1 contract
Assignments, Participations, etc. (a) Any Lender may, with the written consent of CulliganBorrower, the Administrative Agent, the Issuing Lender and the Swing Line Lender (which consents consent shall not be unreasonably withheld), and Agent, at any time assign and delegate to one or more Eligible Assignees (provided that no written consent of Culligan, the Administrative Agent, the Issuing Lender Agent or the Swing Line Lender Borrower shall be required in connection with any assignment and delegation by a Lender to an Eligible Assignee that is an Affiliate of such Lender (so long as such assignment will not result in any increased costs to the Borrowers) or to another Lender) (each an "Assignee") all all, or any ratable part of all, of the Loans, the Commitment, the L/C Obligations Commitments and the other rights and obligations of such Lender hereunder, in a minimum Dollar Equivalent amount of U.S. $5,000,000 or, if less, the entire amount of the Loans, Commitment, L/C Obligations and other rights and obligations Commitment of such Lender hereunderLender; provided provided, however, that (i) the Borrowers Borrower and the Administrative Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until until:
(xi) written notice of such assignment, together with payment instructions, addresses and related information with respect to the Assignee, shall have been given to Culligan the Borrower and the Administrative Agent by such Lender and the Assignee; ;
(yii) such Lender and the its Assignee shall have delivered to the Borrowers Borrower and the Administrative Agent an Assignment and Acceptance in form and substance reasonably satisfactory to the form of Exhibit H Agent, such Lender and its Assignee (an "Assignment and Acceptance"); and
(iii) together with any Note or Notes subject to such assignment; and (z) such the assignor Lender or the Assignee shall have has paid to the Administrative Agent a processing fee in the amount of U.S. $3,000; and (ii) concurrently with such assignment, the assignor Lender shall assign to the Assignee a proportionate share of its loans, commitment and other rights and obligations under the Long-Term Credit Agreement3,500.
(b) From and after the date that the Administrative Agent notifies the assignor Lender that it the Agent has received (and, to the extent required, and provided its consent and received the consents of Culligan, the Issuing Lender and the Swing Line Lender with respect to) to an executed Assignment and Acceptance and payment of the above-referenced processing fee, :
(i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it and obligations hereunder have been assumed by it pursuant to such Assignment and Acceptance, shall have the rights and obligations of a Lender under this Agreement and the other Loan Documents, and ; and
(ii) the assignor Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under the Loan Documents.
(c) Immediately upon the making of the processing fee payment to the Agent in respect of the Assignment and Acceptance, this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitment of the assigning Lender to the same extent.
(d) Any Lender may at any time sell to one or more commercial banks or other Persons not Affiliates of Culligan (a "Participant") participating interests in any LoanLoans, the Commitment of such that Lender and the other interests of such that Lender (the "originating Originating Lender") hereunder and under the other Loan Documents; provided, however, that that:
(i) the originating Originating Lender shall provide written notice of such assignment to the Borrower and the Agent;
(ii) the Originating Lender's obligations under this Agreement shall remain unchanged, ;
(iiiii) the originating Originating Lender shall remain solely responsible for the performance of such obligations, ;
(iiiiv) the Borrowers, the Issuing Lender, the Swing Line Lender Borrower and the Administrative Agent shall continue to deal solely and directly with the originating Originating Lender in connection with the originating Originating Lender's rights and obligations under this Agreement and the other Loan Documents, and ;
(ivv) no Lender shall transfer or grant any participating interest under which the Participant has shall have rights to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment, consent or waiver would require unanimous consent of the Lenders as described in the first proviso to Section 12.9.1; and
1(vi) the participation shall be in a minimum amount of $5,000,000 or, if less, the entire Commitment of such Originating Lender. In the case of any such participation, the Participant shall be entitled to the benefit of Sections 4.1, 4.3, 4.4, 4.6 and 12.5 as though it were also a Lender hereunder, and if amounts outstanding under this Agreement are due and unpaid, or shall not have been declared or shall have become due and payable upon the occurrence of an Event of Default, the Participant shall be deemed to have the right of set-off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender any rights under this Agreement, or any of the other Loan Documents, and all amounts payable by the Borrower hereunder shall be determined as if such Lender had not sold such participation.
(de) Notwithstanding any other provision contained in this AgreementAgreement or any other Loan Document to the contrary, any Lender may at any time create a security interest in, or pledge, assign all or any portion of its rights under and interest in this Agreement and any Note the Loans held by it in favor of to any Federal Reserve Bank in accordance with Lender or the United States Treasury as collateral security pursuant to Regulation A of the FRB or U.S. Treasury Regulation 31 CFR (S)203.14, Federal Reserve Board and any Operating Circular issued by such Federal Reserve Bank may enforce Lender, provided that any payment in respect of such pledge assigned Loans made by the Borrower to or security interest for the account of the assigning or pledging Lender in any manner permitted under applicable lawaccordance with the terms of this Agreement shall satisfy the Borrower's obligations hereunder in respect to such assigned Loans to the extent of such payment. No such assignment shall release the assigning Lender from its obligations hereunder.
Appears in 1 contract
Samples: Credit Agreement (Packaged Ice Inc)
Assignments, Participations, etc. (a) Any Lender mayFrom time to time following the Effective Date, with the written consent of Culligan, the Administrative Agent, the Issuing Lender and the Swing Line Lender (which consents shall not be unreasonably withheld), at any time each Bank may assign and delegate to one or more Eligible Assignees (provided that no written consent of Culligan, the Administrative Agent, the Issuing Lender or the Swing Line Lender shall be required in connection with any assignment and delegation by a Lender to an Eligible Assignee that is an Affiliate of such Lender (so long as such assignment will not result in any increased costs to the Borrowers) or to another Lender) (each an "Assignee") all or any part portion of the its Commitment and outstanding Loans, the Commitment, the L/C Obligations and the other rights and obligations of such Lender hereunder, in a minimum Dollar Equivalent amount of U.S. $5,000,000 or, if less, the entire amount of the Loans, Commitment, L/C Obligations and other rights and obligations of such Lender hereunder; provided that (i) such assignment, if not to a Bank or an -------- Affiliate of the Borrowers assigning Bank, shall be consented to by the Company at all times other than during the existence of a Default or Event of Default and by the Administrative Agent may continue to deal solely (which approval of the Company shall not be unreasonably withheld or delayed), (ii) a copy of a duly signed and directly with such Lender in connection with the interest so assigned to an Assignee until (x) written notice of such assignment, together with payment instructions, addresses and related information with respect to the Assignee, shall have been given to Culligan and the Administrative Agent by such Lender and the Assignee; (y) such Lender and the Assignee shall have delivered to the Borrowers and the Administrative Agent an completed Assignment and Acceptance in the form of Exhibit H ("Assignment and Acceptance") together with --------- ------------------------- shall be delivered to the Administrative Agent and the Company, (iii) except in the case of an assignment (A) to an Affiliate of the assigning Bank or to another Bank or (B) of the entire remaining Commitment of the assigning Bank, the portion of the Commitment assigned shall not be less than $10,000,000, (iv) the assigning Bank shall have delivered any Note or Notes subject to such assignment; and (z) such Lender or the Assignee shall have paid assignment to the Administrative Agent a processing fee Agent, and (v) the effective date of any such assignment shall be as specified in the amount Assignment and Acceptance, but not earlier than the date which is five Business Days after the date the Administrative Agent has received the Assignment and Acceptance. Upon satisfaction of U.S. $3,000; the conditions set forth in the prior sentence, any forms required by Section 3.01(f) and payment of the requisite fee described below, --------------- the assignee named therein shall be a Bank for all purposes of this Agreement effective as of the specified effective date to the extent of the Assigned Interest (ii) concurrently with as defined in such Assignment and Acceptance), and the assigning Bank shall be released from any further obligations under this Agreement to the extent of such Assigned Interest. Until satisfaction of the conditions set forth herein to any assignment, the assignor Lender Company and Administrative Agent may continue to deal solely and directly with the assigning Bank in connection the Assigned Interest. Upon request following satisfaction of the conditions set forth herein to any assignment, the Company shall assign execute and deliver new or replacement Notes to the Assignee a proportionate share of its loans, commitment assigning Bank and other rights and obligations under the Long-Term Credit Agreementassignee Bank to evidence Loans made by them. The Administrative Agent's consent to any assignment shall not be deemed to constitute any representation or warranty by any Administrative Agent- Related Person as to any matter.
(b) From and after the date that the Administrative Agent notifies the assignor Lender that it has received (and, to the extent required, provided its consent and received the consents After receipt of Culligan, the Issuing Lender and the Swing Line Lender with respect to) an executed Assignment and Acceptance and payment of the above-referenced processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights hereunder have been assigned to it and obligations hereunder have been assumed by it pursuant to such completed Assignment and Acceptance, shall have and receipt of an assignment fee of $3,500 from such Eligible Assignee or such assigning Bank (including in the rights and obligations case of a Lender under assignments to Affiliates of assigning Banks), the Loan Documents, and (ii) the assignor Lender Administrative Agent shall, promptly following the effective date thereof, provide to the extent that rights Borrower and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under the Loan Documents.Banks a revised Schedule 10.06 giving effect thereto. --------------
(c) Any Lender Upon advance written notice to the Company, any Bank may at any time sell to one or more commercial banks or other Persons not Affiliates of Culligan the Company (a "Participant") participating interests in any LoanLoans, the Commitment ----------- of such Lender that Bank and the other interests of such Lender that Bank (the "originating LenderBank") hereunder and under the other Loan Documents; provided, however, that (i) the -------- ------- originating LenderBank's obligations under this Agreement shall remain unchanged, (ii) the originating Lender Bank shall remain solely responsible for the performance of such obligations, (iii) the Borrowers, the Issuing Lender, the Swing Line Lender Company and the Administrative Agent shall continue to deal solely and directly with the originating Lender Bank in connection with the originating LenderBank's rights and obligations under this Agreement and the other Loan Documents, and (iv) no Lender Bank shall transfer or grant any participating interest under which the Participant has shall have rights to approve any amendment to, or any consent or waiver with respect to, to this Agreement or any other Loan Document, except to the extent such amendment, consent or waiver would require unanimous consent of the Lenders as described in the first proviso to Section 12.
1. In the case of any such participation, the Participant shall be entitled to the benefit of Sections 4.1, 4.3, 4.4, 4.6 and 12.5 as though it were also a Lender hereunder, and if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, the Participant shall be deemed to have the right of set-off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement.
(d) Notwithstanding any other provision in this Agreement, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement and any Note held by it in favor of any Federal Reserve Bank in accordance with Regulation A of the FRB or U.S. Treasury Regulation 31 CFR (S)203.14, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law.proviso
Appears in 1 contract
Samples: Credit Agreement (Mattel Inc /De/)
Assignments, Participations, etc. (a) Subject to the consents required under Section 11.08(b), each Lender reserves the right, at any time, to syndicate its Commitments, Loans, rights and obligations under this Agreement and the Loan Documents to one or more Eligible Assignees identified by it. Upon request, Borrowers shall reasonably assist each such Lender in connection with any proposed syndication.
(b) Any Lender may, with the written consent of Culligan, the Administrative Agent, the Issuing Lender and the Swing Line Lender (which consents consent shall not be unreasonably withheld, and, unless an Event of Default has occurred and is continuing, the written consent of Borrower Representative, which consent shall not be unreasonably withheld (and which shall be deemed granted if no response to a request for consent has been objected to within five (5) Business Days after request therefor), at any time assign and delegate to one or more Eligible Assignees (provided that no written consent of Culligan, the Administrative Agent, the Issuing Lender Agent or the Swing Line Lender Borrower Representative shall be required in connection with any assignment and delegation by a Lender to an Eligible Assignee that is an Affiliate of such Lender (so long as such assignment will not result in any increased costs to the Borrowers) or to another a bank loan fund managed by such Lender) (each an "“Assignee"”)
(i) all or any part of the Loans, the CommitmentCommitments, the L/C Obligations and the other rights and obligations of such Lender hereunder, or (ii) any ratable part thereof in a minimum Dollar Equivalent amount of U.S. Five Million Dollars ($5,000,000 or5,000,000); provided, if less, the entire amount of the Loans, Commitment, L/C Obligations and other rights and obligations of such Lender hereunder; provided that (i) the Borrowers and the Administrative Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (xA) written notice of such assignment, together with payment instructions, addresses and related information with respect to the Assignee, shall have been given to Culligan Borrowers and the Administrative Agent by such Lender and the Assignee; (yB) such Lender and the its Assignee shall have delivered to the Borrowers Borrower Representative and the Administrative Agent an Assignment and Acceptance in the form of Exhibit H prescribed by Agent ("“Assignment and Acceptance") together with any Note or Notes subject to such assignment; ”), and (zC) such the assignor Lender or the Assignee shall have has paid to the Administrative Agent a processing fee in the amount of U.S. Three Thousand Five Hundred Dollars ($3,000; and (ii3,500) concurrently with such assignment, the assignor Lender shall assign to unless the Assignee a proportionate share of its loans, commitment and other rights and obligations under the Long-Term Credit Agreementis an existing Lender.
(bc) From and after the date that the Administrative Agent notifies the assignor Lender that it has received (and, to the extent required, provided its consent all necessary consents and received the consents of Culligan, the Issuing Lender and the Swing Line Lender with respect to) an executed Assignment and Acceptance and payment of the above-referenced processing feefee if required under Section 11.08(b), (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder and under the Loan Documents have been assigned to it and obligations hereunder have been assumed by it pursuant to such Assignment and Acceptance, shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assignor Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under the Loan Documents.
(cd) Immediately upon the giving of Agent’s notice under Section 11.08(c), this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitments of the assigning Lender pro tanto.
(e) Any Lender may at any time sell to one or more commercial banks Lenders or other Persons not Affiliates of Culligan any Credit Party (a "“Participant"”) participating interests in any LoanLoans, the Commitment of such that Lender and the other interests of such that Lender (the "“originating Lender"”) hereunder and under the other Loan Documents; provided, however, that (i) the originating Lender's ’s obligations under this Agreement shall remain unchanged, (ii) the originating Lender shall remain solely responsible for the performance of such obligations, and (iii) the Borrowers, the Issuing Lender, the Swing Line Lender Borrowers and the Administrative Agent shall continue to deal solely and directly with the originating Lender in connection with the originating Lender's ’s rights and obligations under this Agreement and the other Loan Documents, and (iv) no Lender shall transfer or grant any participating interest under which the Participant has rights to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment, consent or waiver would require unanimous consent of the Lenders as described in the first proviso to Section 12.
1. In the case of any such participation, the Participant shall be entitled to the benefit of Sections 4.14.01, 4.3, 4.4, 4.6 4.03(b) and 12.5 11.05 as though it were also a Lender hereunder, and if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, the Participant shall be deemed to have the right of set-off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement.
(df) Notwithstanding any other provision in this Agreement, any Lender may at any time create grant a security interest in, or pledgeotherwise assign as collateral, all or any portion of its rights under and this Agreement, whether now owned or hereafter acquired (including rights to payments of principal or interest in this Agreement and on the Loans), to (A) any Note held by it in favor of any Federal Reserve Bank in accordance with federal reserve bank (pursuant to Regulation A of the FRB or U.S. Treasury Regulation 31 CFR (S)203.14, and such Federal Reserve Bank may enforce Board), without notice to Agent or (B) any holder of, or trustee for the benefit of the holders of, such pledge Lender’s Indebtedness or security interest equity securities, by notice to Agent; provided, however, that no such holder or trustee, whether because of such grant or assignment or any foreclosure thereon (unless such foreclosure is made through an assignment in accordance with clause (b) above), shall be entitled to any manner permitted under applicable lawrights of such Lender hereunder and no such Lender shall be relieved of any of its obligations hereunder.
Appears in 1 contract
Assignments, Participations, etc. (a) Any Lender may, with the written consent of Culligan, the Administrative Agent, the Issuing Lender and the Swing Line Lender (which consents shall not be unreasonably withheld), may at any time assign and delegate to one or more Eligible Assignees (provided that no written consent of Culligan, the Administrative Agent, the Issuing Lender or the Swing Line Lender shall be required in connection with any assignment and delegation by a Lender to an Eligible Assignee that is an Affiliate of such Lender (so long as such assignment will not result in any increased costs to the Borrowers) or to another Lender) (each an "Assignee") all all, or any part ratablepart of all, of -------- the Loans, the Commitment, the L/C Obligations Commitments and the other rights and obligations of such Lender hereunder, in a minimum Dollar Equivalent amount of U.S. the lesser of (i) $5,000,000 or, if less, or (ii) the entire full amount of the Loans, Commitment, L/C Obligations the Commitments and the other rights and obligations of such Lender hereunderLender; provided provided, however, that (i) the Borrowers Borrower and the Administrative Post-Petition Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (xi) written notice of such assignment, together with payment instructions, addresses and related information with respect to the Assignee, shall have been given to Culligan the Borrower and the Administrative Post-Petition Agent by such Lender and the Assignee; (yii) such Lender and the its Assignee shall have delivered to the Borrowers Borrower and the Administrative Post-Petition Agent an Assignment and Acceptance in the form of Exhibit H ("Assignment and Acceptance") together with ), requiring, among other --------- ------------------------- things, that any Note or Notes subject Assignee agree to such assignment; be bound by the U.K./US Intercreditor Agreement and the Securitization Intercreditor Agreement and (ziii) such the assignor Lender or the Assignee shall have has paid to the Administrative Post-Petition Agent a processing fee in the amount of U.S. $3,000; and (ii) concurrently with such assignment3,500, the assignor Lender and, provided, further any assignment shall assign be subject to the Assignee a proportionate share restrictions of its loans, commitment and other rights and obligations under the Long-Term Credit Warrant Agreement.
(b) From and after the date that the Administrative Post-Petition Agent notifies the assignor Lender that it has received (and, to the extent required, provided its consent and received the consents of Culligan, the Issuing Lender and the Swing Line Lender with respect to) an executed Assignment and Acceptance and payment of the above-referenced processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it and obligations hereunder have been assumed by it pursuant to such Assignment and Acceptance, shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assignor Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under the Loan Documents.
(c) Immediately upon each Assignee's making its processing fee payment under the Assignment and Acceptance, this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the 101 resulting adjustment of the Commitments arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitments of the assigning Lender pro tanto. --- -----
(d) Any Lender may at any time sell to one or more commercial banks Lenders or other Persons not Affiliates of Culligan (a "Participant") participating interests in any LoanLoans, ----------- the Commitment of such that Lender and the other interests of such that Lender (the "originating Originating Lender") hereunder and under the other Loan Documents; ------------------ provided, however, that (i) the originating Originating Lender's obligations under this Agreement shall remain unchanged, (ii) the originating Originating Lender shall remain solely responsible for the performance of such obligations, (iii) the Borrowers, the Issuing Lender, the Swing Line Lender Borrower and the Administrative Post-Petition Agent shall continue to deal solely and directly with the originating Originating Lender in connection with the originating Originating Lender's rights and obligations under this Agreement and the other Loan Documents, and (iv) no Lender shall transfer or grant any participating interest under which the Participant has rights to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment, consent or waiver would require unanimous consent of the Lenders as described in the first proviso ------- to Section 12.Section
114.1. In the case of any such participation, the Participant ------------ shall be entitled to the benefit of Sections 4.15.2, 4.3, 4.4, 4.6 5.4 and 12.5 11.5 as though it ------------ --- ---- were also a Lender hereunder, and hereunder provided that all amounts payable by the Borrower hereunder shall be determined as if such Originating Lender had not sold such participation. If amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, the each Participant shall be deemed to have the right of set-off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement.
(de) Notwithstanding any other provision in this Agreement, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement and any Note held by it in favor of any Federal Reserve Bank in accordance with Regulation A of the FRB or U.S. Treasury Regulation 31 CFR (S)203.14, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law.
Appears in 1 contract
Samples: Post Petition Multicurrency Superpriority Credit Agreement (Apw LTD)
Assignments, Participations, etc. (a) Any Lender may, with prior written notice (acknowledged in the written consent of Culligan, manner provided in Section 9.13(b)) to the Administrative AgentAgent and (so long as there is no Default or Event of Default that has occurred and is continuing) in consultation with the Borrower, the Issuing Lender and the Swing Line Lender (which consents shall not be unreasonably withheld), at any time assign and delegate to one or more Eligible Assignees commercial banks or other financial institutions (provided that no written consent of Culligan, such consultation with the Administrative Agent, the Issuing Lender or the Swing Line Lender Borrower shall be required in connection with any assignment and delegation by a Lender to an Eligible Assignee that a commercial bank or other financial institution which is an Affiliate of such Lender (so long as such assignment will not result in any increased costs to the Borrowers) or to another Lender) (each or to another Person, with the prior written consent of the Borrower (acting in its sole discretion), provided, however, that (i) in the event a Default or an "Event of Default has occurred and is continuing, such consent of the Borrower shall not be required and (ii) in the event the Borrower fails to notify such Lender of its decision within 15 days from the date such notice of assignment has been given to the Borrower, such consent of the Borrower shall no longer be required) (each, an “Assignee"”) all or any part of the Loans, the Commitment, the L/C Obligations any Loan and the other rights and obligations of such Lender hereunderhereunder and under the other Financing Documents; provided, that (A) each such assignment by a Lender of its Loans or its Commitment shall be made in such a minimum Dollar Equivalent amount manner so that the same portion of U.S. $5,000,000 or, if less, the entire amount such Lender’s (and of the such Lender’s Affiliate’s) Loans, Commitment, L/C Obligations Commitment and other any rights and obligations it may have under any Required Hedging Agreement to which such Lender (or any Affiliate of such Lender hereunderLender) is a party, is assigned to the Assignee (or, in the case of such Required Hedging Agreement, the Assignee or an Affiliate of such Assignee); (B) in the case of an assignment of any part of a Loan to any Assignee, such assignment shall not be for an amount less than $10,000,000 (or a higher integral multiple of $1,000,000 in excess thereof) in each instance; provided that, in the event that the Borrower objects to a proposed assignee and provided there is no Default or Event of Default that has occurred and is continuing, the assigning Lender shall consider in good faith such objection and if the Borrower identifies an alternative bank or other financial institution assignee willing to enter into such assignment on terms which are, for the Lender, no less favorable than those proposed by the assignee proposed by the Lender, the Lender shall not unreasonably withhold its agreement to assign instead to such bank or other financial institution identified by the Borrower; and (iC) the Borrowers Borrower and the Administrative Agent Agents may continue to deal solely and directly with such the assigning Lender in connection with the interest so assigned to an Assignee until (x1) written notice of such assignment, together with payment instructions, addresses and related information with respect to the Assignee, shall have been given to Culligan the Borrower and the Administrative Agent by such assigning Lender and the Assignee; , (y) such Lender and the Assignee shall have delivered to the Borrowers and the Administrative Agent an Assignment and Acceptance in the form of Exhibit H ("Assignment and Acceptance") together with any Note or Notes subject to such assignment; and (z) such 2)the assigning Lender or the Assignee shall have has paid to the Administrative Agent a processing fee in the amount of U.S. $3,000; 3,500, and (ii3) concurrently the assigning Lender shall have delivered to the Borrower and the Administrative Agent an Assignment and Acceptance substantially in the form of Exhibit F hereto (an “Assignment and Acceptance”) with respect to such assignmentassignment from the assigning Lender. Notwithstanding anything to the contrary contained herein, the Borrower shall not be obligated to pay to any Lender any amount under Sections 2.9, 2.10, 2.11 and 2.12 that is greater than the amount that the Borrower would have been obligated to pay such Lender’s assignor if such assigning Lender shall assign had not assigned to the Assignee a proportionate share such Lender any of its loansrights under this Agreement, commitment and other rights and obligations under unless at the Long-Term Credit Agreementtime such assignment is made the circumstances giving rise to such greater payments did not exist.
(b) From Subject to Section 8.10, from and after the date that the Administrative Agent notifies the assignor assigning Lender and the Borrower that it has received (and, to the extent required, provided its consent and received the consents of Culligan, the Issuing Lender and the Swing Line Lender with respect to) an executed Assignment and Acceptance and payment of the above-referenced processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it and obligations hereunder have been assumed by it pursuant to such Assignment and Acceptance, shall have the rights and obligations of a Lender hereunder and under the Loan other Financing Documents, and this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to effect the addition of the Assignee, and any reference to the assigning Lender hereunder or under the other Financing Documents shall thereafter refer to such Lender and to the Assignee to the extent of their respective interests, and (ii) the assignor assigning Lender shall, to the extent that rights and obligations hereunder and under the other Loan Financing Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under the Loan Financing Documents; provided that any Lender that assigns all of its Commitment and Loans hereunder in accordance with Section 9.13(a) shall continue to have the benefit of indemnification provisions under this Agreement (including Sections 2.11, 2.13, 2.14, 9.1 and 9.2), which shall survive as to such assigning Lender.
(c) Promptly after its receipt of notice from the Administrative Agent that it has received an executed Assignment and Acceptance and payment of the processing fee, upon the request of the Assignee, the Borrower shall execute and deliver to the Administrative Agent a new Note evidencing the Assignee’s assigned Commitment and Loans and, upon the request of the assigning Lender, if the assigning Lender has retained a portion of its Loans, the Borrower shall execute and deliver to the Administrative Agent replacement Notes reflecting the Commitment and the principal amount of the Loans retained by the assigning Lender (such Notes to be in exchange for, but not in payment of, the Notes, if any, held by such Lender). The Administrative Agent shall retain any new Notes and replacement Notes received from the Borrower and deliver such Notes to the Assignee and the assigning Lender (as applicable) only upon delivery of the original Note related thereto to the Borrower for cancellation.
(d) Any Lender (the “originating Lender”) may at any time sell to one or more commercial banks or other Persons not Affiliates of Culligan the Borrower (a "“Participant"”) participating interests in any Loan, the Commitment of such Lender and the other interests of such Lender (the "originating Lender") hereunder and under the other Loan DocumentsLoans; provided, however, that (i) the originating Lender's ’s obligations under this Agreement shall remain unchanged, (ii) the ii)the originating Lender shall remain solely responsible for the performance of such obligations, (iii) the Borrowers, the Issuing Lender, the Swing Line Lender iii)the Borrower and the Administrative Agent Agents shall continue to deal solely and directly with the originating Lender in connection with the originating Lender's ’s rights and obligations under this Agreement and the other Loan Financing Documents, and (iv) no iv)no Lender shall transfer or grant any participating interest under which the Participant has shall have rights to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Transaction Document, except to the extent such amendment, consent or waiver would require unanimous consent of the Lenders as described in the first proviso to Section 12.
19.12. In the case of any such participation, the Participant shall be entitled to the benefit of Sections 4.1, 4.3, 4.4, 4.6 and 12.5 as though it were also a Lender hereunder, and if amounts outstanding not have any rights under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon any of the occurrence of an Event of Default, other Financing Documents (the Participant shall be deemed to have Participant’s rights against the right of set-off originating Lender in respect of its participating interest such Participation to be those set forth in the agreement executed by the originating Lender in favor of the Participant relating thereto) and all amounts owing under this Agreement to payable by the same extent Borrower hereunder shall be determined as if the amount of its participating interest were owing directly to it as a such Lender under this Agreementhad not sold such participation.
(de) Notwithstanding any other provision contained in this AgreementAgreement or any other Transaction Document to the contrary, any Lender may at any time create a security interest in, or pledge, assign all or any portion of its rights under and interest in this Agreement and any Note the Loans held by it in favor of as collateral security to any United States Federal Reserve Bank, the European Central Bank (if such Lender is incorporated in the jurisdiction which is a member of the European Union) or any other federal reserve or central bank in the jurisdiction of such Lender, provided that any payment in respect of such assigned Loans or Notes made by the Borrower to or for the account of the assigning or pledging Lender in accordance with Regulation A the terms of this Agreement shall satisfy the FRB or U.S. Treasury Regulation 31 CFR (S)203.14, and Borrower’s obligations hereunder in respect to such Federal Reserve Bank may enforce assigned Loans to the extent of such pledge or security interest in any manner permitted under applicable lawpayment. No such assignment shall release the assigning Lender from its obligations hereunder.
Appears in 1 contract
Assignments, Participations, etc. (a) Any Lender may, with the written consent of Culligan, the Administrative Agent, the Issuing Lender and the Swing Line Lender (which consents shall not be unreasonably withheld), may at any time assign and delegate to one or more Eligible Assignees (provided that no written consent of Culligan, the Administrative Agent, the Issuing Lender or the Swing Line Lender shall be required in connection with any assignment and delegation by a Lender to an Eligible Assignee that is an Affiliate of such Lender (so long as such assignment will not result in any increased costs to the Borrowers) or to another Lender) (each an "Assignee") all all, or any ratable part of all, of the Loans, the Commitment, the L/C Obligations Notes and the other interests, rights and obligations of such Lender hereunder. In the event of a partial assignment (other than to another Lender or an Affiliate of a Lender), such assignment shall be in a minimum Dollar Equivalent amount of U.S. not less than $5,000,000 or1,000,000 or such Lender's entire Proportionate Share, if lessin each case, the entire amount of the Loans, Commitment, L/C Obligations and other rights and obligations of such Lender hereunder; provided that (i) unless otherwise agreed in writing by the Borrowers and the Administrative Agent; provided, however, that the Borrowers and the Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (xi) five (5) Business Days' prior written notice of such assignment, together with payment instructions, addresses and related information with respect to the Assignee, shall have been given to Culligan the Borrowers and the Administrative Agent by such Lender and the Assignee; (yii) such Lender and the its Assignee shall have delivered to the Borrowers and the Administrative Agent an Assignment and Acceptance in the form of Exhibit H ("Assignment and Acceptance") ), for acceptance and for recording by the Agent in the Register, together with any Note or Notes subject to such assignment; and (ziii) such the assignor Lender or the Assignee shall have has paid to the Administrative Agent a processing fee in the amount of U.S. $3,000; 4,000, and (iiiv) concurrently the parties to each such assignment shall have agreed to reimburse the Agent for all fees, costs and expenses (including, without limitation, the reasonable fees and out-of-pocket expenses of counsel for the Agent) incurred by the Agent in connection with such assignment, the assignor Lender shall assign to the Assignee a proportionate share of its loans, commitment and other rights and obligations under the Long-Term Credit Agreement.
(b) From and after the date that the Administrative Agent notifies the assignor assigning Lender that it has received (and, to the extent required, provided its consent and received the consents of Culligan, the Issuing Lender and the Swing Line Lender with respect to) an executed Assignment and Acceptance and payment of the above-referenced processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it and obligations hereunder have been assumed by it pursuant to such Assignment and Acceptance, shall have the rights and obligations of a Lender under the Loan Transaction Documents, and (ii) the assignor Lender shall, to the extent that rights and obligations hereunder and under the other Loan Transaction Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under the Loan DocumentsTransaction Documents (and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's rights and obligations under this Agreement, such Lender shall cease to be a party hereto (but shall continue to be entitled to any Interest and other Obligations accrued for its account hereunder, not so assigned and not yet paid)).
(c) Within five (5) Business Days after its receipt of notice by the Agent that it has received an executed Assignment and Acceptance and payment of the processing fee, the Borrowers shall execute and deliver to the Agent, a new Note evidencing such Assignee's assigned Proportionate Share of the related Loans and, if the assignor Lender has retained a portion thereof, a replacement Note in the principal amount of the Proportionate Share of the Loans retained by the assignor Lender (such Note to be in exchange for, but not in payment of, the Note held by such Lender). Immediately upon each Assignee's making its processing fee payment under the Assignment and Acceptance, this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the adjustment of the Proportionate Share of the Loans.
(d) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the Assignee thereunder shall be deemed to confirm to and agree with each other and the other parties hereto as follows: (i) such assignor Lender warrants that it is the legal and beneficial owner of the interest being assigned thereby free and clear of any adverse claim and that the outstanding balances of its Loan, without giving effect to assignments thereof which have not become effective, are as set forth in such Assignment and Acceptance, (ii) except as set forth in (i) above, such assignor Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement, or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement, any other Transaction Document or any other instrument or document furnished pursuant hereto or the financial condition of any Credit Party or the performance or observance by any Credit Party of any of its obligations under this Agreement, any other Transaction Document or any other instrument or document furnished pursuant hereto; (iii) such Assignee represents and warrants that it is legally authorized to enter into such Assignment and Acceptance; (iv) such Assignee confirms that it has received a copy of this Agreement, together with copies of the most recent financial statements delivered pursuant to Section 6.07 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (v) such Assignee will independently and without reliance upon the Agent, such assignor Lender or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (vi) such Assignee appoints and authorizes the Agent to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated to the Agent by the terms hereof, together with such powers as are reasonably incidental thereto; and (vii) such Assignee agrees that it will perform in accordance with their terms all the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(e) Any Lender may at any time sell to one or more commercial banks or other Persons not Affiliates affiliates of Culligan a Credit Party (a "Participant") participating interests in any Loan, the Commitment of such Lender Loans and the other interests of such that Lender (the "originating Originating Lender") hereunder and under the other Loan Transaction Documents; provided, however, that (i) the originating Originating Lender's obligations under this Agreement shall remain unchanged, (ii) the originating Originating Lender shall remain solely responsible for the performance of such obligations, (iii) the Borrowers, the Issuing Lender, the Swing Line Lender Credit Parties and the Administrative Agent shall continue to deal solely and directly with the originating Originating Lender in connection with the originating Originating Lender's rights and obligations under this Agreement and the other Loan Transaction Documents, (iv) such Participant shall be entitled to the benefit of the provisions contained in Section 2.13 limited, as to each Participant, to the amount the selling Lender could claim and (ivv) no Lender shall transfer or grant any participating interest under which the Participant has shall have rights to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Transaction Documents other than those that pursuant to the terms of this Agreement require the consent of the affected Lender.
(f) Each Lender agrees to maintain the confidentiality of all information identified as "confidential" by the Borrowers and provided to it by the Borrowers, or by the Agent on the behalf of the Borrowers, in connection with this Agreement or any other Transaction Document, and neither it nor any of its Affiliates shall use any such information for any purpose or in any manner other than pursuant to the terms contemplated by this Agreement; except to the extent such amendmentinformation (i) was or becomes generally available to the public other than as a result of a disclosure by the Lender, consent or waiver would require unanimous consent (ii) was or becomes available on a non-confidential basis from a source other than a Credit Party or one of its affiliates; provided, however, that any Lender may disclose such information (A) at the request or pursuant to any requirement of any Governmental Authority to which the Lender is subject or in connection with an examination of such Lender by any such authority; (B) pursuant to subpoena or other court process; (C) when required to do so in accordance with the provisions of any applicable law or requirement of law; and (D) to such Lender's independent auditors and other professional advisors. Notwithstanding the foregoing, each Borrower authorizes each Lender to disclose to any Participant or Assignee and to any prospective Participant or Assignee, such financial and other information in such Lender's possession concerning a Borrower or the Guarantor which has been delivered to the Agent or the Lenders as described in the first proviso pursuant to Section 12.
1. In the case of any such participation, the Participant shall be entitled this Agreement or which has been delivered to the benefit Agent or the Lenders by a Borrower or the Guarantor in connection with the Lenders' credit evaluation of Sections 4.1a Borrower and/or the Guarantor prior to entering into this Agreement, 4.3, 4.4, 4.6 and 12.5 as though it were also provided that such participant or assignee (or prospective participant or assignee) agrees in writing to be bound by a Lender hereunder, and if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, the Participant shall be deemed to have the right of set-off in respect of its participating interest in amounts owing under this Agreement confidentiality agreement similar to the same extent as if the amount provisions of its participating interest were owing directly to it as a Lender under this AgreementSection 10.11(e).
(dg) Notwithstanding any other provision contained in this AgreementAgreement or any other Transaction Document to the contrary, any Lender may at any time create a security interest in, or pledge, assign all or any portion of its rights under and interest in this Agreement and any Note Proportionate Share of the Notes held by it in favor of to any Federal Reserve Bank in accordance with or the United States Treasury as collateral security pursuant to Regulation A of the FRB or U.S. Treasury Regulation 31 CFR (S)203.14, Board of Governors of the Federal Reserve System and any Operating Circular issued by such Federal Reserve Bank may enforce Bank, provided that each such pledge or security interest assignment shall be made in accordance with applicable law and no such assignment shall release a Lender from any manner permitted under applicable lawof its obligations hereunder.
Appears in 1 contract
Assignments, Participations, etc. (a) Any Lender may, with the written consent of Culligan, the Administrative Agent, the Issuing Lender and the Swing Line Lender (which consents shall not be unreasonably withheld)Bank, at any time may assign and delegate to one or more Eligible Assignees (provided that no written consent of Culligan, the Administrative Agent, the Issuing Lender or the Swing Line Lender shall be required in connection with any assignment and delegation by a Lender to an Eligible Assignee that is an Affiliate of such Lender (so long as such assignment will not result in any increased costs to the Borrowers) or to another Lender) (each an "“Assignee"”) all all, or any ratable part of all, of the Loans, the CommitmentBorrowing Base Line, the Collateralized L/C Line, the L/C Obligations and the other rights and obligations of such Lender Bank hereunder, in a minimum Dollar Equivalent amount of U.S. $5,000,000 or1,000,000.00; provided, if lesshowever, that the entire amount of the Loans, Commitment, L/C Obligations and other rights and obligations of such Lender hereunder; provided that (i) the Co-Borrowers and the Administrative Agent may continue to deal solely and directly with such Lender Bank in connection with the interest so assigned to an Assignee until (xi) written notice of such assignment, together with payment instructions, addresses and related information with respect to the Assignee, shall have been given to Culligan the Co-Borrowers and the Administrative Agent by such Lender Bank and the Assignee; (yii) such Lender Bank and the its Assignee shall have delivered to the Co-Borrowers and the Administrative Agent an Assignment and Acceptance in the form of Exhibit H ("“Assignment and Acceptance"”) in form attached hereto as Exhibit D, together with any Note or Notes subject to such assignment; and (ziii) such Lender the assignor Bank or the Assignee shall have has paid to the Administrative Agent a processing fee in the amount of U.S. $3,000; and (ii) concurrently with such assignment, the assignor Lender shall assign to the Assignee a proportionate share of its loans, commitment and other rights and obligations under the Long-Term Credit Agreement2,500.00.
(b) From and after the date that the Administrative Agent notifies the assignor Lender Bank that it has received (and, to the extent required, provided its consent and received the consents of Culligan, the Issuing Lender and the Swing Line Lender with respect to) an executed Assignment and Acceptance and payment of the above-referenced processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it and obligations hereunder have been assumed by it pursuant to such Assignment and Acceptance, shall have the rights and obligations of a Lender Bank under the Loan Documents, and (ii) the assignor Lender Bank shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under the Loan Documents.
(c) The Co-Borrowers shall execute and deliver to the Administrative Agent, new Notes evidencing such Assignee’s assigned Loans and Line Portion and, if the assignor Bank has retained a portion of its Loans and its Line Portion, replacement Notes in the principal amount of the Loans retained by the assignor Bank (such Notes to be in exchange for, but not in payment of, the Notes held by such Bank). Immediately upon each Assignee’s making its processing fee payment under the Assignment and Acceptance, this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Line Portion arising therefrom. The Line Portion allocated to each Assignee shall reduce such Line Portion of the assigning Bank pro tanto. Upon such Assignment, Administrative Agent is authorized to revise Schedule 2.01 and Schedule 11.02 to reflect the adjusted status of the Banks.
(d) Any Lender Bank may at any time sell to one or more commercial banks or other Persons not Affiliates of Culligan the Co-Borrowers (a "“Participant"”) participating interests in any LoanLoans, the Commitment Line Portion of such Lender that Bank and the other interests of such Lender that Bank (the "“originating Lender"Bank”) hereunder and under the other Loan Documents; provided, however, that (i) the originating Lender's Bank’s obligations under this Agreement shall remain unchanged, (ii) the originating Lender Bank shall remain solely responsible for the performance of such obligations, (iii) the Co-Borrowers, the Issuing Lender, the Swing Line Lender Bank and the Administrative Agent shall continue to deal solely and directly with the originating Lender Bank in connection with the originating Lender's Bank’s rights and obligations under this Agreement and the other Loan Documents, and (iv) no Lender Bank shall transfer or grant any participating interest under which the Participant has rights to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment, consent or waiver would require unanimous consent of the Lenders Banks as described in the first proviso to Section 12.
111.01. In the case of any such participation, the Participant shall be entitled to not have any rights under this Agreement, or any of the benefit of Sections 4.1, 4.3, 4.4, 4.6 and 12.5 as though it were also a Lender hereunderother Loan Documents, and all amounts payable by the Co-Borrowers hereunder shall be determined as if such Bank had not sold such participation; except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, the each Participant shall be deemed to have the right of set-off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender Bank under this Agreement.
(de) Each Bank agrees to take normal and reasonable precautions and exercise due care to maintain the confidentiality of all information identified as “confidential” or “secret” by the Co-Borrowers and provided to it by the Co-Borrowers or any Subsidiary, or by the Administrative Agent on a Co-Borrower’s or Subsidiary’s behalf, under this Agreement or any other Loan Document, and neither it nor any of its Affiliates shall use any such information other than in connection with or in enforcement of this Agreement and the other Loan Documents; except to the extent such information (i) was or becomes generally available to the public other than as a result of disclosure by the Bank, or (ii) was or becomes available on a non-confidential basis from a source other than the Co-Borrowers, provided that such source is not bound by a confidentiality agreement with, or under obligation of confidentiality, the Co-Borrowers known to the Bank; provided, however, that any Bank may disclose such information (A) at the request or pursuant to any requirement of any Governmental Authority to which the Bank is subject or in connection with an examination of such Bank by any such authority; (B) pursuant to subpoena or other court process; (C) when required to do so in accordance with the provisions of any applicable Requirement of Law; (D) to the extent reasonably required in connection with any litigation or proceeding to which the Administrative Agent, any Bank or their respective Affiliates may be party; (E) to the extent reasonably required in connection with the exercise of any remedy hereunder or under any other Loan Document; (F) to such Bank’s independent auditors and other professional advisors; (G) to any Affiliate of such Bank, or to any Participant or Assignee, actual or potential, provided that such Affiliate, Participant or Assignee agrees to keep such information confidential to the same extent required of the Banks hereunder, and (H) as to any Bank, as expressly permitted under the terms of any other document or agreement regarding confidentiality to which a Co-Borrower is party or is deemed party with such Bank.
(f) Notwithstanding any other provision in this Agreement, any Lender Bank may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement and any the Note held by it in favor of any Federal Reserve Bank in accordance with Regulation A of the FRB or U.S. Treasury Regulation 31 CFR (S)203.14C.F.R. § 203.14, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law.
(g) Notwithstanding anything to the contrary contained herein, if at any time the Administrative Agent assigns all of its Line Portion and Loans pursuant to subsection (b) above, the Administrative Agent shall, (i) upon 30 days’ notice to the Co-Borrowers and the Banks, resign as Issuing Bank. In the event of any such resignation as Issuing Bank, the Co-Borrowers shall be entitled to appoint from among the Banks a successor Issuing Bank hereunder; provided, however, that no failure by the Co-Borrowers to appoint any such successor shall affect the resignation of the Administrative Agent as Issuing Bank. Administrative Agent shall retain all the rights and obligations of the Issuing Bank hereunder with respect to all Letters of Credit outstanding as of the effective date of its resignation as Issuing Bank and all L/C Obligations with respect thereto (including the right to require the Banks to make Loans or fund participations in L/C Obligations pursuant to Section 3.03).
Appears in 1 contract
Samples: Credit Agreement (Avista Corp)
Assignments, Participations, etc. (a) Any Lender may, subject to the last sentence of this subsection 12.8(a), with the written consent of Culligan, the Administrative Agent, the Issuing Lender and the Swing Line Lender Agents (which consents shall not be unreasonably withheldwithheld or delayed) and, unless an Event of Default exists under subsection (a), (f) or (g) of Section 9.1 or any other Event of Default exists which has been continuing for 90 consecutive days, the Company (which consent of the Company shall not be unreasonably withheld or delayed), at any time assign and delegate to one or more Eligible Assignees (provided that no written consent of Culligan, the Administrative Agent, the Issuing Lender Company or the Swing Line Lender Agents shall be required in connection with any assignment and delegation by a Lender to an Eligible Assignee that is an Affiliate of such Lender (so long as such assignment will not result in any increased costs to the Borrowers) or to another Lender) (each an "Assignee") all all, or any ratable part of all, of the Loans, the Commitment, the L/C Obligations and the other rights and obligations of such Lender hereunder, in a minimum Dollar Equivalent amount of U.S. $5,000,000 10,000,000 (or, if less, the entire amount of the Loans, such Lender's Commitment, L/C Obligations and other rights and obligations of such Lender hereunder); provided that after giving effect to such assignment, the assigning Lender retains a Commitment of at least $10,000,000 (i) unless such Lender's Commitment is reduced to $0 in connection with such assignment); provided, further, that the Borrowers and the Administrative Agent Agents may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (xi) written notice of such assignment, together with payment instructions, addresses and related information with respect to the Assignee, shall have been given to Culligan the Company and the Administrative Agent Agents by such Lender and the Assignee; (yii) such Lender and the Assignee shall have delivered to the Borrowers Company and the Administrative Agent Agents an Assignment and Acceptance in the form of Exhibit H F ("Assignment and Acceptance") together with any Note or Notes subject to such assignment; assignment and (ziii) such the assignor Lender or the Assignee shall have paid to the Administrative Paying Agent a processing fee in the amount of U.S. $3,000; 3,500. So long as no Event of Default exists under subsection (a), (f) or (g) of Section 9.1 or 103 any other Event of Default exists which has been continuing for 90 consecutive days, upon disclosing any non-public information relating to the Company or any Subsidiary to any prospective assignee (and (ii) concurrently with at least three Business Days before the date any Lender gives notice of any assignment or delivers any Assignment and Acceptance referred to above), such assignment, the assignor Lender shall assign to notify the Assignee a proportionate share Company of its loans, commitment and other rights and intention to make an assignment (it being understood that failure of a Lender to comply with its obligations under the Long-Term Credit Agreementthis sentence shall not, in and of itself, constitute a reasonable basis to withhold consent to an assignment).
(b) From and after the date that the Administrative Paying Agent notifies the assignor Lender that it has received (and, to the extent requiredrequired by subsection 12.8(a), provided its consent the Administrative Agents have given their consent, and have received the consents of Culligan, the Issuing Lender and the Swing Line Lender Borrowers with respect to) an executed Assignment and Acceptance and payment of the above-referenced processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it and obligations hereunder have been assumed by it pursuant to such Assignment and Acceptance, shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assignor Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under the Loan Documents.
(c) Any Lender may may, subject to giving prior written notice to the Company, at any time sell to one or more commercial banks or other Persons not Affiliates of Culligan the Company (a "Participant") participating interests in any Loan, the Commitment of such Lender and the other interests of such Lender (the "originating Lender") hereunder and under the other Loan Documents; provided, however, that provided that
(i) the originating Lender's obligations under this Agreement shall remain unchanged, (ii) the originating Lender shall remain solely responsible for the performance of such obligations, (iii) the Borrowers, the Issuing Lender, the Swing Line Lender Borrowers and the Administrative Agent Agents shall continue to deal solely and directly with the originating Lender in connection with the originating Lender's rights and obligations under this Agreement and the other Loan Documents, and (iv) no Lender shall transfer or grant any participating interest under which the Participant has rights to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment, consent or waiver would require unanimous consent of the be required to be signed by all Lenders as described in the first proviso pursuant to Section 12.
1. In the case of any such participation, the Participant shall be entitled to the benefit of Sections 4.1, 4.3, 4.4, 4.6 4.4 and 12.5 as though it were also a Lender hereunder, and if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the 104 occurrence of an Event of Default, the Participant shall be deemed to have the right of set-off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement.
(d) Notwithstanding any other provision in this Agreement, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement and any Note held by it in favor of any Federal Reserve Bank in accordance with Regulation A of the FRB or U.S. Treasury Regulation 31 CFR (S)203.14ss.203.14, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law.
Appears in 1 contract
Assignments, Participations, etc. (a) Any Lender may, with the written consent of Culligan, the Administrative Agent, the Issuing Lender and the Bank, Swing Line Lender (and, so long as no Default or Event of Default has occurred and is continuing, the Company, which consents shall not be unreasonably withheld), at any time assign and delegate to one or more Eligible Assignees (provided that no written consent of Culligan, the Administrative Agent, the Issuing Lender or Bank, the Swing Line Lender or the Company shall be required in connection with any assignment and delegation by a Lender to an Eligible Assignee that is an Affiliate of such Lender (so long as such assignment will not result in any increased costs to the Borrowers) or to another Lender) (each an "Assignee") all of, or any part of of, the Loans, the CommitmentCommitments, the L/C Obligations and the other rights and obligations of such Lender hereunder, in a minimum aggregate Dollar Equivalent amount of U.S. $5,000,000 (or, if less, the entire amount of such Lender's Loans and Commitments, and such Loans and Commitments may consist of the LoansRevolving Loan Commitments, Commitmentthe Term Loan Commitments and the Sterling Acquisition Loan Commitments as determined by the assigning Lender) calculated by aggregating the Commitments, Loans and L/C Obligations and other rights and obligations of such Lender hereunderheld by an Eligible Assignee which are Affiliates; provided provided, however, that (i) the Borrowers each Borrower and the Administrative Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (xi) written notice of such assignment, together with payment instructions, addresses and related information with respect to the Assignee, shall have been given to Culligan each Borrower and the Administrative Agent by such Lender and the Assignee; (yii) such Lender and the its Assignee shall have delivered to the Borrowers each Borrower and the Administrative Agent an Assignment and Acceptance in the form of Exhibit H E attached hereto ("Assignment and Acceptance") together with any Note or Notes subject to such assignment; assignment and (ziii) such the assignor Lender or the Assignee shall have has paid to the Administrative Agent a processing fee in the amount of U.S. $3,000; and (ii) concurrently with such assignment, the assignor Lender shall assign to the Assignee a proportionate share of its loans, commitment and other rights and obligations under the Long-Term Credit Agreement3,500.
(b) From and after the date that the Administrative Agent notifies the assignor Lender that it has received (and, to the extent required, and provided its consent and received the consents of Culligan, the Issuing Lender and the Swing Line Lender with respect to) an executed Assignment and Acceptance and payment of the above-referenced processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it and obligations hereunder have been assumed by it pursuant to such Assignment and Acceptance, shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assignor Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under the Loan Documents.
Documents (c) Any Lender may at any time sell to one or more commercial banks or other Persons not Affiliates of Culligan (a "Participant") participating interests in any Loan, the Commitment of such Lender and the other interests of such Lender (the "originating Lender") hereunder and under the other Loan Documents; provided, however, that (i) the originating Lender's obligations under this Agreement shall remain unchanged, (ii) the originating Lender shall remain solely responsible for the performance of such obligations, (iii) the Borrowers, the Issuing Lender, the Swing Line Lender and the Administrative Agent shall continue to deal solely and directly with the originating Lender in connection with the originating Lender's rights and obligations under this Agreement and the other Loan Documents, and (iv) no Lender shall transfer or grant any participating interest under which the Participant has rights to approve any amendment to, or any consent or waiver than with respect to, this Agreement to any indemnification pursuant to Article IV or any other Loan Document, except to the extent such amendment, consent or waiver would require unanimous consent of the Lenders as described in the first proviso to Section 1212.05).
1. In the case of any such participation, the Participant shall be entitled to the benefit of Sections 4.1, 4.3, 4.4, 4.6 and 12.5 as though it were also a Lender hereunder, and if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, the Participant shall be deemed to have the right of set-off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement.
(d) Notwithstanding any other provision in this Agreement, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement and any Note held by it in favor of any Federal Reserve Bank in accordance with Regulation A of the FRB or U.S. Treasury Regulation 31 CFR (S)203.14, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law.
Appears in 1 contract
Samples: Credit Agreement (Macdermid Inc)
Assignments, Participations, etc. (a) Any Lender may, with the written consent of Culliganthe Accepting Lender, the Administrative Agent, the Issuing Lender and the Swing Line Lender (and the Agent, which consents shall not be unreasonably withheld), at any time assign and delegate to one or more Eligible Assignees Persons (provided that no written consent of Culliganthe Accepting Lender, the Administrative Agent, the Issuing Lender or the Swing Line Lender or the Agent shall be required in connection with any assignment and delegation by a Lender to an Eligible Assignee that is an Affiliate of such Lender (so long as such assignment will not result in any increased costs to the Borrowers) or to another Lender) (each an "Assignee") all all, or any ratable part of all, of the Loans, the Commitment, the L/C Obligations Commitment and the other rights and obligations of such Lender hereunder, in a minimum Dollar Equivalent amount of U.S. $5,000,000 10,000,000 (or, if less, the entire amount all of the Loans, Commitment, L/C Obligations and other such Lender's remaining rights and obligations hereunder); provided, however, that (x) no assignment and delegation may be made to any Person if, at the time of such assignment and delegation, the Company would be obligated to pay any greater amount under Article III to the Assignee than the Company is then obligated to pay to the assigning Lender hereunder; provided that under such Article (iand if any assignment is made in violation of the foregoing, the Company will not be required to pay the incremental amounts) and (y) the Borrowers Company, the Accepting Lender, the Swing Line Lender and the Administrative Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (xi) written notice of such assignment, together with payment instructions, addresses and related information with respect to the Assignee, shall have been given to Culligan the Company and the Administrative Agent by such Lender and the Assignee; (yii) such Lender and the its Assignee shall have delivered to the Borrowers Company and the Administrative Agent an Assignment and Acceptance in the form of Exhibit H G ("Assignment and Acceptance") together with any Note or Notes subject to such assignment; assignment and (ziii) such the assignor Lender or the Assignee shall have has paid to the Administrative Agent a processing fee in the amount of U.S. $3,000; and (ii) concurrently with such assignment, the assignor Lender shall assign to the Assignee a proportionate share of its loans, commitment and other rights and obligations under the Long-Term Credit Agreement2,500.
(b) From and after the date that the Administrative Agent notifies the assignor Lender that it has received (and, to the extent required, and provided its consent (and received the consents consent of Culligan, the Issuing Accepting Lender and the Swing Line Lender Lender) with respect to) to an executed Assignment and Acceptance and payment of the above-referenced processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it and obligations hereunder have been assumed by it pursuant to such Assignment and Acceptance, shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assignor Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under the Loan Documents.
(c) Any Lender may at any time sell to one or more commercial banks or other Persons not Affiliates of Culligan the Company (a "Participant") participating interests in any LoanLoans, the Commitment of such Lender and the other interests of such Lender (the "originating Lender") hereunder and under the other Loan Documents; provided, however, that (i) the originating Lender's obligations under this Agreement shall remain unchanged, (ii) the originating Lender shall remain solely responsible for the performance of such obligations, (iii) the Borrowers, the Issuing Lender, the Swing Line Lender and the Administrative Agent shall continue to deal solely and directly with the originating Lender in connection with the originating Lender's rights and obligations under this Agreement and the other Loan Documents, and (iv) no Lender shall transfer or grant any participating interest under which the Participant has rights to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment, consent or waiver would require unanimous consent of the Lenders as described in the first proviso to Section 12.originating
1. In the case of any such participation, the Participant shall be entitled to the benefit of Sections 4.13.1, 4.3, 4.4, 4.6 3.3 and 12.5 10.5 as though it were also a Lender hereunderhereunder (provided that no Participant shall receive any greater compensation pursuant to Article III than would have been paid to the participating Lender if no participation had been sold), and if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, the each Participant shall be deemed to have the right of set-off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement.
(d) Notwithstanding any other provision in this Agreement, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement and any Note held by it in favor of any Federal Reserve Bank in accordance with Regulation A of the FRB or U.S. Treasury Regulation 31 CFR (S)203.14ss.203.14, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law.
Appears in 1 contract
Samples: Credit Agreement (Truserv Corp)
Assignments, Participations, etc. (a) Any Lender Bank may, with the written consent of Culligan, the Administrative Agent, the Issuing Lender Agent and the Swing Line Lender (Borrower, which consents consent shall not be unreasonably withheld), at any time assign and delegate to one or more Eligible Assignees (provided that no written consent of Culligan, the Administrative Agent, the Issuing Lender Agent or the Swing Line Lender Borrower shall be required in connection with any assignment and delegation by a Lender Bank to an Eligible Assignee that is an Affiliate of such Lender (so long as such assignment will not result in any increased costs to the Borrowers) or to another LenderBank) (each an "AssigneeASSIGNEE") all all, or any ratable part of all, of the Loans, the Commitment, the L/C Obligations Commitments and the other rights and obligations of such Lender Bank hereunder, in a minimum Dollar Equivalent amount of U.S. $5,000,000 or2,500,000; provided, if lesshowever, that the entire amount of the Loans, Commitment, L/C Obligations and other rights and obligations of such Lender hereunder; provided that (i) the Borrowers Borrower and the Administrative Agent may continue to deal solely and directly with such Lender Bank in connection with the interest so assigned to an Assignee until (xi) written notice of such assignment, together with payment instructions, addresses and related information with respect to the Assignee, shall have been given to Culligan the Borrower and the Administrative Agent by such Lender Bank and the Assignee; (yii) such Lender Bank and the its Assignee shall have delivered to the Borrowers Borrower and the Administrative Agent an Assignment and Acceptance in the form of Exhibit H ("Assignment and Acceptance") acceptable to Agent together with any Note or Notes subject to such assignment; assignment and (ziii) such Lender the assignor Bank or the Assignee shall have has paid to the Administrative Agent a processing fee in the amount of U.S. $3,000; and (ii) concurrently with such assignment, the assignor Lender shall assign to the Assignee a proportionate share of its loans, commitment and other rights and obligations under the Long-Term Credit Agreement3,500.
(b) From and after the date that the Administrative Agent notifies the assignor Lender Bank that it has received (and, to the extent required, and provided its consent and received the consents of Culligan, the Issuing Lender and the Swing Line Lender with respect to) an executed Assignment and Acceptance and payment of the above-referenced processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it and obligations hereunder have been assumed by it pursuant to such Assignment and Acceptance, shall have the rights and obligations of a Lender Bank under the Loan Documents, and (ii) the assignor Lender Bank shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under the Loan Documents.
(c) Within five (5) Business Days after its receipt of notice by the Agent that it has received an executed Assignment and Acceptance and payment of the processing fee, the Borrower shall execute and deliver to the Agent, new Notes evidencing such Assignee's assigned Loans and Commitment and, if the assignor Bank has retained a portion of its Loans and its Commitment, replacement Notes in the principal amount of the Revolving Loans retained by the assignor Bank (such Notes to be in exchange for, but not in payment of, the Notes held by such Bank). Immediately upon each Assignee's making its processing fee payment under the Assignment and Acceptance, this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitments of the assigning Bank pro tanto.
(d) Any Lender Bank may at any time sell to one or more commercial banks or other Persons not Affiliates of Culligan the Borrower (a "ParticipantPARTICIPANT") participating interests in any LoanLoans, the Commitment of such Lender that Bank and the other interests of such Lender that Bank (the "originating LenderBank") hereunder and under the other Loan Documents; provided, however, that (i) the originating LenderBank's obligations under this Agreement shall remain unchanged, (ii) the originating Lender Bank shall remain solely responsible for the performance of such obligations, (iii) the Borrowers, the Issuing Lender, the Swing Line Lender Borrower and the Administrative Agent shall continue to deal solely and directly with the originating Lender in connection with the originating Lender's rights and obligations under this Agreement and the other Loan Documents, and (iv) no Lender shall transfer or grant any participating interest under which the Participant has rights to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment, consent or waiver would require unanimous consent of the Lenders as described in the first proviso to Section 12.
1. In the case of any such participation, the Participant shall be entitled to the benefit of Sections 4.1, 4.3, 4.4, 4.6 and 12.5 as though it were also a Lender hereunder, and if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, the Participant shall be deemed to have the right of set-off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement.
(d) Notwithstanding any other provision in this Agreement, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement and any Note held by it in favor of any Federal Reserve Bank in accordance with Regulation A of the FRB or U.S. Treasury Regulation 31 CFR (S)203.14, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law.shall
Appears in 1 contract
Samples: Credit Agreement (Software Net Corp)
Assignments, Participations, etc. (a1) Any Lender may, with With the prior written consent of Culligan, the Administrative Agent, the Issuing Lender Lenders (with respect to assignments of Revolving Commitments and the Swing Line Lender (which Revolving Credit Exposure only) and, but only if there has not occurred and is continuing an Event of Default or Potential Default, MAC, in each case such consents shall not to be unreasonably withheld)withheld or delayed, any Lender may at any time assign and delegate to one or more Eligible Assignees (provided that (i) no written consent of Culligan, MAC or the Administrative Agent, the Issuing Lender or the Swing Line Lender Agent shall be required in connection with any assignment and delegation by a Lender to an Eligible Assignee that is an Affiliate of such Lender (so long as such assignment will not result in any increased costs to the Borrowers) or to another LenderLender or its Affiliate or an Approved Fund, (ii) MAC shall be deemed to have consented to any such assignment and delegation unless it shall have objected thereto by written notice to the Administrative Agent within 10 Business Days after having received notice thereof and (iii) MAC’s refusal to consent to an assignment to an assignee on the basis that MAC would be obligated to pay to the assignee pursuant to Section 2.7 an amount in excess of the amount payable to the applicable assignor pursuant to Section 2.7 immediately prior to such assignment is deemed to be reasonable) (each an "“Assignee"”) all or any part of such Lender’s rights and obligations under this Agreement (including all or a portion of its Commitment and the Loans, Loans at the Commitment, the L/C Obligations time owing to it) and the other rights and obligations of Obligations held by such Lender hereunder, in a minimum Dollar Equivalent amount of U.S. $5,000,000 5 million (or (A) if such Assignee is another Lender or an Affiliate of a Lender, $1 million, or such lesser amount as agreed by the Administrative Agent; and (B) if such Lender’s Commitment (or, if lessafter the Revolving Commitments have terminated, Revolving Credit Exposure) is less than $5 million, one hundred percent (100%) thereof); provided, however, that MAC, the entire amount of Borrower, the LoansIssuing Lenders, Commitment, L/C Obligations and other rights and obligations of such Lender hereunder; provided that (i) the Borrowers Collateral Agent and the Administrative Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (xi) written notice of such assignment, together with payment instructions, addresses and related information with respect to the Assignee, shall have been given to Culligan the Borrower, the Issuing Lenders and the Administrative Agent by such Lender Xxxxxx and the AssigneeAssignee and such assignment shall have been recorded in the Register in accordance with Section 11.8(1)(B); (yii) such Lender and the its Assignee shall have delivered to the Borrowers Borrower and the Administrative Agent an Assignment and Acceptance in the form of Exhibit H ("Assignment and Acceptance") together with any Note or Notes subject to such assignmentAgreement; and (ziii) such Lender or the Assignee shall have has paid to the Administrative Agent a processing fee in the amount of U.S. $3,000; 3,500. Notwithstanding anything herein to the contrary, unless a Potential Default or an Event of Default has occurred and (ii) concurrently with such is continuing, no assignment, transfer or participation may be made to a Disqualified Institution absent the assignor prior written consent of MAC (which consent may be made in its sole and absolute discretion). The Administrative Agent and its Related Parties shall not be responsible or have any liability for, or have any duty to ascertain, inquire into, monitor or enforce compliance with the provisions hereof relating to Disqualified Institutions; provided that the list of Disqualified Institutions shall be posted for all Lenders or made available to any Lender shall assign to the Assignee a proportionate share of its loans, commitment and other rights and obligations under the Long-Term Credit Agreementupon request.
(bA) From and after the date that the Administrative Agent notifies the assignor Lender and the Borrower that it has received (and, to the extent required, provided its consent and received the consents of Culligan, the Issuing Lender and the Swing Line Lender with respect to) an executed Assignment and Acceptance Agreement and payment of the above-referenced processing fee, : (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned to it and obligations hereunder have been assumed by it pursuant to such Assignment and AcceptanceAcceptance Agreement, shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assignor Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and AcceptanceAcceptance Agreement, relinquish its rights and be released from its obligations under the Loan DocumentsDocuments (but shall be entitled to indemnification as otherwise provided in this Agreement with respect to any events occurring prior to the assignment) and (iii) this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments and Credit Exposures resulting therefrom.
(cB) Borrower, Administrative Agent and Lenders shall deem and treat the Persons listed as Lenders in the Register as the holders and owners of the corresponding Commitments and Loans listed therein for all purposes hereof, and no assignment or transfer of any such Commitment or Loan shall be effective, in each case, unless and until receipt by Administrative Agent of a fully executed Assignment and Acceptance Agreement effecting the assignment or transfer thereof, together with the required forms and certificates regarding tax matters and any fees payable in connection with such assignment, in each case, as provided in Section 11.8(1). Each assignment shall be recorded in the Register promptly following receipt by the Administrative Agent of the fully executed Assignment and Acceptance Agreement and all other necessary documents and approvals, prompt notice thereof shall be provided to Borrower and a copy of such Assignment and Acceptance Agreement shall be maintained, as applicable. Any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is listed in the Register as a Lender shall be conclusive and binding absent manifest error on any subsequent holder, assignee or transferee of the corresponding Commitments or Loans. The Administrative Agent will deliver to the Borrower a copy of the Register within five (5) Business Days after the Administrative Agent’s receipt of the Borrower’s written request therefor.
(2) Within five Business Days after its receipt of notice by the Administrative Agent that it has received an executed Assignment and Acceptance Agreement and payment of the processing fee (which notice shall also be sent by the Administrative Agent to each Lender), the Borrower shall, if requested by the Assignee, execute and deliver to the Administrative Agent, a new Note evidencing such Assignee’s Revolving Commitment.
(3) Any Lender may at any time time, without notice to or the consent of any other Person, sell to one or more commercial banks or other Persons not Affiliates of Culligan the Borrower (other than, unless a Potential Default or an Event of Default has occurred and is continuing, a Disqualified Institution without the prior written consent of MAC) (a "“Participant"”) participating interests in all or any Loan, the Commitment portion of such Lender its rights and obligations under this Agreement and the other interests Loan Documents (including all or a portion of such Lender its Commitments and the Loans owing to it) (the "originating “Originating Lender") hereunder and under the other Loan Documents”); provided, however, that (i) the originating Originating Lender's ’s obligations under this Agreement shall remain unchanged, (ii) the originating Originating Lender shall remain solely responsible for the performance of such obligations, and (iii) the BorrowersBorrower, the Issuing LenderLenders, the Swing Line Lender Collateral Agent and the Administrative Agent shall continue to deal solely and directly with the originating Originating Lender in connection with the originating Lender's Originating Xxxxxx’s rights and obligations under this Agreement and the other Loan Documents, and (iv) no Lender shall transfer or grant any participating interest under which the Participant has rights to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment, consent or waiver would require unanimous consent of the Lenders as described in the first proviso to Section 12.
1. In the case of any such participation, the Participant shall be entitled to the benefit of Sections 4.12.5, 4.32.6 and 2.7 (and subject to the burdens of Sections 2.8 and 11.8 above), 4.4and the benefits of Section 2.10 (subject to the requirements and limitations therein, 4.6 and 12.5 including the requirements under Section 2.10(6) (it being understood that the documentation required under Section 2.10(6) shall be delivered to the participating Lender)) as though it were also a Lender hereunderthereunder, and if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, the each Participant shall be deemed to have the right of set-off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement, and Section 11.10 of this Agreement shall apply to such Participant as if it were a Lender party hereto.
(d4) Notwithstanding any other provision contained in this AgreementAgreement or any other Loan Document to the contrary, any Lender may at any time create a security interest in, or pledge, pledge and/or assign all or any portion of its rights and obligations under and interest in this Agreement and any Note held by it in favor the other Loan Documents (including all or a portion of its Commitments and the Loans owing to it) to any Federal Reserve Bank in accordance with or other central bank or the United States Treasury as collateral security pursuant to Regulation A of the FRB or U.S. Treasury Regulation 31 CFR (S)203.14, Board of Governors of the Federal Reserve System and any Operating Circular issued by such Federal Reserve Bank may enforce or other central bank, provided that any payment in respect of such pledged and assigned interests made by the Borrower to or for the account of the assigning and/or pledging Lender in accordance with the terms of this Agreement shall satisfy the Borrower’s obligations hereunder in respect to such assigned interests to the extent of such payment. No such pledge or security assignment shall release the assigning Lender from its obligations hereunder.
(5) Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain at one of its offices a register on which it enters the names and addresses of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under this Agreement (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any manner permitted Commitments, Loans or its other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that such Commitment, Loan or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register pursuant to the terms hereof as the owner of such participation for all purposes of this Agreement, notwithstanding notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
(6) No Lender may assign or otherwise transfer any of its rights or obligations hereunder except (i) to an assignee in accordance with the provisions of paragraph (1) of this Section 11.8, (ii) by way of participation in accordance with the provisions of paragraphs (3) and (5) of this Section 11.8, or (iii) by way of assignment of a security interest subject to the restrictions of paragraph (4) of this Section 11.8 (and any other attempted assignment or transfer by any party hereto shall be null and void).
(7) A Participant shall not be entitled to receive any greater payment under Section 2.7 or 2.10 than the applicable lawLender would have been entitled to receive with respect to the participation sold to such Participant, unless the sale of the participation to such Participant is made with MAC’s prior written consent.
Appears in 1 contract
Samples: Credit Agreement (Macerich Co)
Assignments, Participations, etc. (a) Any Lender may, with the written consent of Culligan, the Administrative Agent, the Issuing Lender Agent and the Swing Line Lender (Borrower which consents shall not be unreasonably withheld), at any time assign and delegate to one or more Eligible Assignees (provided that no written consent of Culligan, the Administrative Agent, the Issuing Lender Agent or the Swing Line Lender Borrower shall be required in connection with any assignment and delegation by a Lender to an Eligible Assignee that is an Affiliate of such Lender (so long as such assignment will not result in any increased costs to the Borrowers) or to another Lender; provided, further, no Borrower consent shall be required if there is a continuing Default or an Event of Default) (each an "Assignee") all all, or any ratable part of all, of the Loans, the Commitment, the L/C Obligations Commitments and the other rights and obligations of such Lender hereunder, in a minimum Dollar Equivalent amount of U.S. $5,000,000 or5,000,000; provided, if lesshowever, that the entire amount of the Loans, Commitment, L/C Obligations and other rights and obligations of such Lender hereunder; provided that (i) the Borrowers Borrower and the Administrative Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (xi) written notice of such assignment, together with payment instructions, addresses and related information with respect to the Assignee, shall have been given to Culligan the Borrower and the Administrative Agent by such Lender and the Assignee; (yii) such Lender and the its Assignee shall have delivered to the Borrowers Borrower and the Administrative Agent an Assignment and Acceptance in the form of Exhibit H D ("Assignment and Acceptance") together with any Note or Notes subject to such assignment; assignment and (ziii) such the assignor Lender or the Assignee shall have has paid to the Administrative Agent a processing fee in the amount of U.S. $3,000; and (ii) concurrently with such assignment, the assignor Lender shall assign to the Assignee a proportionate share of its loans, commitment and other rights and obligations under the Long-Term Credit Agreement3,500.
(b) From and after the date that the Administrative Agent notifies the assignor Lender that the proposed assignee is an approved Eligible Assignee (to the extent approval is necessary), that it has received (and, to the extent required, and provided its consent and received the consents of Culligan, the Issuing Lender and the Swing Line Lender with respect to) an executed Assignment and Acceptance and payment of the above-referenced processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it and obligations hereunder have been assumed by it pursuant to such Assignment and Acceptance, shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assignor Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under the Loan Documents.
(c) Within five Business Days after its receipt of notice by the Agent that it has received an executed Assignment and Acceptance and payment of the processing 85 fee, the Borrower shall execute and deliver to the Agent, new Notes evidencing such Assignee's assigned Loans and Commitment and, if the assignor Lender has retained a portion of its Loans and its Commitment, replacement Notes in the principal amount of the Loans retained by the assignor Lender (such Notes to be in exchange for, but not in payment of, the Notes held by such Lender). Immediately upon each Assignee's making its processing fee payment under the Assignment and Acceptance, this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitments of the assigning Lender pro tanto.
(d) Any Lender may at any time sell to one or more commercial banks or other Persons not Affiliates of Culligan the Borrower (a "Participant") participating interests in any LoanLoans, the Commitment of such that Lender and the other interests of such that Lender (the "originating Lender") hereunder and under the other Loan Documents; provided, however, that (i) the originating Lender's obligations under this Agreement shall remain unchanged, (ii) the originating Lender shall remain solely responsible for the performance of such obligations, (iii) the Borrowers, the Issuing Lender, the Swing Line Lender Borrower and the Administrative Agent shall continue to deal solely and directly with the originating Lender in connection with the originating Lender's rights and obligations under this Agreement and the other Loan Documents, and (iv) no Lender shall transfer or grant any participating interest under which the Participant has rights to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment, consent or waiver would require unanimous consent of the Lenders as described in the first proviso to Section 12.
110.1, and (v) each such participation shall be in an aggregate principal amount of at least $3,000,000 (or such lesser amount as shall equal the portion of the originating Lender's Loans for which participating interests have not been sold hereunder). In the case of any such participation, the Participant shall be entitled to the benefit of Sections 4.13.1, 4.3, 4.4, 4.6 3.3 and 12.5 10.5 as though it were also a Lender hereunder, and if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, the each Participant shall be deemed to have the right of set-off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement.
(de) Notwithstanding any other provision in this Agreement, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement and any the Note held by it in favor of any Federal Reserve Bank in accordance with Regulation A of the FRB or U.S. Treasury Regulation 31 86 CFR (S)203.14Section 203.14, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law.
Appears in 1 contract
Samples: Credit Agreement (Amazon Com Inc)
Assignments, Participations, etc. (a1) Any Lender may, with With the prior written consent of Culligan, the Administrative AgentAgent and, the Issuing Lender but only if there has not occurred and the Swing Line Lender (which is continuing an Event of Default or Potential Default, MAC, such consents shall not to be unreasonably withheld)withheld or delayed, any Lender may at any time assign and delegate to one or more Eligible Assignees (provided that no written consent of Culligan, MAC or the Administrative Agent, the Issuing Lender or the Swing Line Lender Agent shall be required in connection with any assignment and delegation by a Lender to an Eligible Assignee that is an Affiliate of such Lender (so long as such assignment will not result in any increased costs to the Borrowers) or to another LenderLender or its Affiliate) (each an "Assignee") all or any part of such Lender's Percentage Share of the Loans, the Commitment, the L/C Obligations Term Loan and the other rights and obligations of Obligations held by such Lender hereunder, in a minimum Dollar Equivalent amount of U.S. $5,000,000 or1,000,000, which minimum amount may be an aggregated amount in the event of simultaneous assignments to or by two or more funds under common management (or if less, the entire amount such Lender's Percentage Share of the LoansTerm Loan is less than $1,000,000, Commitmentone hundred percent (100%) thereof); provided, L/C Obligations and other rights and obligations of such Lender hereunder; provided however, that (i) MAC, the Borrowers and the Administrative Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (xi) written notice of such assignment, together with payment instructions, addresses and related information with respect to the Assignee, shall have been given to Culligan the Borrowers and the Administrative Agent by such Lender and the Assignee; (yii) such Lender and the its Assignee shall have delivered to the Borrowers and the Administrative Agent an Assignment and Acceptance in the form of Exhibit H ("Assignment and Acceptance") together with any Note or Notes subject to such assignment; Agreement and (ziii) such Lender or the Assignee shall have has paid to the Administrative Agent a processing fee in the amount of U.S. $3,000; and (ii) concurrently with such assignment, the assignor Lender shall assign to the Assignee a proportionate share of its loans, commitment and other rights and obligations under the Long-Term Credit Agreement3500.
(bA) From and after the date that the Administrative Agent notifies the assignor Lender and the Borrowers that it has received (and, to the extent required, provided its consent and received the consents of Culligan, the Issuing Lender and the Swing Line Lender with respect to) an executed Assignment and Acceptance Agreement and payment of the above-referenced processing fee, : (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned to it and obligations hereunder have been assumed by it pursuant to such Assignment and AcceptanceAcceptance Agreement, shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assignor Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and AcceptanceAcceptance Agreement, relinquish its rights and be released from its obligations under the Loan DocumentsDocuments (but shall be entitled to indemnification as otherwise provided in this Agreement with respect to any events occurring prior to the assignment) and (iii) this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Percentage Shares resulting therefrom.
(c2) Within five Business Days after its receipt of notice by the Administrative Agent that it has received an executed Assignment and Acceptance Agreement and payment of the processing fee (which notice shall also be sent by the Administrative Agent to each Lender), the Borrowers shall, if requested by the Assignee, execute and deliver to the Administrative Agent, a new Note evidencing such Assignee's Percentage Share of the Term Loan.
(3) Any Lender may at any time sell to one or more commercial banks or other Persons not Affiliates of Culligan the Borrowers (a "Participant") participating interests in any Loan, the Commitment of such Lender Term Loan and the other interests of such that Lender (the "originating Lender") hereunder and under the other Loan Documents; provided, however, that (i) the originating Lender's obligations under this Agreement shall remain unchanged, (ii) the originating Lender shall remain solely responsible for the performance of such obligations, and (iii) the Borrowers, the Issuing Lender, the Swing Line Lender Borrowers and the Administrative Agent shall continue to deal solely and directly with the originating Lender in connection with the originating Lender's rights and obligations under this Agreement and the other Loan Documents, and (iv) no Lender shall transfer or grant any participating interest under which the Participant has rights to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment, consent or waiver would require unanimous consent of the Lenders as described in the first proviso to Section 12.
1. In the case of any such participation, the Participant shall be entitled to the benefit of Sections 4.12.5, 4.3, 4.4, 4.6 2.6 and 12.5 2.7 (and subject to the burdens of Sections 2.8 and 11.8 above) as though it were also a Lender hereunderthereunder, and if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, the each Participant shall be deemed to have the right of set-off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement, and Section 11.10 of this Agreement shall apply to such Participant as if it were a Lender party hereto.
(d4) Notwithstanding any other provision contained in this AgreementAgreement or any other Loan Document to the contrary, any Lender may at any time create a security interest in, or pledge, assign all or any portion of its rights under and interest in this Agreement and any Note Percentage Share of the Term Loan held by it in favor of to any Federal Reserve Bank in accordance with Lender or the United States Treasury as collateral security pursuant to Regulation A of the FRB or U.S. Treasury Regulation 31 CFR (S)203.14, Board of Governors of the Federal Reserve System and any Operating Circular issued by such Federal Reserve Bank may enforce Lender, provided that any payment in respect of such pledge assigned Percentage Share of the Term Loan made by the Borrowers to or security interest for the account of the assigning and/or pledging Lender in any manner permitted under applicable lawaccordance with the terms of this Agreement shall satisfy the Borrowers' obligations hereunder in respect to such assigned Percentage Share of the Term Loan to the extent of such payment. No such assignment shall release the assigning Lender from its obligations hereunder.
Appears in 1 contract
Samples: Credit Agreement (Macerich Co)
Assignments, Participations, etc. (a) Any Lender may, with the written consent of Culligan, the Administrative Agent, the Issuing Lender Agent and the Swing Line Lender (Borrower, which consents consent shall not be unreasonably withheldwithheld (except Borrower's consent shall not be required if (i) a Default or an Event of Default exists and is continuing, and (ii) the Eligible Assignee is not engaged in the securities brokerage business or the investment advisory business), at any time assign and delegate to one or more Eligible Assignees (provided that no written consent of Culligan, the Administrative Agent, the Issuing Lender or the Swing Line Lender Agent shall be required in connection with any assignment and delegation by a Lender to an Eligible Assignee that is an Affiliate of such Lender (so long as such assignment will not result in any increased costs to the Borrowers) or to another Lender) (each an "Assignee") all all, or any ratable part of all, of the Loans, the CommitmentCommitments, the L/C Obligations and the other rights and obligations of such Lender hereunder, in a minimum Dollar Equivalent amount of U.S. $5,000,000 or10,000,000; provided, if lesshowever, that the Borrower and, the entire amount of the Loans, Commitment, L/C Obligations and other rights and obligations of such Lender hereunder; provided that (i) the Borrowers and the Administrative Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (xi) written notice of such assignment, together with payment instructions, addresses and related information with respect to the Assignee, shall have been given to Culligan the Borrower and the Administrative Agent by such Lender and the Assignee; (yii) such Lender and the its Assignee shall have delivered to the Borrowers Borrower and the Administrative Agent an Assignment and Acceptance in the form of Exhibit H D ("Assignment and Acceptance") together with any Note or Notes subject to such assignment; assignment and (ziii) such the assignor Lender or the Assignee shall have has paid to the Administrative Agent a processing fee in the amount of U.S. $3,000; and (ii) concurrently with such assignment, the assignor Lender shall assign to the Assignee a proportionate share of its loans, commitment and other rights and obligations under the Long-Term Credit Agreement3,500.
(b) From and after the date that the Administrative Agent notifies the assignor Lender and the Borrower that it has received (and, to the extent required, provided its consent and received the consents of Culligan, the Issuing Lender and the Swing Line Lender Borrower and the Agent have provided their consent with respect to) an executed Assignment and Acceptance and payment of the above-referenced processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it and obligations hereunder have been assumed by it pursuant to such Assignment and Acceptance, shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assignor Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under the Loan Documents.
(c) Within five Business Days after its receipt of notice by the Agent that it has received an executed Assignment and Acceptance and payment of the processing fee, (and provided that it consents to such assignment in accordance with subsection 10.8(a)), the Borrower shall execute and deliver to the Agent, new Notes evidencing such Assignee's assigned Loans and Commitment and, if the assignor Lender has retained a portion of its Loans and its Commitment, replacement Notes in the principal amount of the Commitment retained by the assignor Lender (such Notes to be in exchange for, but not in payment of, the Notes held by such Lender). Immediately upon each Assignee's making its processing fee payment under the Assignment and Acceptance, this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitments of the assignor Lender pro tanto.
(d) Any Lender may at any time sell to one or more commercial banks or other Persons not Affiliates of Culligan the Borrower (a "Participant") participating interests in any LoanLoans, the Commitment of such that Lender and the other interests of such that Lender (the "originating Lender") hereunder and under the other Loan Documents; provided, however, that (i) the originating Lender's obligations under this Agreement shall remain unchanged, (ii) the originating Lender shall remain solely responsible for the performance of such obligations, (iii) the BorrowersBorrower, the Issuing Lender, the Swing Line Lender and the Administrative Agent shall continue to deal solely and directly with the originating Lender in connection with the originating Lender's rights and obligations under this Agreement and the other Loan Documents, and (iv) no Lender shall transfer or grant any participating interest under which the Participant has rights to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment, consent or waiver would require unanimous consent of the Lenders as described in the first proviso to Section 12.
1. In the case of any such participation, the Participant shall be entitled to the benefit of Sections 4.1, 4.3, 4.4, 4.6 and 12.5 as though it were also a Lender hereunder, and if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, the Participant shall be deemed to have the right of set-off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement.
(de) Notwithstanding any other provision in this Agreement, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement and any the Note held by it in favor of any Federal Reserve Bank in accordance with Regulation A of the FRB or U.S. Treasury Regulation 31 CFR (S)203.14ss.203.14, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law.
(f) Any Lender, (a "Granting Lender") may, with notice to the Agent, grant to a special purpose funding vehicle (an "SPC") the option to fund all or any part of any Loan that such Granting Lender would otherwise be obligated to fund pursuant to this Agreement. The funding of a Loan by an SPC hereunder shall utilize the Revolving Credit Commitment of the Granting Lender to the same extent, and as if, such Loan were funded by such Granting Lender. Each party hereto hereby agrees that no SPC shall be liable for any indemnity or payment under this Agreement for which a Lender would otherwise be liable for so long as, and to the extent, the Granting Lender provides such indemnity or makes such payment. Notwithstanding anything to the contrary contained in the foregoing or anywhere else in this Agreement, (i) nothing herein shall constitute a commitment by any SPC to fund any Loan, (ii) if an SPC elects not to exercise such option or otherwise fails to fund all or any part of such Loan, the Granting Lender shall be obligated to fund such Loan pursuant to the terms hereof, and (iii) the Borrower and Agent shall continue to deal exclusively with the Granting Lender and any funding by an SPC hereunder shall not constitute an assignment, assumption or participation of any rights or obligations of the Granting Lender. Any SPC may disclose on a confidential basis any non-public information relating to its funding of Loans to any rating agency, commercial paper dealer or provider of any surety or guarantee to such SPC, provided, as a condition precedent to such disclosure, (i) such agency, dealer or provider has delivered to such Granting Lender for the benefit of Borrower a written confidentiality agreement substantially similar to Section 10.9, and (ii) simultaneous with or prior to such disclosure, such Granting Lender has given written notice to Borrower of the agency, dealer or provider to which such disclosure is being made and the contents of such disclosure. This Section may not be amended without the prior written consent of each Granting Lender, all or any part of whose Loan is being funded by an SPC at the time of such amendment.
Appears in 1 contract
Assignments, Participations, etc. (a) Any Lender may, with the written consent of Culliganthe Borrower, the Administrative Agent, the Issuing Lender and the Swing Line Lender (which consents consent shall not be unreasonably withheldwithheld (provided that such consent shall not be required at any time that a Default or an Event of Default exists or in connection with any assignment by a Lender to another Lender or to an Eligible Assignee that is an Affiliate of a Lender or a Related Fund of a Lender), and the Agent, at any time assign and delegate to one or more Eligible Assignees (provided that no written such consent of Culligan, the Administrative Agent, the Issuing Lender Agent or the Swing Line Lender Borrower shall not be required in connection with any assignment and delegation by a Lender to an Eligible Assignee that is an Affiliate of such Lender (so long as such assignment will not result in any increased costs to the Borrowers) or to another Lender) (each an "“Assignee"”) all all, or any part of the Loans, the Commitment, the L/C Obligations Commitments and the other rights and obligations of such Lender hereunder, in a minimum Dollar Equivalent amount of U.S. $5,000,000 1,000,000 (or such lesser amount to which the Agent, in its sole discretion, may agree) or, if less, the entire Commitment or Loan(s) of such Lender; provided, however, that any assignment of the Swing Line Commitment and Swing Line Loans thereunder (x) shall require the prior written consent of Agent which may be granted or withheld in its sole discretion and (y) shall be in the full amount of the LoansSwing Line Commitment and outstanding Swing Line Loans at such time; provided, Commitmentfurther, L/C Obligations however, that in no event shall more than one Lender hold the Swing Line Commitment and other rights Swing Line Loans at any time; and obligations of such Lender hereunder; provided provided, further, however, in all instances, that (i) the Borrowers Borrower and the Administrative Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until until:
(xi) written notice of such assignment, together with payment instructions, addresses and related information with respect to the Assignee, shall have been given to Culligan the Borrower and the Administrative Agent by such Lender and the Assignee; ;
(yii) such Lender and the its Assignee shall have delivered to the Borrowers Borrower and the Administrative Agent an Assignment and Acceptance in the form of Exhibit H and substance reasonably satisfactory to Agent, such Lender and its Assignee ("an “Assignment and Acceptance"”); and
(iii) together with any Note or Notes subject to such assignment; and (z) such the assignor Lender or the Assignee shall have has paid to the Administrative Agent a processing fee in the amount of U.S. $3,000; and (ii) concurrently 3,500, provided no processing fee shall be required to be paid in connection with an assignment by a Lender to an Eligible Assignee that is an Affiliate of such assignmentLender. No less frequently than once every fiscal quarter, the assignor Agent shall notify Swing Line Lender shall assign of any assignments made to the Assignee an entity that was not previously a proportionate share of its loans, commitment and other rights and obligations under the Long-Term Credit AgreementLender.
(b) From Subject to the provisions of subsection 9.8(f) below, from and after the date that the Administrative Agent notifies the assignor Lender that it the Agent has received (and, to the extent required, and provided its consent and received the consents of Culligan, the Issuing Lender and the Swing Line Lender with respect to) to an executed Assignment and Acceptance and payment of the above-referenced processing fee, :
(i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it and obligations hereunder have been assumed by it pursuant to such Assignment and Acceptance, shall have the rights and obligations of a Lender under this Agreement and the other Loan Documents, and ; and
(ii) the assignor Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under the Loan Documents.
(c) Subject to the provisions of subsection 9.8(f) below, immediately upon the making of the processing fee payment to the Agent in respect of the Assignment and Acceptance, this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitment of the assigning Lender to the same extent.
(d) Any Lender may at any time sell to one or more commercial banks or other Persons not Affiliates of Culligan the Borrower (a "“Participant"”) participating interests in any LoanLoans, the Commitment of such that Lender and the other interests of such that Lender (the "originating “Originating Lender"”) hereunder and under the other Loan Documents; provided, however, that that:
(i) the originating Originating Lender's ’s obligations under this Agreement shall remain unchanged, ;
(ii) the originating Originating Lender shall remain solely responsible for the performance of such obligations, ;
(iii) the Borrowers, the Issuing Lender, the Swing Line Lender Borrower and the Administrative Agent shall continue to deal solely and directly with the originating Originating Lender in connection with the originating Originating Lender's ’s rights and obligations under this Agreement and the other Loan Documents, and ; and
(iv) no Lender shall transfer or grant any participating interest under which the Participant has shall have rights to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment, consent or waiver would require unanimous consent of the Lenders as described in the first proviso to Section 12.
1subsection 9.1(a). In the case of any such participation, the Participant shall be entitled to the benefit of Sections 4.1, 4.3, 4.4, 4.6 and 12.5 as though it were also a Lender hereunder, and if amounts outstanding under this Agreement are due and unpaid, or shall not have been declared or shall have become due and payable upon the occurrence of an Event of Default, the Participant shall be deemed to have the right of set-off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender any rights under this Agreement, or any of the other Loan Documents, and all amounts payable by the Borrower hereunder shall be determined as if such Lender had not sold such participation.
(de) Notwithstanding any other provision contained in this AgreementAgreement or any other Loan Document to the contrary, any Lender may at any time create a security interest in, or pledge, (i) assign all or any portion of its rights under and interest in this Agreement and any Note the Loans held by it in favor of to any Federal Reserve Bank in accordance with or the United States Treasury as collateral security pursuant to Regulation A of the FRB or U.S. Treasury Regulation 31 CFR (S)203.14, Federal Reserve Board and any Operating Circular issued by such Federal Reserve Bank may enforce Bank, (ii) in the case of any Lender that is a fund, trust or similar entity, assign or pledge all or any portion of the Loans held by it (and Notes evidencing such Loans) to the trustee under any indenture to which such Lender is a party in support of its obligations to the trustee for the benefit of the applicable trust beneficiaries, or (iii) pledge all or any portion of the Loans held by it (and Notes evidencing such Loans) to its lenders for collateral security interest purposes, provided that any payment in respect of such assigned Loans made by the Borrower to or for the account of the assigning or pledging Lender in accordance with the terms of this Agreement shall satisfy the Borrower’s obligations hereunder in respect to such assigned or pledged Loans to the extent of such payment. No such assignment or pledge shall release the assigning Lender from its obligations hereunder.
(f) The Agent shall, on behalf of the Borrower, maintain at its address referred to in Section 9.2 a copy of each Assignment and Acceptance delivered to it and a register (the “Register”) for the recordation of the names and addresses of the Lenders and the Commitment of, and principal amount of the Loans owing to, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of demonstrable error, and the Borrower, the Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Commitments, Loans and any manner permitted under applicable lawNotes evidencing such Loans recorded therein for all purposes of this Agreement. Any assignment of any Commitment and/or Loan, whether or not evidenced by a Note, shall be effective only upon appropriate entries with respect thereto being made in the Register. Any assignment or transfer of all or part of a Commitment and/or Loan evidenced by a Note shall be registered on the Register only upon a surrender or registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and Acceptance; thereupon one or more new Notes in the same aggregate principal amount shall be issued to the designated assignee and, if applicable, assignor, and the old Notes shall be returned by the Agent to the Borrower marked “cancelled”. The Register shall be available for inspection by the Borrower or any Lender (with respect to any entry relating to such Lender’s Commitments and Loans) at any reasonable time and from time to time upon reasonable prior notice.
Appears in 1 contract
Samples: Credit Agreement (Panther Expedited Services, Inc.)
Assignments, Participations, etc. (a) Any Lender may, with the written consent of Culligan, the Administrative Agent, the Issuing Lender and the Swing Line Lender (which consents shall not be unreasonably withheld), Bank may at any time assign and delegate to one or more Eligible Assignees (provided that no written consent of Culligan, the Administrative Agent, the Issuing Lender or the Swing Line Lender shall be required in connection with any assignment and delegation by a Lender to an Eligible Assignee that is an Affiliate of such Lender (so long as such assignment will not result in any increased costs to the Borrowers) or to another Lender) (each an "Assignee") all or any part of the Loans, the Commitment, the L/C Obligations and the other rights and obligations of such Lender hereunder, in a minimum Dollar Equivalent amount of U.S. $5,000,000 or, if less, the entire amount of the Loans, Commitment, L/C Obligations and other rights and obligations of such Lender hereunder; provided that (i) the Borrowers and the Administrative Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (x) written notice of such assignment, together with payment instructions, addresses and related information with respect to the Assignee, shall have been given to Culligan and the Administrative Agent by such Lender and the Assignee; (y) such Lender and the Assignee shall have delivered to the Borrowers and the Administrative Agent an Assignment and Acceptance in the form of Exhibit H ("Assignment and Acceptance") together with any Note or Notes subject to such assignment; and (z) such Lender or the Assignee shall have paid to the Administrative Agent a processing fee in the amount of U.S. $3,000; and (ii) concurrently with such assignment, the assignor Lender shall assign to the Assignee a proportionate share portion of its loans, commitment and other rights and obligations under the Long-Term Credit Agreement.
this Agreement (bincluding all or a portion of its Revolving Commitment, Incremental Revolving Commitment (if any) From and after the date that the Administrative Agent notifies the assignor Lender that it has received (and, to the extent required, provided its consent and received the consents of Culligan, the Issuing Lender and the Swing Line Lender with respect toLoans (including for purposes of this subsection (a), participations in Letter of Credit Obligations) an executed Assignment and Acceptance and payment of at the above-referenced processing fee, (i) the Assignee thereunder shall be a party hereto and, time owing to the extent that rights hereunder have been assigned to it and obligations hereunder have been assumed by it pursuant to such Assignment and Acceptance, shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assignor Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under the Loan Documents.
(c) Any Lender may at any time sell to one or more commercial banks or other Persons not Affiliates of Culligan (a "Participant") participating interests in any Loan, the Commitment of such Lender and the other interests of such Lender (the "originating Lender") hereunder and under the other Loan Documentsit); provided, however, that (i) except in the originating Lendercase of an assignment of the entire remaining amount of the assigning Bank's Commitment and the Loans at the time owing to it, after giving effect to any such assignment no Bank, Affiliate of a Bank or an Approved Fund with respect to a Bank shall hold Nexstar Loans and Loans hereunder aggregating less than $10,000, determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent or, if "Trade Date" is specified in the Assignment and Assumption, as of the Trade Date; (ii) each such assignment of Loans hereunder must be consummated simultaneously with an assignment among the same parties of a corresponding percentage of the corresponding Class of Nexstar Loans and/or commitments (as applicable) under the Nexstar Credit Agreement in accordance with the terms of the Nexstar Credit Agreement; (iii) each partial assignment shall be made as an assignment of a proportionate part of all the assigning Bank's rights and obligations under this Agreement with respect to the Loans or the Commitment assigned; (iv) any assignment of a Commitment must be approved by the Administrative Agent and the Issuing Bank unless the Person that is the proposed assignee is itself a Bank (whether or not the proposed assignee would otherwise qualify as an Eligible Assignee); and (v) the parties to each assignment shall execute and deliver to the Administrative Agent an Assignment and Assumption, together with a processing and recordation fee in the amount of $3,500; provided that with respect to any assignment between a Bank and an Affiliate of such Bank or an Approved Fund of such Bank, such processing and recordation fee shall be in the amount of $1,500. Only one such fee shall be payable with respect to the assignment of Loans hereunder and the simultaneous assignment among the same parties of a corresponding percentage of the corresponding Class of Nexstar Loans and/or commitments (as applicable) under the Nexstar Credit Agreement. The Borrower, the Issuing Bank and the Administrative Agent hereby grant the consent required by the immediately preceding sentence with respect to any assignment that any Bank may from time to time make to any Affiliate of a Bank or any Approved Fund or any assignment that any Bank may from time to make to any other Bank or any Affiliate of a Bank or any Approved Fund provided that the Borrower and the Administrative Agent are each given at least three (3) Business Days written notice prior to the effective date of such assignment. Subject to acceptance and recording thereof by the Administrative Agent pursuant to subsection (b) of this Section, from and after the effective date specified in each Assignment and Assumption, the Eligible Assignee thereunder shall be a party to this Agreement and, to the extent of the interest assigned by such Assignment and Assumption, have the rights and obligations of a Bank under this Agreement, and the assigning Bank 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 Bank's rights and obligations under this Agreement, such Bank shall cease to be a party hereto but shall continue to be entitled to the benefits of Sections 4.01, 4.03, 4.04, 12.04 and 12.05 with respect to facts and circumstances occurring prior to the effective date of such assignment). Upon request, the Borrower (at its expense) shall execute and deliver a Note to the assignee Bank. Any assignment or transfer by a Bank of rights or obligations under this Agreement that does not comply with this subsection shall be treated for purposes of this Agreement as a sale by such Bank of a participation in such rights and obligations in accordance with subsection (c) of this Section.
(b) The Administrative Agent, acting solely for this purpose as an agent of the Borrower, shall maintain at the Administrative Agent's Payment Office a copy of each Assignment and Assumption delivered to it and a register for the recordation of the names and addresses of the Banks, and the Commitments of, and principal amounts of the Loans and Letter of Credit Obligations owing to, each Bank pursuant to the terms hereof from time to time (the "Register"). The entries in the Register shall be conclusive, and the Borrower, the Administrative Agent and the Banks may treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Bank hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available for inspection by the Borrower and any Bank, at any reasonable time and from time to time upon reasonable prior notice.
(c) Any Bank may at any time, without the consent of, or notice to, the Borrower or the Administrative Agent, sell participations to any Person (other than a natural person or the Borrower or any of the Borrower's Affiliates or Subsidiaries) (each, a "Participant") in all or a portion of such Bank's rights and/or obligations under this Agreement (including all or a portion of its Commitments and/or the Loans (including such Bank's participations in Letter of Credit Obligations) owing to it); provided, however, that (i) such Bank's obligations under this Agreement shall remain unchanged, (ii) the originating Lender such Bank shall remain solely responsible to the other parties hereto for the performance of such obligations, obligations and (iii) the BorrowersBorrower, the Issuing Lender, the Swing Line Lender Bank and the Administrative Agent and the other Banks shall continue to deal solely and directly with the originating Lender such Bank in connection with the originating Lendersuch Bank's rights and obligations under this Agreement and the other Loan Documents, . Any agreement or instrument pursuant to which a Bank sells such a participation shall provide that such Bank shall retain the sole right to enforce this Agreement and (iv) no Lender shall transfer or grant any participating interest under which the Participant has rights to approve any amendment toamendment, or any consent modification or waiver with respect toof any provision of this Agreement; provided that such agreement or instrument may provide that such Bank will not, this Agreement or any other Loan Document, except to without the extent such amendment, consent or waiver would require unanimous consent of the Lenders as Participant, agree to any amendment, waiver or other modification described in clause (i), subsections (B), (D) and (I) of the first proviso to Section 12.
112.01 that directly affects such Participant. In the case Subject to subsection (e) of any such participationthis Section, the Borrower agrees that each Participant shall be entitled to the benefit benefits of Sections 4.14.01, 4.3, 4.4, 4.6 4.03 and 12.5 as though it were also a Lender hereunder, and if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, the Participant shall be deemed to have the right of set-off in respect of its participating interest in amounts owing under this Agreement 4.04 to the same extent as if it were a Bank and had acquired its interest by assignment pursuant to subsection (d) of this Section. To the amount extent permitted by law, each Participant also shall be entitled to the benefits of its participating interest Section 12.09 as though it were owing directly a Bank, provided such Participant agrees to be subject to Section 4.04(f) as though it as were a Lender under this AgreementBank.
(d) Notwithstanding A Participant shall not be entitled to receive any other greater payment under any provision in of this AgreementAgreement than the applicable Bank would have been entitled to receive with respect to the participation sold to such Participant, any Lender unless the sale of the participation to such Participant is made with the Borrower's prior written consent. A Participant which is organized under the laws of a jurisdiction outside the United States shall not be entitled to the benefits of Section 4.01 unless the Borrower is notified of the participation sold to such Participant and such Participant agrees, for the benefit of the Borrower, to comply with Section 4.04(f) as though it were a Bank.
(e) Any Bank may at any time create pledge or assign a security interest in, or pledge, in all or any portion of its rights under and interest in this Agreement and (including under its Note, if any) to secure obligations of such Bank, including any Note held by it in favor of any pledge or assignment to secure obligations to a Federal Reserve Bank in accordance with Regulation A of the FRB or U.S. Treasury Regulation 31 CFR (S)203.14, and such Federal Reserve Bank may enforce Bank; provided that no such pledge or security interest in assignment shall release such Bank from any manner permitted under applicable lawof its obligations hereunder or substitute any such pledgee or assignee for such Bank as a party hereto.
(f) As used herein, the following terms have the following meanings:
Appears in 1 contract
Assignments, Participations, etc. (a) Subject to Sections 12.08(b) and 12.08(e):
(i) Any Lender may, may with the written prior consent of Culliganthe Company, the Administrative Agent, and the Issuing Lender and the Swing Line Lender Bank (which consents will not be unreasonably withheld and which consent of the Company shall not be unreasonably withheld), required if a Default or Event of Default exists) at any time assign and delegate to one or more Eligible Assignees all or any fraction of its Commitment and outstanding Committed Loans in a minimum amount of $25,000,000 and in multiples of $1,000,000 in excess thereof or, if its Commitment is less than $25,000,000, in the amount of its Commitment.
(provided ii) Any Lender may without the prior consent of the Company assign to another Lender all or any fraction of its Commitment and outstanding Committed Loans in a minimum amount of $5,000,000 and in multiples of $1,000,000 in excess thereof or, if the Commitment is less than $5,000,000, in the amount of its Commitment.
(iii) Any Lender may at any time assign all or any portion of its rights under this Agreement and any note issued pursuant to Section 2.05 to a Federal Reserve Bank; provided, however, that no such assignment shall release any Lender from its obligations hereunder.
(iv) Any Lender, if so requested by the Company under Section 5.09, shall assign to another Eligible Assignee its entire Commitment and all outstanding Committed Loans.
(v) Except as provided in Section 12.08(a)(iii), no Lender may assign any Bid Loans made by it hereunder except to another Lender or to any other Person to which it is also assigning all or a fraction of its Commitment and outstanding Committed Loans pursuant to Section 12.08(a)(i).
(b) No assignment shall become effective, and the Company and the Agent shall be entitled to continue to deal solely and directly with each Lender in connection with the interests so assigned by such Lender to an Assignee, until (i) such Lender and such Assignee shall have executed an Assignment and Assumption Agreement substantially in the form of Exhibit 12.08(b) and written consent notice of Culligansuch assignment, payment instructions, addresses, and related information with respect to such Assignee shall have been given to the Administrative AgentCompany and the Agent by such Lender and such Assignee, in substantially the Issuing form of Attachment A to Exhibit 12.08 (a "Notice of Assignment"); (ii) a processing fee in the amount of $3,500 shall have been paid to the Agent by the assignor Lender or the Swing Line Assignee; and (iii) either (A) five Business Days shall have elapsed after receipt by the Agent of the items referred to in clauses (i) and (ii) or (B) if earlier, the Agent has notified the assignor Lender and the Assignee of its receipt of the items mentioned in clauses (i) and (ii) and that it has acknowledged the assignment by countersigning the Notice of Assignment.
(c) From and after the effective date of any assignment hereunder, (i) the Assignee thereunder shall be required in connection with any assignment deemed automatically to have become a party hereto and, to the extent that rights and delegation obligations hereunder have been assigned to such Assignee by the assignor Lender, shall have the rights and obligations of a Lender hereunder and under each other Loan Document, and (ii) the assignor Lender, to an Eligible Assignee the extent that is an Affiliate rights and obligations hereunder have been assigned by it to the Assignee, shall be released from its future obligations hereunder and under each other Loan Document.
(d) Subject to Section 12.08(e), any Lender may at any time sell to one or more financial institutions or other Persons (each of such Lender (so long as such assignment will not result Persons being herein called a "Participant") participating interests in any increased costs to the Borrowers) or to another Lender) (each an "Assignee") all or any part of the Loans, the Commitment, the L/C Obligations and the its Commitment or other rights and obligations of such Lender hereunder, in a minimum Dollar Equivalent amount of U.S. $5,000,000 or, if less, the entire amount of the Loans, Commitment, L/C Obligations and other rights and obligations interests of such Lender hereunder; provided that provided, however, that
(i) no participation contemplated in this Section 12.08(d) shall relieve such Lender from its Commitment or its other obligations hereunder or under any other Loan Document;
(ii) such Lender shall remain solely responsible for the Borrowers performance of its Commitment and such other obligations;
(iii) the Company, the Agent, and the Administrative Agent may Issuing Bank shall continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (x) written notice of such assignment, together with payment instructions, addresses and related information with respect to the Assignee, shall have been given to Culligan and the Administrative Agent by such Lender and the Assignee; (y) such Lender and the Assignee shall have delivered to the Borrowers and the Administrative Agent an Assignment and Acceptance in the form of Exhibit H ("Assignment and Acceptance") together with any Note or Notes subject to such assignment; and (z) such Lender or the Assignee shall have paid to the Administrative Agent a processing fee in the amount of U.S. $3,000; and (ii) concurrently with such assignment, the assignor Lender shall assign to the Assignee a proportionate share of its loans, commitment and other rights and obligations under the Long-Term Credit Agreement.
(b) From and after the date that the Administrative Agent notifies the assignor Lender that it has received (and, to the extent required, provided its consent and received the consents of Culligan, the Issuing Lender and the Swing Line Lender with respect to) an executed Assignment and Acceptance and payment of the above-referenced processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights hereunder have been assigned to it and obligations hereunder have been assumed by it pursuant to such Assignment and Acceptance, shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assignor Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under the Loan Documents.
(c) Any Lender may at any time sell to one or more commercial banks or other Persons not Affiliates of Culligan (a "Participant") participating interests in any Loan, the Commitment of such Lender and the other interests of such Lender (the "originating Lender") hereunder and under the other Loan Documents; provided, however, that (i) the originating Lender's obligations under this Agreement shall remain unchanged, (ii) the originating Lender shall remain solely responsible for the performance of such obligations, (iii) the Borrowers, the Issuing Lender, the Swing Line Lender and the Administrative Agent shall continue to deal solely and directly with the originating Lender in connection with the originating Lender's rights and obligations under this Agreement and the each other Loan Documents, and Document; and
(iv) no Participant, unless such Participant is an Affiliate of such Lender, shall be entitled to require such Lender shall transfer to take or grant refrain from taking any participating interest action hereunder or under which the Participant has rights to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent that such amendment, consent or waiver would require unanimous consent of the Lenders as described in the first proviso to Section 12.
1. In the case of any such participation, the Participant shall be entitled to the benefit of Sections 4.1, 4.3, 4.4, 4.6 and 12.5 as though it were also a Lender hereunder, and if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, the Participant shall be deemed to have the right of set-off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement.
(d) Notwithstanding any other provision in this Agreement, any Lender may at agree with any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement and any Note held by it in favor of any Federal Reserve Bank in accordance with Regulation A of the FRB or U.S. Treasury Regulation 31 CFR (S)203.14, and Participant that such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law.Lender
Appears in 1 contract
Assignments, Participations, etc. (a) Any Lender mayThe provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns permitted hereby, with except that the Borrowers may not assign or otherwise transfer any of their rights or obligations hereunder without the prior written consent of Culliganeach Lender (and any attempted assignment or transfer by the Borrowers without such consent shall be null and void). Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby, Participants to the extent provided in subsection (d) of this Section and, to the extent expressly contemplated hereby, the Administrative AgentIndemnitees) any legal or equitable right, the Issuing remedy or claim under or by reason of this Agreement.
(b) Any Lender and the Swing Line Lender (which consents shall not be unreasonably withheld), may at any time assign and delegate to one or more Eligible Assignees (provided that no written consent of Culligan, the Administrative Agent, the Issuing Lender or the Swing Line Lender shall be required in connection with any assignment and delegation by a Lender to an Eligible Assignee that is an Affiliate of such Lender (so long as such assignment will not result in any increased costs to the Borrowers) or to another Lender) (each an "Assignee") all or any part a portion of its rights and obligations under this Agreement (including all or a portion of its Commitment and the LoansLoans (including for purposes of this subsection (b), the Commitment, the participations in L/C Obligations and Obligations) at the other rights and obligations of such Lender hereunder, in a minimum Dollar Equivalent amount of U.S. $5,000,000 or, if less, the entire amount of the Loans, Commitment, L/C Obligations and other rights and obligations of such Lender hereundertime owing to it); provided that (i) except in the case of an assignment of the entire remaining amount of the assigning Lender’s Commitment and the Loans at the time owing to it or in the case of an assignment to a Lender or an Affiliate of a Lender or an Approved Fund with respect to a Lender, the aggregate amount of the Commitment (which for this purpose includes Loans outstanding thereunder) subject to each such assignment, determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent or, if “Trade Date” is specified in the Assignment and Assumption, as of the Trade Date, shall not be less than $5,000,000 unless each of the Administrative Agent and, so long as no Event of Default has occurred and is continuing, the Company otherwise consents (each such consent not to be unreasonably withheld or delayed), (ii) each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender’s rights and obligations under this Agreement with respect to the Loans or the Commitment assigned, and (iii) 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. Subject to acceptance and recording thereof by the Administrative Agent pursuant to subsection (c) of this Section, from and after the effective date specified in each Assignment and Assumption, the Eligible Assignee thereunder shall be a party to this Agreement 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 4.01, 4.02 and 4.05 with respect to facts and circumstances occurring prior to the effective date of such assignment). Upon request, the Borrowers (at their expense) shall execute and deliver new or replacement Notes to the assigning Lender and the assignee Lender. Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this subsection 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 subsection (d) of this Section.
(c) The Administrative Agent, acting solely for this purpose as an agent of the Borrowers, shall maintain at the Administrative Agent’s Office a copy of each Assignment and Assumption delivered to it and a register for the recordation of the names and addresses of the Lenders, and the Commitments of, and principal amounts of the Loans and L/C Obligations owing to, each Lender pursuant to the terms hereof from time to time (the “Register”). The entries in the Register shall be conclusive, and the Borrowers, the Administrative Agent and the Lenders may treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available for inspection by the Borrowers and any Lender, at any reasonable time and from time to time upon reasonable prior notice.
(d) Any Lender may at any time, without the consent of, or notice to, the Borrowers or the Administrative Agent, sell participations to any Person (other than a natural person or the Company or any of the Company’s Affiliates or Subsidiaries (each, a “Participant”) in all or a portion of such Lender’s rights and/or obligations under this Agreement (including all or a portion of its Commitment and/or the Loans (including such Lender’s participations in L/C Obligations) owing to it); provided that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and (iii) the Borrowers, the Administrative Agent may and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, waiver or other modification that would (i) postpone any date upon which any payment of money is scheduled to be paid to such Participant, (ii) reduce the principal, interest, fees or other amounts payable to such Participant, or (iii) release any Guarantor from the Master Guaranty and Intercreditor Agreement. Subject to subsection (e) of this Section, each Borrower agrees that each Participant shall be entitled to the benefits of Sections 4.01, 4.02 and 4.05 to the same extent as if it were a Lender and had acquired its interest so assigned by assignment pursuant to an Assignee until subsection (xb) written notice of this Section. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 11.09 as though it were a Lender, provided such assignment, together with Participant agrees to be subject to Section 2.13 as though it were a Lender.
(e) A Participant shall not be entitled to receive any greater payment instructions, addresses and related information under Section 4.01 or 4.02 than the applicable Lender would have been entitled to receive with respect to the Assigneeparticipation sold to such Participant, unless the sale of the participation to such Participant is made with the Company’s prior written consent. A Participant that would be a foreign Person if it were a Lender shall have been given to Culligan and the Administrative Agent by such Lender and the Assignee; (y) such Lender and the Assignee shall have delivered not be entitled to the Borrowers and benefits of Section 4.01 unless the Administrative Agent an Assignment and Acceptance in Company is notified of the form of Exhibit H ("Assignment and Acceptance") together with any Note or Notes subject participation sold to such assignment; Participant and (z) such Lender or Participant agrees, for the Assignee shall have paid benefit of the Borrowers, to the Administrative Agent comply with Section 4.01 as though it were a processing fee in the amount of U.S. $3,000; and (ii) concurrently with such assignment, the assignor Lender shall assign to the Assignee a proportionate share of its loans, commitment and other rights and obligations under the Long-Term Credit AgreementLender.
(b) From and after the date that the Administrative Agent notifies the assignor Lender that it has received (and, to the extent required, provided its consent and received the consents of Culligan, the Issuing Lender and the Swing Line Lender with respect to) an executed Assignment and Acceptance and payment of the above-referenced processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights hereunder have been assigned to it and obligations hereunder have been assumed by it pursuant to such Assignment and Acceptance, shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assignor Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under the Loan Documents.
(cf) Any Lender may at any time sell to one pledge or more commercial banks or other Persons not Affiliates of Culligan (a "Participant") participating interests in any Loan, the Commitment of such Lender and the other interests of such Lender (the "originating Lender") hereunder and under the other Loan Documents; provided, however, that (i) the originating Lender's obligations under this Agreement shall remain unchanged, (ii) the originating Lender shall remain solely responsible for the performance of such obligations, (iii) the Borrowers, the Issuing Lender, the Swing Line Lender and the Administrative Agent shall continue to deal solely and directly with the originating Lender in connection with the originating Lender's rights and obligations under this Agreement and the other Loan Documents, and (iv) no Lender shall transfer or grant any participating interest under which the Participant has rights to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment, consent or waiver would require unanimous consent of the Lenders as described in the first proviso to Section 12.
1. In the case of any such participation, the Participant shall be entitled to the benefit of Sections 4.1, 4.3, 4.4, 4.6 and 12.5 as though it were also a Lender hereunder, and if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, the Participant shall be deemed to have the right of set-off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement.
(d) Notwithstanding any other provision in this Agreement, any Lender may at any time create assign a security interest in, or pledge, in all or any portion of its rights under and interest in this Agreement and (including under its Notes, if any) to secure obligations of such Lender, including any Note held by it in favor of any pledge or assignment, to secure obligations to a Federal Reserve Bank in accordance with Regulation A of the FRB or U.S. Treasury Regulation 31 CFR (S)203.14, and such Federal Reserve Bank may enforce Bank; provided that no such pledge or security interest in assignment shall release such Lender from any manner permitted under applicable lawof its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
(g) As used herein, the following terms have the following meanings:
Appears in 1 contract
Assignments, Participations, etc. (a) Any Lender may, with the written consent of Culliganthe Company (at all times other than during the existence of an Event of Default), the Administrative Agent, the Issuing Lender and the Swing Line Lender (Swingline Lender, which consents shall not be unreasonably withheld)withheld or delayed, at any time assign and delegate to one or more Eligible Assignees (provided that no written consent of Culliganthe Company, the Administrative Agent, the Issuing Lender or the Swing Line Swingline Lender shall be required in connection with any assignment and delegation by a Lender to an a Person described in clause (iii) of the definition of Eligible Assignee that is an Affiliate of such Lender (so long as such assignment will not result in any increased costs to the Borrowers) or to another LenderAssignee) (each each, an "Assignee") all all, or any a ratable part of all, of the Loans, the CommitmentCommitments, the L/C Obligations and the other rights and obligations of such Lender hereunder, in a minimum Dollar Equivalent amount of U.S. $5,000,000 (or, if less, the entire amount all of the Loans, Commitment, L/C Obligations and other such Lender's remaining rights and obligations of such Lender hereunder); provided that (iA) the Borrowers Company, the Administrative Agent, the Issuing Lender and the Administrative Agent Swingline Lender may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (xi) written notice of such assignment, together with payment instructions, addresses and related information with respect to the Assignee, Assignee shall have been given to Culligan the Company and the Administrative Agent by such Lender and the Assignee; , (yii) such Lender and the Assignee shall have delivered to the Borrowers Company and the Administrative Agent an Assignment and Acceptance in the form of Exhibit H L (an "Assignment and Acceptance") together with any Note or Notes subject to such assignment; assignment and (ziii) such the assignor Lender or the Assignee shall have paid to the Administrative Agent a processing fee in the amount of U.S. $3,000; 3,500 and (iiB) concurrently the Company shall not, as a result of any assignment by any Lender to any of such Lender's Affiliates, incur any increased liability for Taxes, Other Taxes or Further Taxes pursuant to Section 4.1. The Company designates the Administrative Agent as its agent for maintaining a book entry record of ownership identifying the Lenders and the amount of the respective Loans and Notes which they own. The foregoing provisions are intended to comply with the registration requirements in Treasury Regulation Section 5f.103-1 so that the Loans and Notes are considered to be in "registered form" pursuant to such assignment, the assignor Lender shall assign to the Assignee a proportionate share of its loans, commitment and other rights and obligations under the Long-Term Credit Agreementregulation.
(b) From and after the date that the Administrative Agent notifies the assignor Lender that it has received (and, to the extent required, provided its consent consent, and received the consents of Culliganthe Swingline Lender, the Issuing Lender and (if applicable) the Swing Line Lender Company, with respect to) to an executed Assignment and Acceptance and payment of the above-referenced processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it and obligations hereunder have been assumed by it pursuant to such Assignment and Acceptance, shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assignor Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under the Loan Documents.
(c) Any Lender may at any time sell to one or more commercial banks or other Persons not Affiliates of Culligan the Company (a "Participant") participating interests in any Loan, the Commitment Commitments of such Lender and the other interests of such Lender (the "originating Lender") hereunder and under the other Loan Documents; provided, however, that (i) the originating Lender's obligations under this Agreement shall remain unchanged, (ii) the originating Lender shall remain solely responsible for the performance of such obligations, (iii) the BorrowersCompany, the Swingline Lender, the Issuing Lender, the Swing Line Lender and the Administrative Agent shall continue to deal solely and directly with the originating Lender in connection with the originating Lender's rights and obligations under this Agreement and the other Loan Documents, Documents and (iv) no Lender shall transfer or grant any participating interest under which the Participant has rights to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment, consent or waiver would require unanimous consent of the Lenders or the consent of a particular Lender, in each case as described in the first proviso to Section 1211.
1. In the case of any such participation, the Participant shall be entitled to the benefit of Sections 4.1, 4.3, 4.4, 4.6 4.3 and 12.5 11.5 as though it were also a Lender hereunderhereunder (provided, with respect to Sections 4.1 and 4.3, the Company shall not be required to pay any amount which it would not have been required to pay if no participating interest had been sold), and if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, the Participant shall be deemed to have the right of set-off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement. Each Lender may furnish any information concerning the Company and its Subsidiaries in the possession of such Lender from time to time to participants and prospective participants and may furnish information in response to credit inquiries consistent with general banking practice. Each Lender which sells a participation will maintain a book entry record of ownership identifying the Participant(s) and the amount of such participation(s) owned by such Participant(s). Such book entry record of ownership shall be maintained by the Lender as agent for the Company and the Administrative Agent. This provision is intended to comply with the registration requirements in Treasury Regulation Section 5f.103-1 so that the Loans and Notes are considered to be in "registered form" pursuant to such regulation.
(d) Notwithstanding any other provision in of this Agreement, any Lender may at any time create a security interest in, or pledge, pledge all or any portion of of, its rights under and interest in this Agreement and any Note held by it in favor of any Federal Reserve Bank in accordance with Regulation A of the FRB or U.S. Treasury Regulation 31 CFR (S)203.14ss.203.14, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law.
Appears in 1 contract
Samples: Credit Agreement (Rayovac Corp)
Assignments, Participations, etc. (a) Any Lender may, with the written consent of Culligan, the Company at all times other than during the existence of an Event of Default and with the written consents of the Administrative AgentAgent and, in case of an assignment of a Revolving Commitment or L/C Obligations, the Issuing Lender and the Swing Line Lender (Swingline Lender, which consents shall not be unreasonably withheld)withheld or delayed, at any time assign and delegate to one or more Eligible Assignees (provided that no written consent of Culliganthe Company, the Administrative Agent, the Issuing Lender or the Swing Line Swingline Lender shall be required in connection with any assignment and delegation by a Lender to an Eligible Assignee that is an Affiliate of such Lender a Person described in clause (so long as such assignment will not result in any increased costs to the Borrowersii), (iii) or to another Lender(iv) of the definition of Eligible Assignee) (each each, an "Assignee") all all, or any part part, of the Loans, the Revolving Commitment, the L/C Obligations and the other rights and obligations of such Lender hereunder, in a minimum Dollar Equivalent amount of U.S. $5,000,000 (or, if less, the entire amount all of the Loans, Commitment, L/C Obligations and other such Lender's -134- 142 remaining rights and obligations hereunder or all of such Lender hereunder; provided that (iLender's rights and obligations with respect to Revolving Commitment and Revolving Loans, Term A Loans or Term B Loans) or such lesser amount as may be approved by the Borrowers Company and the Administrative Agent (provided that such minimum amount shall not apply to assignments by a Lender to Persons described in clause (ii), (iii) or (iv) of the definition of Eligible Assignee); provided, however, that (A) the Company, the Administrative Agent, the Issuing Lender and the Swingline Lender may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (xi) written notice of such assignment, together with payment instructions, addresses and related information with respect to the Assignee, Assignee shall have been given to Culligan the Company and the Administrative Agent by such Lender and the Assignee; , (yii) such Lender and the Assignee shall have delivered to the Borrowers Company and the Administrative Agent an Assignment and Acceptance in the form of Exhibit H K (an "Assignment and Acceptance") together with any Note or Notes subject to such assignment; assignment and (ziii) such the assignor Lender or the Assignee shall have has paid to the Administrative Agent a processing fee in the amount of U.S. $3,000; 3,500 and (iiB) concurrently with such the Company shall not, as a result of any assignment, delegation or participation by any Lender, incur any increased liability for Taxes, Other Taxes or Further Taxes pursuant to Section 4.1. The Company designates the assignor Lender shall assign Administrative Agent as its agent for maintaining a book entry record of ownership identifying the Lenders, their respective addresses and the amount of the respective Loans and Notes which they own. The foregoing provisions are intended to comply with the Assignee a proportionate share of its loans, commitment registration requirements in Treasury Regulation Section 5f.103-1 so that the Loans and other rights and obligations under the Long-Term Credit AgreementNotes are considered to be in "registered form" pursuant to such regulation.
(b) From and after the date that the Administrative Agent notifies the assignor Lender that it has received (and, to the extent required, provided its consent consent, and received the consents of Culliganthe Swingline Lender, the Issuing Lender and (if applicable) the Swing Line Lender Company, with respect to) to an executed Assignment and Acceptance and payment of the above-referenced processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it and obligations hereunder have been assumed by it pursuant to such Assignment and Acceptance, shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assignor Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under the Loan Documents.
(c) Any Lender may at any time sell to one or more commercial banks or other Persons not Affiliates of Culligan the Company (a "Participant") participating interests in any Loan, the Revolving Commitment of such Lender and the other interests of such Lender (the "originating Lender") hereunder and under the other Loan Documents; provided, however, that (i) the originating Lender's obligations under this Agreement shall remain unchanged, (ii) the originating Lender shall remain solely responsible for the performance of such obligations, (iii) the Borrowers, the Issuing Lender, the Swing Line Lender and the Administrative Agent shall continue to deal solely and directly with the originating Lender in connection with the originating Lender's rights and obligations under this Agreement and the other Loan Documents, and (iv) no Lender shall transfer or grant any participating interest under which the Participant has rights to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment, consent or waiver would require unanimous consent of the Lenders as described in the first proviso to Section 12.of
1. In the case of any such participation, the Participant shall be entitled to the benefit of Sections 4.1, 4.3, 4.4, 4.6 4.3 and 12.5 11.5 as though it were also a Lender hereunderhereunder (provided, with respect to Sections 4.1 and 4.3, the Company shall not be required to pay any amount which it would not have been required to pay if no participating interest had been sold), and if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, the Participant shall be deemed to have the right of set-off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement. Each Lender which sells a participation will maintain a book entry record of ownership identifying the Participant(s) and the amount of such participation(s) owned by such Participant(s). Such book entry record of ownership shall be maintained by the Lender as agent for the Company and the Administrative Agent. This provision is intended to comply with the registration requirements in Treasury Regulation Section 5f.103-1 so that the Loans and Notes are considered to be in "registered form" pursuant to such regulation. Each Lender may furnish any information concerning the Company and its Subsidiaries in the possession of such Lender from time to time to participants and prospective participants and may furnish information in response to credit inquiries consistent with general banking practice.
(d) Notwithstanding any other provision in this Agreement, (i) any Lender may at any time assign all or any portion of its rights under and interest in this Agreement and any Note held by it to any Affiliate of such Lender that is an "Eligible Assignee" or create a security interest in, or pledge, pledge all or any portion of its rights under and interest in this Agreement and any Note held by it in favor of any Federal Reserve Bank in accordance with Regulation A of the FRB or U.S. Treasury Regulation 31 CFR (S)203.14Section 203.14, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable lawlaw and (ii) any Lender which is a fund may, with the consent of the Company, the Administrative Agent, and in the case of an assignment of a Revolving Commitment or L/C Obligations, the Issuing Lender and the Swingline Lender, pledge all or any portion of its Loans and Notes to its trustee in support of its obligations to its trustee.
Appears in 1 contract
Assignments, Participations, etc. (a) Any Lender Bank may, with the written consent of Culliganthe Agent and with the written consent of Xxxxxxxxx at all times other than during the existence of an Event of Default, the Administrative Agentwhich consent of Xxxxxxxxx, the Issuing Lender and the Swing Line Lender (which consents if required, shall not be unreasonably withheld), at any time assign and delegate to one or more Eligible Assignees (provided that no written consent of Culligan, the Administrative Agent, the Issuing Lender Xxxxxxxxx or the Swing Line Lender Agent shall be required in connection with any assignment and delegation by a Lender Bank to an Eligible Assignee that is an Affiliate of such Lender (so long as such assignment will not result in any increased costs to the Borrowers) or to another LenderBank) (each an "Assignee") all all, or any ratable part of all, of the Loans, the Commitment, the L/C Obligations Commitments and the other rights and obligations of such Lender Bank hereunder, in a minimum Dollar Equivalent amount of U.S. $5,000,000 or3,000,000; provided, if lesshowever, that the entire amount of the Loans, Commitment, L/C Obligations and other rights and obligations of such Lender hereunder; provided that (i) the Borrowers Companies and the Administrative Agent may continue to deal solely and directly with such Lender Bank in connection with the interest so assigned to an Assignee until (xi) written notice of such assignment, together with payment instructions, addresses and related information with respect to the Assignee, shall have been given to Culligan Xxxxxxxxx and the Administrative Agent by such Lender Bank and the Assignee; (yii) such Lender Bank and the its Assignee shall have delivered to the Borrowers Xxxxxxxxx and the Administrative Agent an Assignment and Acceptance in the form of Exhibit H E ("Assignment and Acceptance") together with any Note or Notes subject to such assignment; assignment and (ziii) such Lender the assignor Bank or the Assignee shall have has paid to the Administrative Agent a processing fee in the amount of U.S. $3,000; 3,500. If the consent of the Agent and (ii) concurrently with of Xxxxxxxxx shall be required for any such assignment, the assignor Lender Bank proposing to make such assignment shall assign to give the Assignee a proportionate share Agent and Xxxxxxxxx no less than 20 calendar days notice of its loans, commitment and other rights and obligations under the Long-Term Credit Agreementsuch requested consent.
(b) From and after the date that the Administrative Agent notifies the assignor Lender Bank that it has received (and, to the extent required, and provided its consent and received the consents of Culligan, the Issuing Lender and the Swing Line Lender with respect to) an executed Assignment and Acceptance and payment of the above-above- referenced processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it and obligations hereunder have been assumed by it pursuant to such Assignment and Acceptance, shall have the rights and obligations of a Lender Bank under the Loan Documents, and (ii) the assignor Lender Bank shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under the Loan Documents.
(c) Within five Business Days after its receipt of notice by the Agent that it has received an executed Assignment and Acceptance and payment of the processing fee and requesting new Notes (and provided that it consents to such assignment in accordance with Section 11.08(a)), the Companies shall execute and deliver to the Agent, new Notes evidencing such Assignee's assigned Loans and Commitment and, if the assignor Bank has retained a portion of its Loans and its Commitment, replacement Notes in the principal amount of the Loans retained by the assignor Bank (such Notes to be in exchange for, but not in payment of, the Notes held by such Bank). Immediately upon each Assignee's making its processing fee payment under the Assignment and Acceptance, this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitments of the assigning Bank pro tanto.
(d) Any Lender may Bank may, with the written consent of Xxxxxxxxx at all times other than during the existence of an Event of Default, which consent of Xxxxxxxxx, if required, shall not be unreasonably withheld, at any time sell to one or more commercial banks or other Persons not Affiliates of Culligan the Companies (a "Participant") participating interests in any LoanLoans, the Commitment of such Lender that Bank and the other interests of such Lender that Bank (the "originating LenderBank") hereunder and under the other Loan Documents; provided, however, that (i) the originating LenderBank's obligations under this Agreement shall remain unchanged, (ii) the originating Lender Bank shall remain solely responsible for the performance of such obligations, (iii) the Borrowers, the Issuing Lender, the Swing Line Lender Companies and the Administrative Agent shall continue to deal solely and directly with the originating Lender Bank in connection with the originating LenderBank's rights and obligations under this Agreement and the other Loan Documents, and (iv) no Lender Bank shall transfer or grant any participating interest under which the Participant has rights to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment, consent or waiver would require unanimous consent of the Lenders Banks as described in pursuant to subsections (a), (b) or (c) of the first proviso to Section 12.
111.01, in which event such Participant shall (if agreed by the originating Bank) be entitled to vote with respect to such amendment, consent or waiver. In the case of any such participation, the Participant shall be entitled to the benefit of Sections 4.14.01, 4.3, 4.4, 4.6 4.03 and 12.5 11.05 as though it were also a Lender Bank hereunder, and if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, the each Participant shall be deemed to have the right of set-off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender Bank under this Agreement. If the consent of the Xxxxxxxxx shall be required for any such participation, the Bank proposing to make such participation shall give the Agent and Xxxxxxxxx no less than 20 calendar days notice of such requested consent.
(de) Notwithstanding any other provision in this Agreement, any Lender Bank may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement and any the Note held by it in favor of any Federal Reserve Bank in accordance with Regulation A of the FRB or U.S. Treasury Regulation 31 CFR (S)203.14SECTION203.14, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law.
Appears in 1 contract
Assignments, Participations, etc. (a1) Any Lender maymay at any time, with the written consent of Culliganthe Agent and, but only so long as there does not exist an Event of Default, the Administrative Agent, the Issuing Lender and the Swing Line Lender Company (which consents consent shall not be unreasonably withheldwithheld by the Company), at any time assign and delegate to one or more Eligible Assignees (provided that no written consent of Culligan, the Administrative Agent, the Issuing Lender or the Swing Line Lender shall be required in connection with any assignment and delegation by a Lender to an Eligible Assignee that is an Affiliate of such Lender (so long as such assignment will not result in any increased costs to the Borrowers) or to another Lender) financial institutions (each an "“Assignee"”) all all, or any ratable part of all, of the Loans, the Commitment, the L/C Obligations Loans and the other rights and obligations of such Lender hereunder, hereunder in a minimum Dollar Equivalent amount of U.S. $5,000,000 or4,000.000.00; provided, if lesshowever, that the entire amount of the Loans, Commitment, L/C Obligations and other rights and obligations of such Lender hereunder; provided that (i) the Borrowers Company and the Administrative Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (xi) written notice of such assignment, together with payment instructions, addresses and related information with respect to the Assignee, shall have been given to Culligan the Company and the Administrative Agent by such Lender and the Assignee; (yii) such Lender and the its Assignee shall have delivered to the Borrowers Company and the Administrative Agent an Assignment and Acceptance in the form of Exhibit H ("Assignment and Acceptance") together with any Note or Notes subject to such assignmentAssumption Agreement; and (ziii) such Lender or the Assignee shall have has paid to the Administrative Agent a processing fee in the amount of U.S. $3,000; and (ii) concurrently with such assignment, the assignor Lender shall assign to the Assignee a proportionate share of its loans, commitment and other rights and obligations under the Long-Term Credit Agreement.
(b) 3,500.00. From and after the date that the Administrative Agent notifies the assignor Lender that it has received (and, to the extent required, provided its consent and received the consents of Culligan, the Issuing Lender and the Swing Line Lender with respect to) an executed Assignment and Acceptance and payment of the above-referenced processing feeAssumption Agreement, (iy) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned to it and obligations hereunder have been assumed by it pursuant to such Assignment and AcceptanceAssumption Agreement, shall have the rights and obligations of a Lender under the Loan Documents, and (iiz) the assignor Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and AcceptanceAssumption Agreement, relinquish its rights and be released from its obligations under the Loan Documents. Upon the effective date of such assignment, this Agreement and the other Loan Documents shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Percentage Share arising therefrom.
(c2) Any Lender may at any time sell to one or more commercial banks financial institutions or other Persons not Affiliates of Culligan (each a "“Participant"”) participating interests in any LoanLoans, the Commitment funding commitment of such that Lender and the other interests of such that Lender (the "“originating Lender"”) hereunder and under the other Loan Documents; provided, however, that (i) the originating Lender's ’s obligations under this Agreement shall remain unchanged, (ii) the originating Lender shall remain solely responsible for the performance of such obligations, (iii) the Borrowers, the Issuing Lender, the Swing Line Lender Company and the Administrative Agent shall continue to deal solely and directly with the originating Lender in connection with the originating Lender's ’s rights and obligations under this Agreement and the other Loan Documents, and (iv) no following such sale that Lender shall transfer continue to hold for its own account a Percentage Share of the Aggregate Credit Limit of not less than $4,000,000.00 and (v) the terms of any documentation governing such participation shall not provide for such Participant to have any voting rights on any amendments to the Credit Agreement or grant other Loan Documents other than any participating interest under such amendment which the Participant has rights purports to approve any amendment to(A) forgive principal of, or interest on any consent Loan, (B) postpone any date fixed for the payment of principal of or waiver with respect tointerest on, any Loan, (C) decrease the rates at which interest or fees are payable under the Credit Agreement or (D) release all or substantially all of the Collateral.
(3) Notwithstanding any other provision contained in this Agreement or any other Loan Document, except Document to the extent such amendment, consent or waiver would require unanimous consent of the Lenders as described in the first proviso to Section 12.
1. In the case of any such participation, the Participant shall be entitled to the benefit of Sections 4.1, 4.3, 4.4, 4.6 and 12.5 as though it were also a Lender hereunder, and if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, the Participant shall be deemed to have the right of set-off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement.
(d) Notwithstanding any other provision in this Agreementcontrary, any Lender may at any time create a security interest in, or pledge, assign all or any portion of its rights under and interest in this Agreement and any Note the Loans held by it in favor of to any Federal Reserve Bank in accordance with Lender or the United States Treasury as collateral security pursuant to Regulation A of the FRB or U.S. Treasury Regulation 31 CFR (S)203.14, Board of Governors of the Federal Reserve System and any Operating Circular issued by such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable lawLender.
Appears in 1 contract
Samples: Credit Agreement (Osi Systems Inc)
Assignments, Participations, etc. (a) Any Lender may, with the written consent of Culligan, the Administrative Agent, the Issuing Lender and the Swing Line Lender (which consents shall not be unreasonably withheld), at any time may assign and delegate to one or more Eligible Assignees all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitment and the Loans at the time owing to it); provided that no written consent that:
(i) except in the case of Culliganan assignment of the entire remaining amount of the assigning Lender's Commitment and the Loans at the time owing to it or in the case of an assignment to a Lender or an Affiliate of a Lender or an Approved Fund with respect to a Lender, the aggregate amount of the Commitment (which for this purpose includes Loans outstanding thereunder) of the assigning Lender subject to each such assignment, determined as of the date the Assignment and Assumption Agreement with respect to such assignment is delivered to the Administrative Agent, shall not be less than $5,000,000, unless each of the Issuing Lender or the Swing Line Lender shall be required in connection with any assignment and delegation by a Lender to an Eligible Assignee that is an Affiliate of such Lender (Administrative Agent and, so long as such assignment will not result in any increased costs to no Event of Default has occurred and is continuing, the Borrowers) or to another Lender) Company otherwise consents (each such consent not to be unreasonably withheld or delayed); (ii) each partial assignment shall be made as an "Assignee") assignment of a proportionate part 110 of all or any part of the Loans, the Commitment, the L/C Obligations and the other assigning Lender's rights and obligations of such Lender hereunder, in a minimum Dollar Equivalent amount of U.S. $5,000,000 or, if less, the entire amount of the Loans, Commitment, L/C Obligations and other rights and obligations of such Lender hereunder; provided that (i) the Borrowers and the Administrative Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (x) written notice of such assignment, together with payment instructions, addresses and related information under this Agreement with respect to the Assignee, shall have been given to Culligan and Loans or the Commitment assigned; (iii) any assignment of a Commitment must be approved by the Administrative Agent by such unless the Person that is the proposed assignee is itself a Lender (whether or not the proposed assignee would otherwise qualify as an Eligible Assignee); and (iv) the Assignee; (y) such Lender parties to each assignment shall execute and the Assignee shall have delivered deliver to the Borrowers and the Administrative Agent an Assignment and Acceptance in the form of Exhibit H ("Assignment and Acceptance") Assumption Agreement, together with any Note or Notes subject a processing and recordation fee of $3,500. Subject to such assignment; acceptance and (z) such Lender or the Assignee shall have paid to recording thereof by the Administrative Agent a processing fee in the amount of U.S. $3,000; and (ii) concurrently with such assignment, the assignor Lender shall assign pursuant to the Assignee a proportionate share of its loans, commitment and other rights and obligations under the Long-Term Credit Agreement.
subsection (b) From of this Section, from and after the effective date that the Administrative Agent notifies the assignor Lender that it has received (and, to the extent required, provided its consent specified in each Assignment and received the consents of CulliganAssumption Agreement, the Issuing Lender and the Swing Line Lender with respect to) an executed Assignment and Acceptance and payment of the above-referenced processing fee, (i) the Eligible Assignee thereunder shall be a party hereto and, to the extent that rights hereunder have been of the interest assigned to it and obligations hereunder have been assumed by it pursuant to such Assignment and AcceptanceAssumption Agreement, shall have the rights and obligations of a Lender under the Loan Documentsthis Agreement, and (ii) the assignor assigning Lender thereunder shall, to the extent that rights and obligations hereunder and under of the other Loan Documents have been interest assigned by it pursuant to such Assignment and AcceptanceAssumption Agreement, relinquish its rights and be released from its obligations under this Agreement (and, in the Loan Documentscase of an Assignment and Assumption 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 4.1, 4.3, 4.4, 11.4 and 11.5). Upon request, the Company (at its expense) shall execute and deliver new or replacement Notes evidencing Loans hereunder, if any, to the assigning Lender and the assignee Lender. Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this subsection 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 subsection (c) of this Section 11.8.
(b) The Administrative Agent, acting solely for this purpose as an agent of the Company, shall maintain at the Administrative Agent's office a copy of each Assignment and Assumption Agreement delivered to it and a register for the recordation of the names and addresses of the Lenders, and the Commitment of, and principal amount of the Loans owing to, each Lender pursuant to the terms hereof from time to time (the "Register"). The entries in the Register shall be conclusive, and the Company, the Administrative Agent and the Lenders may treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available for inspection by the Company and any Lender, at any reasonable time and from time to time upon reasonable prior notice.
(c) Any Lender may at any time may, without the consent of, or notice to, the Company or the Administrative Agent, sell participations to one or more commercial banks Lenders or other Persons not Affiliates of Culligan entities (a "Participant") participating interests in any Loan, the Commitment all or a portion of such Lender and Lender's rights and/or obligations under this Agreement (including all or a portion of its Commitment and/or the other interests of such Lender (the "originating Lender") hereunder and under the other Loan DocumentsLoans owing to it); provided, however, provided that (i) the originating such Lender's obligations under this Agreement shall remain unchanged, (ii) the originating such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, obligations and (iii) the BorrowersCompany, the Issuing Lender, the Swing Line Lender and the Administrative Agent and the other Lenders shall continue to deal solely and directly with the originating such Lender in connection with the originating such Lender's rights and obligations under this Agreement. Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and the other Loan Documents, and (iv) no Lender shall transfer or grant any participating interest under which the Participant has rights to approve any amendment toamendment, or any consent modification or waiver with respect toof any provision of this Agreement; provided that such agreement or instrument may provide that such Lender will not, this Agreement or any other Loan Document, except to without the extent such amendment, consent or waiver would require unanimous consent of the Lenders as described in Participant, agree to any amendment, waiver or other modification that would (i) postpone any date upon which any payment of money is scheduled to be paid to such Participant, or (ii) reduce the first proviso principal, interest, fees or other amounts payable to Section 12.
1such Participant. In the case of any such participationSubject to subsection 11.8(d), the Company agrees that each Participant shall be entitled to the benefit benefits of Sections 4.1, 4.3, 4.4, 4.6 4.4 and 12.5 as though it were also a Lender hereunder, and if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, the Participant shall be deemed to have the right of set-off in respect of its participating interest in amounts owing under this Agreement 11.5 to the same extent as if the amount of its participating interest it were owing directly to it as a Lender under and had acquired its interest by assignment pursuant to subsection (a) of this AgreementSection. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 11.10 as though it were a Lender, provided such Participant agrees to be subject to Section 2.15 as though it were a Lender.
(d) Notwithstanding A Participant shall not be entitled to receive any other provision in this Agreementgreater payment under Section 4.1, any 4.3 or 4.4 than the applicable Lender would have been entitled to receive with respect to the participation sold to such Participant, unless the sale of the participation to such Participant is made with the Company's prior written consent. A Participant that would be a Foreign Lender if it were a Lender shall not be entitled to the benefits of Section 4.1 unless the Company is notified of the participation sold to such Participant and such Participant agrees, for the benefit of the Company, to comply with Section 4.1(g) as though it were a Lender.
(e) Any Lender may at any time create pledge or assign a security interest in, or pledge, in all or any portion of its rights under and interest in this Agreement and (including under its Revolving Credit Promissory Note evidencing the Loans, if any) to secure obligations of such Lender, including any Note held by it in favor of any pledge or assignment to secure obligations to a Federal Reserve Bank in accordance with Regulation A of the FRB or U.S. Treasury Regulation 31 CFR (S)203.14, and such Federal Reserve Bank may enforce Farm Credit Bank; provided that no such pledge or security interest assignment shall release a Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto. The Administrative Agent shall have no obligation nor shall it be required to acknowledge or execute any document evidencing any pledge or assignment by a Lender pursuant to this Section 11.8(e).
(f) If the consent of the Company to an assignment or to an Eligible Assignee is required hereunder (including a consent to an assignment which does not meet the minimum assignment threshold specified in any manner permitted under applicable lawclause (i) of the proviso to the first sentence of Section 11.8), the Company shall be deemed to have given its consent five Business Days after the date notice thereof has been delivered by the assigning Lender (through the Administrative Agent) unless such consent is expressly refused by the Company prior to such fifth Business Day.
(g) As used herein, the following terms have the following meanings:
Appears in 1 contract
Assignments, Participations, etc. (a) Any Lender may, with the written consent of Culligan, the Administrative Agent, the Issuing Lender Agent and the Swing Line Lender (Borrower which consents shall not be unreasonably withheld), conditioned or delayed, at any time assign and delegate to one or more Eligible Assignees (provided that no written consent of Culligan, the Administrative Agent, the Issuing Lender or the Swing Line Lender Agent shall be required in connection with any assignment and delegation by a Lender to an Eligible Assignee that is an Affiliate of such Lender (so long as such assignment will not result in any increased costs to the Borrowers) or to another Lender) (each an "Assignee") all all, or any ratable part of all, of the Loans, the Commitment, the L/C Obligations Commitments and the other rights and obligations of such Lender hereunder, in a minimum Dollar Equivalent amount of U.S. the lesser of $5,000,000 or, if less, or the entire amount of the Loans, Commitment, L/C Obligations and other rights and obligations Commitment of such Lender hereunderLender; provided provided, however, that (i) the Borrowers Borrower and the Administrative Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (xi) written notice of such assignment, together with payment instructions, addresses and related information with respect to the Assignee, shall have been given to Culligan the Borrower and the Administrative Agent by such Lender and the Assignee; (yii) such Lender and the its Assignee shall have delivered to the Borrowers Borrower and the Administrative Agent an Assignment and Acceptance in the form of Exhibit H I ("Assignment and Acceptance") together with any Note or Notes subject to such assignment); and (ziii) such the assignor Lender or the Assignee shall have has paid to the Administrative Agent a processing fee in the amount of U.S. $3,000; and (ii) concurrently with such assignment, the assignor Lender shall assign to the Assignee a proportionate share of its loans, commitment and other rights and obligations under the Long-Term Credit Agreement3,500.
(b) From Subject to the conditions set forth in Section 12.8(a), from and after the date that the Administrative Agent notifies the assignor Lender that it has received (and, to the extent required, and provided its consent and received the consents of Culligan, the Issuing Lender and the Swing Line Lender with respect to) an executed Assignment and Acceptance and payment of the above-referenced processing feeAcceptance, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it and obligations hereunder have been assumed by it pursuant to such Assignment and Acceptance, shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assignor Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under the Loan Documents.
(c) Immediately upon each Assignee's making its processing fee payment under the Assignment and Acceptance, this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitments of the assigning Lender pro tanto.
(d) Any Lender may at any time sell to one or more commercial banks or other Persons not Affiliates of Culligan the Borrower (a "Participant") participating interests in any LoanLoans, the Commitment of such that Lender and the other interests of such that Lender (the "originating Lender") hereunder and under the other Loan Documents; provided, however, that (i) the originating Lender's obligations under this Agreement shall remain unchanged, (ii) the originating Lender shall remain solely responsible for the performance of such obligations, (iii) the Borrowers, the Issuing Lender, the Swing Line Lender Borrower and the Administrative Agent shall continue to deal solely and directly with the originating Lender in connection with the originating Lender's rights and obligations under this Agreement and the other Loan Documents, and (iv) no Lender shall transfer or grant any participating interest under which the Participant has rights to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment, consent or waiver would require unanimous consent of the Lenders as described in the first proviso to Section 12.
1. In the case of any such participation, the Participant shall be entitled to the benefit of Sections 4.1, 4.3, 4.4, 4.6 4.3 and 12.5 as though it were also a Lender hereunder, and if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, the each Participant shall be deemed to have the right of set-off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement.
(de) Notwithstanding any other provision in this Agreement, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement and any Note held by it in favor of any Federal Reserve Bank in accordance with Regulation A of the FRB or U.S. Treasury Regulation 31 CFR (S)203.14C.F.R. Section 203.14, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law.
(f) The Borrower agrees to actively assist and cooperate with U. S. Bank in the initial syndication of the Loans, including assistance in the preparation and review of information and participation in one or more meetings with prospective lenders.
Appears in 1 contract
Assignments, Participations, etc. (a) Any Lender may, with the may upon written consent of Culligan, the Administrative Agent, the Issuing Lender Agent and the Swing Line Lender (which consents shall Company, not to be unreasonably withheld), at any time assign and delegate to one or more Eligible Assignees (provided that no written consent of Culligan, the Administrative Agent, the Issuing Lender Agent or the Swing Line Lender Company shall be required in connection with any assignment and delegation by a any Lender to an Eligible Assignee that is a Related Fund or an Affiliate of such Lender (so long as such and provided further that no written consent of the Company shall be required in connection with any assignment will not result in and delegation by any increased costs Lender to the Borrowers) or to another Lenderany Eligible Assignee if an Event of Default shall have occurred and be continuing) (each an "“Assignee"”) all all, or any ratable part of all in a minimum amount of at least $5,000,000 or in $1,000,000 increments in excess thereof, of the Loans, the CommitmentCommitments, the L/C Obligations and the other rights and obligations of such Lender hereunder, in a minimum Dollar Equivalent amount of U.S. $5,000,000 or, if less, the entire amount of the Loans, Commitment, L/C Obligations and other rights and obligations of such Lender hereunderhereunder (or such Lender’s entire Pro Rata Share of such Loans, Commitments and other rights and obligations, if less than an aggregate $5,000,000); provided provided, however, that (i) the Borrowers Company and the Administrative Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (xi) written notice of such assignment, together with payment instructions, addresses and related information with respect to the Assignee, shall have been given to Culligan the Company and the Administrative Agent by such Lender and the Assignee; (yii) such Lender and the its Assignee shall have delivered to the Borrowers Company and the Administrative Agent an Assignment and Acceptance in the form of Exhibit H “E” ("“Assignment and Acceptance"”) together with any Note or Notes subject to such assignment; and (ziii) such the assignor Lender or the Assignee shall have has paid to the Administrative Agent a processing and recordation fee in the amount of U.S. $3,0003,500.00 (which fee may be waived or reduced in the sole discretion of the Administrative Agent); and (ii) concurrently with provided further, however, that only one such assignmentfee shall be payable in the case of concurrent assignments to Persons that, the assignor Lender shall assign after giving effect to the Assignee a proportionate share of its loanssuch assignments, commitment and other rights and obligations under the Long-Term Credit Agreementwill be Related Funds.
(b) From and after the date that the Administrative Agent notifies the assignor Lender that it has received (and, to the extent required, provided its consent and received the consents of Culligan, the Issuing Lender and the Swing Line Lender with respect to) an executed Assignment and Acceptance and payment of the above-referenced processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it and obligations hereunder have been assumed by it pursuant to such Assignment and Acceptance, shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assignor Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under the Loan Documents.
(c) Within five Business Days after its receipt of notice by the Administrative Agent that it has received an executed Assignment and Acceptance and payment of the processing fee, and provided that, if applicable, it consents to such assignment in accordance with Section 11.8(a), if a Note was issued in respect of the assigned interests, upon the request of the Administrative Agent by the Assignee, the Company shall execute and deliver to the Administrative Agent a new Note evidencing such Assignee’s assigned Loans and Maximum Loan Amount and, if the assignor Lender has retained a portion of its Loans and its Commitment, a replacement Note, upon the request of the Administrative Agent by the assignor Lender, in the principal amount equal to the Maximum Loan Amount retained by the assignor Lender (such Note to be in exchange for, but not in payment of, the Note held by such Lender). Immediately upon each Assignee’s making its processing fee payment under the Assignment and Acceptance, this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Lenders’ respective Maximum Loan Amounts and Commitments arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitment of the assigning Lender pro tanto.
(d) Any Lender may at any time sell to one or more commercial banks or other Persons not Affiliates of Culligan the Company (a "“Participant"”) participating interests in any LoanLoans, the Commitment of such that Lender and the other interests of such that Lender (the "originating “Originating Lender"”) hereunder and under the other Loan Documents; provided, however, that (i) the originating Originating Lender's ’s obligations under this Agreement shall remain unchanged, the Originating Lender shall remain a Lender for all purposes hereof and the other Loan Documents to which such Originating Lender is a party, and the Participant may not become a Lender for purposes hereof or for any other of the Loan Documents, (ii) the originating Originating Lender shall remain solely responsible for the performance of such obligations, (iii) the Borrowers, the Issuing Lender, the Swing Line Lender Company and the Administrative Agent shall continue to deal solely and directly with the originating Originating Lender in connection with the originating Originating Lender's ’s rights and obligations under this Agreement and the other Loan Documents, and (iv) no Lender shall transfer or grant any participating interest under which the Participant has rights to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment, consent or waiver would require unanimous consent of the Lenders as described in the first proviso to Section 12.
1Lenders. In the case of any such participation, the Participant shall be entitled to not have any rights under this Agreement, or any of the benefit other Loan Documents (the Participant’s rights against the Originating Lender in respect of Sections 4.1, 4.3, 4.4, 4.6 and 12.5 as though it were also a Lender hereundersuch participation being those set forth in the agreement creating or evidencing such participation with such Lender), and all amounts payable by the Company hereunder shall be determined as if such Lender had not sold such participation; except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence and continuance of an Event of Default, the each Participant shall be deemed to have the right of set-set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement.
(de) Each Lender agrees to take normal and reasonable precautions and exercise due care to maintain the confidentiality of all information provided to it by the Company, or by the Administrative Agent on the Company’s behalf, under or in connection with this Agreement or any other Loan Document, and neither it nor any of its Affiliates shall use any such information other than in connection with or in enforcement of this Agreement and the other Loan Documents, except to the extent such information (i) was or becomes generally available to the public other than as a result of disclosure by such Lender, or (ii) was or becomes available on a non-confidential basis from a source other than the Company, provided, however, that such source is not bound by a confidentiality agreement with the Company known to the Lender; provided further, however, that any Lender may disclose such information (and, in the case of the following subclauses (A) through (D), shall provide promptly written notice of such disclosure to the Company) (A) at the request or pursuant to any requirement of any Governmental Authority to which such Lender is subject or in connection with an examination of such Lender by any such authority; (B) pursuant to subpoena or other court process; (C) when required to do so in accordance with the provisions of any applicable Requirement of Law; (D) to the extent reasonably required in connection with any litigation or proceeding to which the Administrative Agent, any Lender or their respective Affiliates may be party; (E) to the extent reasonably required in connection with the exercise of any remedy hereunder or under any other Loan Document; (F) to such Lender’s independent auditors and other professional advisors; (G) to any Affiliate of such Lender, or to any Participant or Assignee, actual or potential, provided that such Affiliate, Participant or Assignee agrees to keep such information confidential to the same extent required of the Lenders hereunder; and (H) as to any Lender, as expressly permitted under the terms of any other document or agreement regarding confidentiality to which the Company is party or is deemed to be party with such Lender.
(f) Notwithstanding any other provision in this Agreement, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement and any the Note held by it in favor of any Federal Reserve Bank Lender in accordance with Regulation A of the FRB or U.S. Treasury Regulation 31 CFR (S)203.14§203.14, and such Federal Reserve Bank Lender may enforce such pledge or security interest in any manner permitted under applicable law.
Appears in 1 contract
Assignments, Participations, etc. (a) Any Lender may, with the written consent of Culligan, the Administrative Agent, and unless an Event of Default shall have occurred and be continuing, with the Issuing Lender and written consent of the Swing Line Lender (which consents shall not be unreasonably withheld)Company, at any time assign and delegate to one or more Eligible Assignees (provided that no written consent of Culligan, the Administrative Agent, the Issuing Lender Company or the Swing Line Lender Agent shall be required in connection with any assignment and delegation by a Lender to an Eligible Assignee that is an Affiliate of such Lender (so long as such assignment will not result in any increased costs to the Borrowers) or to another Lender) (each an "Assignee") all all, or any ratable part of all, of the Loans, the Commitment, the L/C Obligations Revolving Commitments and the other rights and obligations of such Lender hereunder, in a minimum Dollar Equivalent amount of U.S. Five Million Dollars ($5,000,000 or5,000,000); provided, if lesshowever, the entire amount that no Lender that is a party as of the Date of this Agreement, may assign or delegate any ratable part of its Loans, Commitment, L/C Obligations and Revolving Commitments or other rights and obligations hereunder if, after giving effect to any such assignment or delegation, the sum of such Lender hereunder; provided that (i) the Borrowers then outstanding principal balance of such Lender's Term Loan plus (ii) such Lender's Revolving Commitment is an amount greater than zero but less than Ten Million Dollars ($10,000,000); and provided, further, that the Company and the Administrative Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (xi) written notice of such assignment, together with payment instructions, addresses and related information with respect to the Assignee, shall have been given to Culligan the Company and the Administrative Agent by such Lender and the Assignee; (yii) such the assignor Lender and the its Assignee shall have delivered to the Borrowers Company and the Administrative Agent an Assignment and Acceptance in the form of Exhibit H E ("Assignment and Acceptance") together with any Note or Notes subject to such assignment; assignment and (ziii) such the assignor Lender or the Assignee shall have has paid to the Administrative Agent a processing fee in the amount of U.S. Three Thousand Five Hundred Dollars ($3,0003,500), and unless an Event of Default shall have occurred and be continuing, with the written consent of the Company; and provided, further, that if (i) the assignor Lender or any of its Affiliates is a Swap Provider with respect to any Specified Swap Contract and (ii) concurrently with such assignment, the assignor Lender shall assign have assigned all of its interest in the Loans and the Revolving Commitments to an Assignee, then such assignor Lender and all of its Affiliates shall cease to be a Swap Provider and all Swap Contracts entered into by such assignor Lender or any of its Affiliates shall cease to be Specified Swap Contracts for purposes of this Agreement and the other Loan Documents; and provided, further, that notwithstanding anything in this Section 10.08(a) to the Assignee a proportionate share contrary, so long as no Event of Default shall have occurred and be continuing, no Lender may assign all or any portion of its loansinterests hereunder to any Assignee if, commitment and other rights and obligations under on the Long-Term Credit Agreementdate the assignment is to become effective, a payment made by Agent to such Assignee would be subject to any U.S. withholding tax. Any consent to assignment required of the Agent or of the Company pursuant to this Section 10.08 74 shall not be unreasonably withheld.
(b) From and after the date that the Administrative Agent notifies the assignor Lender that it has received (and, to the extent required, and provided its consent and received the consents of Culligan, the Issuing Lender and the Swing Line Lender with respect to) an executed Assignment and Acceptance and payment of the above-referenced processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it and obligations hereunder have been assumed by it pursuant to such Assignment and Acceptance, shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assignor Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under the Loan Documents.
(c) Within five (5) Business Days after its receipt of notice by the Agent that it has received an executed Assignment and Acceptance and payment of the processing fee, (and provided that it consents to such assignment in accordance with subsection 10.08(a)), the Company shall execute and deliver to the Agent, new Notes evidencing such Assignee's assigned Loans and Revolving Commitment and, if the assignor Lender has retained a portion of its Loans and its Revolving Commitment, replacement Notes in the principal amount of the Loans retained by the assignor Lender (such Notes to be in exchange for, but not in payment of, the Notes held by such Lender). Immediately upon each Assignee's making its processing fee payment under the Assignment and Acceptance, this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Revolving Commitments arising therefrom. The Revolving Commitment allocated to each Assignee shall reduce such Revolving Commitments of the assigning Lender pro tanto.
(d) Any Lender may at any time sell to one or more commercial banks or other Persons not Affiliates of Culligan the Company (a "Participant") participating interests in any LoanLoans, the Revolving Commitment of such that Lender and the other interests of such that Lender (the "originating Lender") hereunder and under the other Loan Documents; provided, however, that (i) the originating Lender's obligations under this Agreement shall remain unchanged, (ii) the originating Lender shall remain solely responsible for the performance of such obligations, (iii) the Borrowers, the Issuing Lender, the Swing Line Lender Company and the Administrative Agent shall continue to deal solely and directly with the originating Lender in connection with the originating Lender's rights and obligations under this Agreement and the other Loan Documents, and (iv) no Lender shall transfer or grant any participating interest under which the Participant has rights to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment, consent or waiver would require unanimous consent of the Lenders as described in the first proviso to Section 1210.
101. In the case of any such participation, the Participant shall be entitled to the benefit of Sections 4.13.01, 4.3, 4.4, 4.6 3.03 and 12.5 10.05 as though it were also a Lender hereunder, and if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, the each Participant shall be deemed to have the right of set-off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement.
(de) Notwithstanding any other provision in this Agreement, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement and any the Note held by it in favor of any Federal Reserve Bank in accordance with Regulation A of the FRB or U.S. Treasury Regulation 31 CFR (S)203.14, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law.
(f) Notwithstanding any provision to the contrary contained elsewhere in this Agreement, any Lender (a "granting Lender") may from time to time designate a special purpose funding vehicle (an "SPFV") identified as such in writing by the granting Lender to the Agent and the Company, the option to fund all or any part of any Loan that such granting Lender would otherwise be obligated to fund hereunder; provided, however, that notwithstanding any such designation, (i) the granting Lender's obligations under this Agreement shall remain unchanged, and the granting Lender shall remain solely responsible for the performance of such obligations, including any failure by an SPFV to fund any Loan, (ii) the Company and the Agent shall continue to deal solely and directly with the granting Lender and shall deliver all notices, including borrowing notices, and make all payments, including with respect to any Loan or part thereof funded by an SPFV, directly and solely to the granting Lender, (iii) other than the right to receive payment in respect of any Loan or part thereof funded by an SPFV, no SPFV shall have any rights under the Loan Documents, including with respect to increased costs, funding losses in excess of what the granting Lender would have been entitled to if it had funded such Loan, and (iv) the granting Lender shall not grant an SPFV any rights to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document. Nothing herein shall constitute a commitment by any SPFV to make all or any part of any Loan. The making of a Loan or part thereof by an SPFV hereunder shall utilize the Commitment of the granting Lender to the same extent, and as if, such Loan or part thereof were made by such granting Lender. Each party hereto agrees that no SPFV shall be liable for any indemnity or similar payment obligation under this Agreement or any other Loan Document (all liability for which shall remain with the granting Lender). In furtherance of the foregoing, each party hereto 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 SPFV, it will not institute against, or join any other person in instituting against, such SPFV any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any State thereof. In addition, notwithstanding anything in this Section 10.08(f) to the contrary, any SPFV may (i) with notice to, but without the prior written consent of, the Company and the Agent and without paying any processing fee therefor, assign all or any portion of its interests in any Loans to the granting Lender or assign all or any portion of its interests in any Loan for security purposes to any financial institutions (consented to by the Company and the Agent) providing liquidity and/or credit support to or for the account of such SPFV to support the funding or maintenance of Loans and (ii) disclose on a confidential basis any non-public information relating to its Loans to any rating agency, commercial paper dealer or provider of any surety, guarantee or credit or liquidity enhancement to such SPFV. As this Section 10.08(f) applies to any particular SPFV, this Section may not be amended without the written consent of such SPFV.
Appears in 1 contract
Assignments, Participations, etc. (a) Any Lender Bank may, with the written consent of Culligan, the Borrower (at all times other than during the existence of an Event of Default) and the Administrative Agent, the Issuing Lender and the Swing Line Lender (which consents shall not be unreasonably withheld), at any time assign and delegate to one or more Eligible Assignees (provided that no written consent of Culligan, the Borrower or the Administrative Agent, the Issuing Lender or the Swing Line Lender Agent shall be required in connection with any assignment and delegation by a Lender Bank to an Eligible Assignee that is an Affiliate of such Lender (so long as such assignment will not result in any increased costs to the Borrowers) or to another LenderBank) (each an "Assignee") all all, or any ratable part of all, of the Loans, the Commitment, the L/C Obligations Commitments and the other rights and obligations of such Lender hereunderBank hereunder in an aggregate minimum amount of $3,000,000 or a lesser amount to be agreed upon by the Administrative Agent and the Borrower (unless to an existing Bank, in a which case no minimum Dollar Equivalent assignment shall apply); provided that such Bank shall retain an aggregate amount of U.S. not less than $5,000,000 or3,000,000 in respect thereof, if less, the entire amount unless such Bank assigns and delegates all of the Loans, Commitment, L/C Obligations and other its rights and obligations of such Lender hereunderhereunder to one or more Eligible Assignees at the time and subject to the conditions set forth herein; provided and provided, further, however, that (i) the Borrowers Borrower and the Administrative Agent may continue to deal solely and directly with such Lender Bank in connection with the interest so assigned to an Assignee until (xi) written notice of such assignment, together with payment instructions, addresses and related information with respect to the Assignee, shall have been given to Culligan the Borrower and the Administrative Agent by such Lender Bank and the Assignee; (yii) such Lender Bank and the its Assignee shall have delivered to the Borrowers Borrower and the Administrative Agent an Assignment and Acceptance in the form of Exhibit H E ("Assignment and Acceptance") ), together with any Note or Notes subject to such assignment; and (ziii) such Lender or the Assignee shall have assignor Bank has paid to the Administrative Agent a processing fee in the amount of U.S. $3,000; and (ii) concurrently with such assignment, the assignor Lender shall assign to the Assignee a proportionate share of its loans, commitment and other rights and obligations under the Long-Term Credit Agreement.
(b) 3,500. From and after the date that the Administrative Agent notifies the assignor Lender Bank that it has received (and, to the extent required, and provided its consent and received the consents of Culligan, the Issuing Lender and the Swing Line Lender with respect to) an executed Assignment and Acceptance and payment of the above-referenced processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it and obligations hereunder have been assumed by it pursuant to such Assignment and Acceptance, shall have the rights and obligations of a Lender Bank under the Loan Documents, and (ii) the assignor Lender Bank shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under the Loan Documents.
. Within five Business Days after its receipt of notice by the Administrative Agent that it has received an executed Assignment and Acceptance and payment of the processing fee (c) Any Lender may at any time sell and provided that it consents to one or more commercial banks or other Persons not Affiliates of Culligan (a "Participant") participating interests such assignment in any Loanaccordance with subsection 10.08(a)), if the Assignee so requests, the Commitment Borrower shall execute and deliver to the Administrative Agent, new Notes evidencing such Assignee's assigned Loans and Commitments and, if the assignor Bank has retained a portion of its Loans and its Commitments and so requests, replacement Notes in the principal amount or amounts of the Loans retained by the assignor Bank (such Lender and Notes to be in exchange for, but not in payment of, the other interests of Notes held by such Lender (the "originating Lender") hereunder and Bank). Immediately upon each Assignee's making its processing fee payment under the other Loan Documents; providedAssignment and Acceptance, however, that (i) the originating Lender's obligations under this Agreement shall remain unchangedbe deemed to be amended to the extent, (ii) but only to the originating Lender extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments arising therefrom. The Commitments allocated to each Assignee shall remain solely responsible for reduce such Commitments of the performance of such obligations, (iii) the Borrowers, the Issuing Lender, the Swing Line Lender assigning Bank pro tanto and the Administrative Agent shall continue to deal solely promptly prepare and directly with distribute a new Schedule 2.01 reflecting the originating Lender in connection with the originating Lender's rights and obligations under this Agreement and the other Loan Documents, and (iv) no Lender shall transfer or grant any participating interest under which the Participant has rights to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment, consent or waiver would require unanimous consent of the Lenders as described in the first proviso to Section 12new commitments.
101. In the case of any such participation, the Participant shall be entitled to the benefit of Sections 4.13.01, 4.3, 4.4, 4.6 3.03 and 12.5 10.05 as though it were also a Lender Bank hereunder, and if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, the each Participant shall be deemed to have the right of set-off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender Bank under this Agreement.
(d) Notwithstanding any other provision in this Agreement, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement and any Note held by it in favor of any Federal Reserve Bank in accordance with Regulation A of the FRB or U.S. Treasury Regulation 31 CFR (S)203.14, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law.
Appears in 1 contract
Samples: Short Term Revolving Credit Agreement (Ferrellgas Partners Finance Corp)
Assignments, Participations, etc. (a) Any Lender mayBank may at any time assign to one or more Eligible Assignees all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitment and the Loans (including for purposes of this subsection (a), participations in L/C Obligations) at the time owing to it); provided that (i) except in the case of an assignment of the entire remaining amount of the assigning Bank’s Commitment and the Loans at the time owing to it or in the case of an assignment to a Bank or an Affiliate of a Bank or an Approved Fund with respect to a Bank, the written aggregate amount of the Commitment (which for this purpose includes Loans outstanding thereunder) subject to each such assignment, determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent or, if “Trade Date” is specified in the Assignment and Assumption, as of the Trade Date, shall not be less than $5,000,000 unless each of the Administrative Agent and, so long as no Event of Default has occurred and is continuing, the Borrowers otherwise consent (each such consent not to be unreasonably withheld or delayed); (ii) each partial assignment shall be made as an assignment of Culligan, a proportionate part of all the assigning Bank’s rights and obligations under this Agreement with respect to the Loans or the Commitment assigned; (iii) any assignment of a Commitment must be approved by the Administrative Agent, the Issuing Lender and Bank and, provided no Event of Default has occurred or is continuing, the Swing Line Lender Borrowers (which consents shall such approval not to be unreasonably withheld), at any time assign and delegate to one withheld or more Eligible Assignees (provided that no written consent of Culligan, delayed) unless the Administrative Agent, the Issuing Lender or the Swing Line Lender shall be required in connection with any assignment and delegation by a Lender to an Eligible Assignee Person that is an Affiliate of such Lender the proposed assignee is itself a Bank; and (so long as such assignment will not result in any increased costs to the Borrowers) or to another Lender) (each an "Assignee") all or any part of the Loans, the Commitment, the L/C Obligations and the other rights and obligations of such Lender hereunder, in a minimum Dollar Equivalent amount of U.S. $5,000,000 or, if less, the entire amount of the Loans, Commitment, L/C Obligations and other rights and obligations of such Lender hereunder; provided that (iiv) the Borrowers parties to each assignment shall execute and the Administrative Agent may continue deliver to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (x) written notice of such assignment, together with payment instructions, addresses and related information with respect to the Assignee, shall have been given to Culligan and the Administrative Agent by such Lender and the Assignee; (y) such Lender and the Assignee shall have delivered to the Borrowers and the Administrative Agent an Assignment and Acceptance in the form of Exhibit H ("Assignment and Acceptance") Assumption, together with any Note or Notes subject a processing and recordation fee of $3,500. Subject to such assignment; acceptance and (z) such Lender or the Assignee shall have paid to recording thereof by the Administrative Agent a processing fee in the amount of U.S. $3,000; and (ii) concurrently with such assignment, the assignor Lender shall assign pursuant to the Assignee a proportionate share of its loans, commitment and other rights and obligations under the Long-Term Credit Agreement.
subsection (b) From of this Section and subject to Section 11.08(d), from and after the effective date that the Administrative Agent notifies the assignor Lender that it has received (and, to the extent required, provided its consent specified in each Assignment and received the consents of CulliganAssumption, the Issuing Lender and the Swing Line Lender with respect to) an executed Assignment and Acceptance and payment of the above-referenced processing fee, (i) the Eligible Assignee thereunder shall be a party hereto to this Agreement and, to the extent that rights hereunder have been of the interest assigned to it and obligations hereunder have been assumed by it pursuant to such Assignment and AcceptanceAssumption, shall have the rights and obligations of a Lender Bank under the Loan Documentsthis Agreement, and (ii) the assignor Lender assigning Bank thereunder shall, to the extent that rights and obligations hereunder and under of the other Loan Documents have been interest assigned by it pursuant to such Assignment and AcceptanceAssumption, relinquish its rights and be released from its obligations under this Agreement (and, in the Loan Documentscase of an Assignment and Assumption covering all of the assigning Bank’s rights and obligations under this Agreement, such Bank shall cease to be a party hereto but shall continue to be entitled to the benefits of Sections 4.01, 4.04, 4.05, 11.04 and 11.05 with respect to facts and circumstances occurring prior to the effective date of such assignment). Upon request, the Borrowers (at their expense) shall execute and deliver a Note to the assignee Bank. Any assignment or transfer by a Bank of rights or obligations under this Agreement that does not comply with this subsection shall be treated for purposes of this Agreement as a sale by such Bank of a participation in such rights and obligations in accordance with subsection (c) of this Section.
(b) The Administrative Agent, acting solely for this purpose as an agent of the applicable Borrower, shall maintain at the Administrative Agent’s office a copy of each Assignment and Assumption delivered to it and a register for the recordation of the names and addresses of the Banks, and the Commitments of, and principal amounts of the Loans and L/C Obligations owing to, each Bank pursuant to the terms hereof from time to time (the “Register”). The entries in the Register shall be conclusive, and the Borrowers, the Administrative Agent and the Banks may treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Bank hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available for inspection by the Borrowers and any Bank, at any reasonable time and from time to time upon reasonable prior notice.
(c) Any Lender Bank may at any time sell to one time, without the consent of, or more commercial banks or other Persons not Affiliates of Culligan (a "Participant") participating interests in any Loannotice to, the Commitment applicable Borrower or the Administrative Agent, sell participations to any Person (other than a natural person or the Borrower or any of the Borrower’s Affiliates or Subsidiaries) (each, a “Participant”) in all or a portion of such Lender and Bank’s rights and/or obligations under this Agreement (including all or a portion of its Commitment and/or the other interests of Loans (including such Lender (the "originating Lender"Bank’s participations in L/C Obligations) hereunder and under the other Loan Documentsowing to it); provided, however, provided that (i) the originating Lender's such Bank’s obligations under this Agreement shall remain unchanged, (ii) the originating Lender such Bank shall remain solely responsible to the other parties hereto for the performance of such obligations, obligations and (iii) the BorrowersBorrower, the Issuing Lender, the Swing Line Lender and the Administrative Agent and the other Banks shall continue to deal solely and directly with the originating Lender such Bank in connection with the originating Lender's such Bank’s rights and obligations under this Agreement. Any agreement or instrument pursuant to which a Bank sells such a participation shall provide that such Bank shall retain the sole right to enforce this Agreement and the other Loan Documents, and (iv) no Lender shall transfer or grant any participating interest under which the Participant has rights to approve any amendment toamendment, or any consent modification or waiver with respect toof any provision of this Agreement; provided that such agreement or instrument may provide that such Bank will not, this Agreement or any other Loan Document, except to without the extent such amendment, consent or waiver would require unanimous consent of the Lenders as Participant, (such consent not to be unreasonably withheld or delayed) agree to any amendment, waiver or other modification described in the first proviso to Section 12.
111.01 that directly affects such Participant. In the case Subject to subsection (d) of any such participationthis Section, the Borrower agrees that each Participant shall be entitled to the benefit benefits of Sections 4.14.01, 4.3, 4.4, 4.6 4.04 and 12.5 as though it were also a Lender hereunder, and if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, the Participant shall be deemed to have the right of set-off in respect of its participating interest in amounts owing under this Agreement 4.05 to the same extent as if it were a Bank and had acquired its interest by assignment pursuant to subsection (a) of this Section. To the amount extent permitted by law, each Participant also shall be entitled to the benefits of its participating interest Section 11.10 as though it were owing directly a Bank, provided such Participant agrees to be subject to Section 2.14 and Section 11.09 as though it as were a Lender under this AgreementBank.
(d) Notwithstanding Neither an Eligible Assignee nor a Participant shall be entitled to receive any other provision greater payment under Section 4.01 or 4.04 than the applicable Bank granting the participation or assigning its interest in this Agreementthe Credit (or Commitment) to the Eligible Assignee would have been entitled to receive with respect to the participation or assigned interest or Commitment sold to such Eligible Assignee or Participant, any Lender unless the sale of the participation or assignment to such Participant or Eligible Assignee is made with the Borrower’s prior written consent. A Participant that would be a foreign lender if it were a Bank shall not be entitled to the benefits of Section 4.01 unless the Borrower is notified of the participation sold to such Participant and such Participant agrees, for the benefit of the Borrower, to comply with Section 11.15 and 11.09 as though it were a Bank.
(e) Any Bank may at any time create pledge or assign a security interest in, or pledge, in all or any portion of its rights under and interest in this Agreement and (including under its Note, if any) to secure obligations of such Bank, including any Note held by it in favor of any pledge or assignment to secure obligations to a Federal Reserve Bank in accordance with Regulation A of the FRB or U.S. Treasury Regulation 31 CFR (S)203.14, and such Federal Reserve Bank may enforce Bank; provided that no such pledge or security interest in assignment shall release such Bank from any manner permitted under applicable lawof its obligations hereunder or substitute any such pledgee or assignee for such Bank as a party hereto.
Appears in 1 contract
Samples: Credit Agreement (Zemex Corp)
Assignments, Participations, etc. (a) Any Lender may, with the written consent of Culligan, the Administrative Agent, the Issuing Lender and the Swing Line Lender (which consents shall not be unreasonably withheld), A Bank may at any time assign and delegate to one or more Eligible Assignees (each an "Assignee") with the written consent of the Borrower (other than during the existence of an Event of Default) and of the Agent (at all times), which consent shall not be unreasonably withheld (provided that no written consent of Culligan, the Administrative Agent, the Issuing Lender or the Swing Line Lender shall be required in connection with any assignment and delegation by a Lender to for an Eligible Assignee that is an Affiliate of such Lender (so long as such assignment will not result in any increased costs to the Borrowers) or to another Lender) (each an "Assignee"assignor Bank) all or any part of its Pro Rata Share of the Loans, the Commitment, the L/C Obligations Loan and the other rights and obligations of such Lender assignor Bank hereunder, in a minimum Dollar Equivalent amount of U.S. $5,000,000 or5,000,000; provided, however, that no such assignment shall be permitted if less, the entire amount effect thereof is to cause the remaining Commitment of the Loansassignor Bank to be less than $15,000,000. However, Commitmentsuch assignment shall be conditioned on, L/C Obligations and other rights and obligations of such Lender hereunder; provided that (i) the Borrowers and the Administrative Borrower and the Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until assignor Bank until, (xi) written notice of such assignment, together with payment instructions, addresses and related information with respect to substantially in the Assignee, form of the attached Exhibit A shall have been given to Culligan the Borrower and the Administrative Agent by such Lender Bank and the Assignee; (yii) such Lender Bank and the its Assignee shall have delivered to the Borrowers Agent and the Administrative Agent Borrower an Assignment and Acceptance Assumption Agreement substantially in the form of the attached Exhibit H B ("Assignment and AcceptanceAssumption Agreement") (together with any Note or Notes Note(s) subject to such assignment); and (ziii) such Lender or the Assignee shall have has paid to the Administrative Agent a processing fee in the amount of U.S. $3,000; and (ii) concurrently with such assignment, the assignor Lender shall assign to the Assignee a proportionate share of its loans, commitment and other rights and obligations under the Long-Term Credit Agreement5,000.
(b) From and after the date that the Administrative Agent notifies the assignor Lender Bank that it has received (andall conditions and requirements of the assignment have been met, then to the extent required, provided its consent that rights and received the consents of Culligan, the Issuing Lender and the Swing Line Lender with respect to) an executed Assignment and Acceptance and payment of the above-referenced processing fee, obligations hereunder have been assigned (i) the Assignee thereunder shall be a party hereto and, to the extent that rights hereunder have been assigned to it and obligations hereunder have been assumed by it pursuant to such Assignment and Acceptance, shall have the rights and obligations of a Bank under the Loan Documents and the Co-Lender Agreement, (ii) the assignor Bank shall relinquish such assigned rights and be released from such assigned obligations under the Loan Documents, and (iiiii) the assignor Lender shall, this Agreement shall be deemed to be amended to the extent that rights necessary to reflect the addition of the Assignee and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under resulting adjustment of the Pro Rata Shares of the Loan Documentsarising therefrom, and (iv) the Pro Rata Share allocated to an Assignee shall reduce the Pro Rata Share of the assigning Bank.
(c) Any Lender A Bank (the "originating Bank") may at any time sell to one or more commercial banks or other Persons not Affiliates of Culligan the Borrower (a "Participant") participating interests in any the Loan, the Commitment of such Lender and the other interests of such Lender (the "originating Lender") hereunder and under the other Loan Documents; provided, however, provided that (i) the originating LenderBank's obligations under this the Loan Documents and the Co-Lender Agreement shall remain unchanged, (ii) the originating Lender Bank shall remain solely responsible for the performance of such obligations, (iii) the Borrowers, the Issuing Lender, the Swing Line Lender Borrower and the Administrative Agent shall continue to deal solely and directly with the originating Lender Bank in connection with the originating Lender's rights Loan and obligations under this Agreement and the other Loan Documents, and (iv) no Lender Bank shall transfer or grant any participating interest under which the Participant has rights to approve any amendment toamendment, or any consent or waiver with respect to, this Agreement or to any other Loan Document, except to the extent such amendment, consent or waiver would require unanimous consent of the Lenders as described Banks, and (v) each participating interest shall be in a minimum amount of $5,000,000, and no such participation shall be permitted if the first proviso to Section 12.
1non-participated interest of the originating Bank would thereafter be less than $15,000,000. In the case of any such participation, the A Participant shall be entitled to not have any rights under the benefit of Sections 4.1, 4.3, 4.4, 4.6 and 12.5 as though it were also a Loan Documents or the Co-Lender hereunderAgreement, and if all amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon by the occurrence of an Event of Default, the Participant Borrower hereunder shall be deemed to have the right of set-off in respect of its participating interest in amounts owing under this Agreement to the same extent determined as if the amount of its participating interest were owing directly to it as a Lender under this Agreementoriginating Bank had not sold such participation.
(d) Notwithstanding any other provision in this Agreementprovision, any Lender a Bank may at any time create a security interest in, or pledge, all or any portion of pledge its rights under and interest in this Agreement and any Note held by it the Loan in favor of any Federal Reserve Bank in accordance with Regulation A of the FRB or U.S. Treasury Regulation 31 CFR (S)203.14, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law.
Appears in 1 contract
Samples: Modification Agreement to Syndicate Loan (Bre Properties Inc /Md/)
Assignments, Participations, etc. (a) Any Lender may, with the written consent of Culligan, the Administrative Agent, the Issuing Lender Agent and the Swing Line Lender (Borrower which consents shall not be unreasonably withheld), conditioned or delayed, at any time assign and delegate to one or more Eligible Assignees (provided that no written consent of Culligan, the Administrative Agent, the Issuing Lender or the Swing Line Lender Agent shall be required in connection with any assignment and delegation by a Lender to an Eligible Assignee that is an Affiliate of such Lender (so long as such assignment will not result in any increased costs to the Borrowers) or to another Lender) (each an "Assignee") all all, or any ratable part of all, of the Loans, the Commitment, the L/C Obligations Commitments and the other rights and obligations of such Lender hereunder, in a minimum Dollar Equivalent amount of U.S. the lesser of $5,000,000 or, if less, or the entire amount of the Loans, Commitment, L/C Obligations and other rights and obligations Commitment of such Lender hereunderLender; provided provided, however, that (i) the Borrowers Borrower and the Administrative Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (xi) written notice of such assignment, together with payment instructions, addresses and related information with respect to the Assignee, shall have been given to Culligan the Borrower and the Administrative Agent by such Lender and the Assignee; (yii) such Lender and the its Assignee shall have delivered to the Borrowers Borrower and the Administrative Agent an Assignment and Acceptance in the form of Exhibit H J ("Assignment and Acceptance") together with any Note or Notes subject to such assignment); and (ziii) such the assignor Lender or the Assignee shall have has paid to the Administrative Agent a processing fee in the amount of U.S. $3,000; and (ii) concurrently with 3,500. Notwithstanding the foregoing, no consent of the Borrower shall be required for any such assignment, assignment during the assignor Lender shall assign to the Assignee a proportionate share existence of its loans, commitment and other rights and obligations under the Long-Term Credit Agreementan Event of Default.
(b) From Subject to the conditions set forth in Section 12.8(a), from and after the date that the Administrative Agent notifies the assignor Lender that it has received (and, to the extent required, and provided its consent and received the consents of Culligan, the Issuing Lender and the Swing Line Lender with respect to) an executed Assignment and Acceptance and payment of the above-referenced processing feeAcceptance, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it and obligations hereunder have been assumed by it pursuant to such Assignment and Acceptance, shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assignor Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under the Loan Documents.
(c) Immediately upon each Assignee's making its processing fee payment under the Assignment and Acceptance, this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitments of the assigning Lender pro tanto.
(d) Any Lender may at any time sell to one or more commercial banks or other Persons not Affiliates of Culligan the Borrower (a "Participant") participating interests in any LoanLoans, the Commitment of such that Lender and the other interests of such that Lender (the "originating Lender") hereunder and under the other Loan Documents; provided, however, that (i) the originating Lender's obligations under this Agreement shall remain unchanged, (ii) the originating Lender shall remain solely responsible for the performance of such obligations, (iii) the Borrowers, the Issuing Lender, the Swing Line Lender Borrower and the Administrative Agent shall continue to deal solely and directly with the originating Lender in connection with the originating Lender's rights and obligations under this Agreement and the other Loan Documents, and (iv) no Lender shall transfer or grant any participating interest under which the Participant has rights to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment, consent or waiver would require unanimous consent of the Lenders as described in the first proviso to Section 12.
1. In the case of any such participation, the Participant shall be entitled to the benefit of Sections 4.1, 4.3, 4.4, 4.6 4.3 and 12.5 as though it were also a Lender hereunder, and if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, the each Participant shall be deemed to have the right of set-off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement.
(de) Notwithstanding any other provision in this Agreement, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement and any Note held by it in favor of any Federal Reserve Bank in accordance with Regulation A of the FRB or U.S. Treasury Regulation 31 CFR (S)203.14C.F.R. ss. 203.14, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law.
(f) The Borrower agrees to actively assist and cooperate with U.S. Bank in the initial syndication of the Loans, including assistance in the preparation and review of information and participation in one or more meetings with prospective lenders.
Appears in 1 contract
Assignments, Participations, etc. (a) Any Lender may, with the prior written consent of Culliganthe Borrower and the Administrative Agent and, in the case of Revolving Commitments and Special Facility Obligations, the Administrative AgentFronting Lender, the Issuing Lender and the Swing Line Lender (which consents shall not be unreasonably withheld), at any time assign and delegate to one or more Eligible Assignees (provided that no written consent of Culligan, the Administrative Agent, the Issuing Lender or the Swing Line Lender Borrower shall be required in connection with any assignment and delegation by a Lender to an Eligible Assignee that is an Affiliate of such Lender (so long as such assignment will not result in any increased costs to the Borrowers) or to another Lender) (each an "Assignee") all or any part of the Revolving Loans, the CommitmentTranche A Term Loans, the L/Tranche B Term Loans, the Tranche C Term Loans, the Tranche D Term Loans, the Revolving Commitments and the Special Facility Obligations and the other rights and obligations of such Lender hereunder, in a minimum Dollar Equivalent amount of U.S. $5,000,000 or, if less, the entire amount of the lesser of $5,000,000 (or such lesser amount as may be agreed to by the Borrower and the Administrative Agent in their sole and absolute discretion) and the full remaining amount of such Lender's Revolving Loans, CommitmentTranche A Term Loans, L/Trance B Term Loans, Tranche C Term Loans, Tranche D Term Loans, Revolving Commitments or Special Facility Obligations and other rights and obligations (except that no such minimum shall be applicable on an assignment to a Lender or an Affiliate of such Lender hereundera Lender); provided provided, however, that (i) the Borrowers Borrower and the Administrative Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Eligible Assignee until (xi) written notice of such assignment, together with payment instructions, addresses and related information with respect to the Eligible Assignee, shall have been given to Culligan the Borrower and the Administrative Agent by such Lender and the Eligible Assignee; (yii) such Lender and the its Eligible Assignee shall have delivered to the Borrowers Borrower and the Administrative Agent an Assignment and Acceptance substantially in the form of Exhibit H J ("Assignment and Acceptance") together with any Note or Notes subject to such assignment; assignment and (ziii) such the assignor Lender or the Eligible Assignee shall have has paid to the Administrative Agent a registration and processing fee in the amount of U.S. $3,000; and (ii) concurrently with such assignment, the assignor Lender shall assign to the Assignee a proportionate share of its loans, commitment and other rights and obligations under the Long-Term Credit Agreement.
(b) From Upon the request of the Eligible Assignee, solely to facilitate the pledge or assignment of its Loans to any Federal Reserve Bank, the Borrower shall issue Notes to the Eligible Assignee. Upon the request of the assignor Lender, if applicable, solely to facilitate the pledge or assignment of its Loans to any Federal Reserve Bank, the Borrower shall issue a reduced Note to such assignor in exchange and after replacement for its then existing Note.
(c) The Administrative Agent, on behalf of the date that Borrower, shall maintain at the address of the Administrative Agent notifies specified on Schedule 11.2 (or at such other address as may be designated by the assignor Lender that it has received (and, Administrative Agent from time to the extent required, provided its consent and received the consents time in accordance with Section 11.2) a copy of Culligan, the Issuing Lender and the Swing Line Lender with respect to) an executed each 100 Assignment and Acceptance delivered to it and payment a register (the "Register") for the recordation of the above-referenced names and addresses of the Lenders and the Commitment of and principal amount of the Loans owing to each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of a Loan or other obligation hereunder as the owner thereof for all purposes of this Agreement and the other Loan Documents, notwithstanding any notice to the contrary. Any assignment of any Loan or other obligation hereunder shall be effective only upon appropriate entries with respect thereto being made in the Register. The Register shall be available for inspection by the Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice.
(d) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an Eligible Assignee (and consented to by the Administrative Agent and, in the case of Revolving Commitments and Special Facility Obligations, by the Fronting Lender and, in the case of an Eligible Assignee that is not an Affiliate of the assigning Lender, by the Borrower (in each case such consent not to be unreasonably withheld)) together with payment to the Administrative Agent of the registration and processing feefee described in clause (a)(iii), the Administrative Agent shall record the information contained therein in the Register and give notice of such acceptance and recordation to the Lenders and the Borrower. Immediately upon the recordation of such information in the Register, this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments arising therefrom, and (i) the Eligible Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it and obligations hereunder have been assumed by it pursuant to such Assignment and Acceptance, shall have the rights and obligations of a Lender under the Loan Documents, Documents and (ii) the assignor Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under the Loan Documents. The Commitment allocated to each Assignee shall reduce such Commitments of the assigning Lender pro tanto.
(ce) Any Lender may at any time sell to one or more commercial banks Lenders or other Persons not Affiliates of Culligan the Borrower (a "Participant") participating interests in any LoanLoans, the Commitment of such that Lender and the other interests of such that Lender (the "originating Originating Lender") hereunder and under the other Loan Documents; provided, however, that (i) the originating Originating Lender's obligations under this Agreement shall remain unchanged, (ii) the originating Originating Lender shall remain solely responsible for the performance of such obligations, (iii) the BorrowersBorrower, the Issuing Lender, the Swing Line Fronting Lender and the Administrative Agent shall continue to deal solely and directly with the originating Originating Lender in connection with the originating Originating Lender's rights and obligations under this Agreement and the other Loan Documents, Documents and (iv) no Lender shall transfer or grant any participating interest under which the Participant has rights to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment, consent or waiver would require unanimous the consent of the Lenders Originating Lender as an affected Lender as described in the first proviso to clause (a)(i) of Section 1211.
1. In the case of any such participation, the Participant shall be entitled to the benefit of Sections 4.1, 4.3, 4.4, 4.6 4.3 and 12.5 11.5 as though it were also a Lender hereunder, but shall not be entitled to any greater amount than would be payable to the original Lender if no participation had been made and if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, the each Participant shall be deemed to have the right of set-off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement.
(df) Subject to Section 11.9, the Borrower authorizes each Lender to disclose to any Eligible Assignee or Participant (each, a "Transferee") and any prospective Transferee any and all financial information in such Lender's possession concerning the Borrower and its Affiliates that has been delivered to such Lender by or on behalf of the Borrower in connection with such Lender's credit evaluation of the Borrower and its Affiliates prior to such Transferee or prospective Transferee becoming a party to this Agreement; provided, however, that neither the Administrative Agent nor any Lender shall provide to any Transferee or prospective Transferee any of the Confidential Information unless such person shall have previously executed a confidentiality agreement containing substantially similar terms to the terms specified in Section 11.9.
(g) Notwithstanding any other provision in this Agreement, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement and any the Note held by it in favor of any Federal Reserve Bank in accordance with Regulation A of the FRB or U.S. Treasury Regulation 31 CFR (S)203.14ss.203.14, or any successor thereto, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law.
Appears in 1 contract
Samples: Credit Agreement (E&s Holdings Corp)
Assignments, Participations, etc. (a) Any Lender Bank may, with the written consent of Culliganthe Company (except no consent shall be required from the Company when a Default or an Event of Default Exists, the Administrative Agent, the Issuing Lender and the Swing Line Lender in any event shall not be unreasonably withheld) and Agent (which consents consent shall not be unreasonably withheld), at any time assign and delegate to one or more Eligible Assignees (provided that no written consent of Culligan, the Administrative Agent, the Issuing Lender Company or the Swing Line Lender Agent shall be required in connection with any assignment and delegation by a Lender Bank to an Eligible Assignee that is an Affiliate of such Lender (so long as such assignment will not result in any increased costs to the Borrowers) or to another LenderBank) (each an "Assignee") all all, or any ratable part of all, of the Loans, the Commitment, the L/C Obligations Commitments and the other rights and obligations of such Lender Bank hereunder, in a minimum Dollar Equivalent amount of U.S. $5,000,000 or2,500.000: provided, if lesshowever, that the entire amount of the Loans, Commitment, L/C Obligations and other rights and obligations of such Lender hereunder; provided that (i) the Borrowers Company and the Administrative Agent may continue to deal solely and directly with such Lender Bank in connection with the interest so assigned to an Assignee until (xi) written notice of such assignment, together with payment instructions, addresses and related information with respect to the Assignee, shall have been given to Culligan the Company and the Administrative Agent by such Lender Bank and the Assignee; (yii) such Lender Bank and the its Assignee shall have delivered to the Borrowers Company and the Administrative Agent an Assignment and Acceptance in substantially the form of attached hereto as Exhibit H ("Assignment and Acceptance") I together with any Note or Notes subject to such assignment; assignment and (ziii) such Lender the assignor Bank or the Assignee shall have has paid to the Administrative Agent a processing fee in the amount of U.S. $3,000; and (ii) concurrently with such assignment, the assignor Lender shall assign to the Assignee a proportionate share of its loans, commitment and other rights and obligations under the Long-Term Credit Agreement3,500.
(b) From and after the date that the Administrative Agent notifies the assignor Lender Bank that it has received (and, to the extent required, and provided its consent and received the consents of Culligan, the Issuing Lender and the Swing Line Lender with respect to) an executed Assignment and Acceptance and payment of the above-referenced processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it and obligations hereunder have been assumed by it pursuant to such Assignment and Acceptance, shall have the rights and obligations of a Lender Bank under the Loan Documents, and (ii) the assignor Lender Bank shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under the Loan Documents.
(c) Within five Business Days after its receipt of notice by the Agent that it has received an executed Assignment and Acceptance and payment of the processing fee, the Company shall upon request execute and deliver to the Agent, new Notes evidencing such Assignee's assigned Loans and Commitment and, if the assignor Bank has retained a portion of its Loans and its Commitment, replacement Notes in the principal amount of the Revolving Loans retained by the assignor Bank (such Notes to be in exchange for, but not in payment of, the Notes held by such Bank). Immediately upon each Assignee's making its processing fee payment under the Assignment and Acceptance, this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitments of the assigning Bank pro tanto.
(d) Any Lender Bank may at any time sell to one or more commercial banks or other Persons not Affiliates of Culligan the Company (a "Participant") participating interests in any LoanLoans, the Commitment of such Lender that Bank and the other interests of such Lender that Bank (the "originating LenderBank") hereunder and under the other Loan Documents; provided, however, that (i) the originating LenderBank's obligations under this Agreement shall remain unchanged, (ii) the originating Lender Bank shall remain solely responsible for the performance of such obligations, (iii) the Borrowers, the Issuing Lender, the Swing Line Lender Company and the Administrative Agent shall continue to deal solely and directly with the originating Lender Bank in connection with the originating LenderBank's rights and obligations under this Agreement and the other Loan Documents, and (iv) no Lender Bank shall transfer or grant any participating interest under which the Participant has rights to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment, consent or waiver would require unanimous consent of the Lenders Banks as described in the first proviso to Section 1210.
1. In the case of any such participation, the Participant shall be entitled to the benefit of Sections 4.13.1, 4.3, 4.4, 4.6 3.3 and 12.5 10.5 as though it were also a Lender Bank hereunder, except that no Participant shall be entitled to any greater amount than the Bank from which such participating interest was purchased would have been entitled, and if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, the each Participant shall be deemed to have the right of set-off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender Bank under this Agreement.
(de) Notwithstanding any other provision in this Agreement, any Lender Bank may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement and any the Note held by it in favor of any Federal Reserve Bank in accordance with Regulation A of the FRB or U.S. Treasury Regulation 31 CFR (S)203.14ss.203.14, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law.
Appears in 1 contract
Assignments, Participations, etc. (a) Any Lender Bank may, with the written consent of Culligan, the Administrative Agent, Companies at all times other than during the Issuing Lender existence of an Event of Default and the Swing Line Lender Agent (which consents consent of the Companies may be withheld for any reason, and which consent of the Agent shall not be unreasonably withheld), ) at any time assign and delegate to one or more Eligible Assignees (provided that no written consent of Culligan, the Administrative Agent, the Issuing Lender or the Swing Line Lender Agent shall be required in connection with any assignment and delegation by a Lender Bank to an Eligible Assignee that is an a Bank Affiliate of such Lender (so long as Bank and the consent of the Companies in connection with any assignment and delegation by a Bank to a Bank Affiliate of such assignment will Bank shall not result in any increased costs to the Borrowers) or to another Lenderbe unreasonably withheld) (each an "Assignee") all all, or any ratable part of all, of the Loans, the Commitmentcommitment to make Loans, the L/C Obligations and the other rights and obligations of such Lender Bank hereunder, in a minimum Dollar Equivalent amount of U.S. $5,000,000 or20,000,000; provided, if lesshowever, the entire amount of the Loans, Commitment, L/C Obligations and other rights and obligations of such Lender hereunder; provided that (i) the Borrowers Companies and the Administrative Agent may continue to deal solely and directly with such Lender Bank in connection with the interest so assigned to an Assignee until (xA) written notice of such assignment, together with payment instructions, addresses and related information with respect to the Assignee, shall have been given to Culligan the Companies and the Administrative Agent by such Lender Bank and the Assignee; and (yB) such Lender Bank and the its Assignee shall have delivered to the Borrowers Companies and the Administrative Agent an Assignment and Acceptance in the form of Exhibit H ("Assignment and Acceptance") together with and any Note or Notes subject to such assignment; and (z) such Lender or the Assignee shall have paid to the Administrative Agent a processing fee in the amount of U.S. $3,000; and (ii) concurrently with such assignment, the assignor Lender shall assign to the Assignee a proportionate share of its loans, commitment and other rights and obligations under the Long-Term Credit Agreement.
(b) From and after the date that the Administrative Agent notifies the assignor Lender Bank that it has received (and, to the extent required, provided its consent and received the consents of Culligan, the Issuing Lender and the Swing Line Lender with respect to) an executed Assignment and Acceptance and payment of the above-referenced processing feefee of $3,500, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it and obligations hereunder have been assumed by it pursuant to such Assignment and Acceptance, shall have the rights and obligations of a Lender Bank under the Loan Documents, and (ii) the assignor Lender Bank shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under the Loan Documents.
(c) Within five Business Days after its receipt of notice by the Agent that it has received an executed Assignment and Acceptance and payment of the processing fee, the Companies shall execute and deliver to the Agent, new Notes evidencing such Assignee's assigned Loans and commitment to make Loans and, if the assignor Bank has retained a portion of its Loans and its commitment to make Loans, replacement Notes in the principal amount of the Loans retained by the assignor Bank (such Notes to be in exchange for, but not in payment of, the Notes held by such Bank). Immediately upon each Assignee's making its payment under the Assignment and Acceptance, this Agreement, shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the commitment to make Loans arising therefrom. The commitment to make Loans allocated to each Assignee shall reduce such commitment to make Loans of the assigning Bank pro tanto.
(d) Any Lender Bank may at any time sell to one or more commercial banks or other Persons not Affiliates of Culligan (a "Participant") participating interests in any LoanLoans, the Commitment commitment of such Lender that Bank to make Loans and the other interests of such Lender that Bank (the "originating LenderOriginating Bank") hereunder and under the other Loan Documents; provided, however, that (i) the originating LenderOriginating Bank's obligations under this Agreement shall remain unchanged, (ii) the originating Lender Originating Bank shall remain solely responsible for the performance of such obligations, (iii) the Borrowers, the Issuing Lender, the Swing Line Lender Companies and the Administrative Agent shall continue to deal solely and directly with the originating Lender Originating Bank in connection with the originating LenderOriginating Bank's rights and obligations under this Agreement and the other Loan Documents, and (iv) no Lender Bank shall transfer or grant any participating interest under which the Participant has shall have rights to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment, consent or waiver would require unanimous consent of the Lenders as described in the first proviso to Section 1210.
101. In the case of any such participation, the Participant shall be entitled to not have any rights under this Agreement, or any of the benefit of Sections 4.1, 4.3, 4.4, 4.6 and 12.5 as though it were also a Lender hereunderother Loan Documents, and all amounts payable by the Companies hereunder shall be determined as if such Bank had not sold such participation; except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, the each Participant shall be deemed to have the right of set-off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender Bank under this Agreement.
(di) to file a registration statement with the SEC or apply to qualify the Loans or the Notes under the blue sky law of any states or (ii) to qualify to do business in any state in which the Companies are not so qualified.
(e) Each Bank agrees to take normal and reasonable precautions and exercise due care to maintain the confidentiality of all non-public information identified as confidential by and provided to it by either or both of the Companies or any Subsidiary of either Company, or by the Agent on such Company's or Subsidiary's behalf, in connection with this Agreement or any other Loan Document, and neither it nor any of its Affiliates shall use any such information for any purpose or in any manner other than pursuant to the terms contemplated by this Agreement; except to the extent such information (i) was or becomes generally available to the public other than as a result of a disclosure by the Bank, or (ii) was or becomes available on a non-confidential basis from a source other than either Company, provided that such source is not bound by a confidentiality agreement with such Company known to the Bank; provided further, however, that any Bank may disclose such information (A) at the request or pursuant to any requirement of any Governmental Authority to which the Bank is subject or in connection with an examination of such Bank by any such Governmental Authority; (B) pursuant to subpoena or other court process; (C) when required to do so in accordance with the provisions of any applicable Requirement of Law; (D) to such Bank's independent auditors and other professional advisors and (E) to any Bank Affiliate which is controlled by the transferring Bank, which shall cause such Bank Affiliate to keep confidential the non-public information identified by and provided to the transferring Bank as confidential on the same terms and conditions applicable to such transferring Bank. Notwithstanding the foregoing, each Company authorizes each Bank to disclose to any Participant or Assignee (each, a "Transferee") and to any prospective Transferee, such financial and other information in such Bank's possession concerning such Company or its Subsidiaries which has been delivered to Agent or the Banks pursuant to this Agreement or which has been delivered to the Agent or the Banks by such Company in connection with the Banks' credit evaluation of such Company prior to entering into this Agreement; provided that, unless otherwise agreed by such Company, such Transferee agrees in writing to such Bank to keep such information confidential to the same extent required of the Banks hereunder.
(f) Notwithstanding any other provision in this Agreement, any Lender Bank may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement (and any the Note held by it it) in favor of any Federal Reserve Bank in accordance with Regulation A of the FRB Federal Reserve Board or U.S. Treasury Regulation 31 CFR (S)203.14Section 203.14, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law.
Appears in 1 contract
Assignments, Participations, etc. (a1) Any Lender may, with With the prior written consent of Culligan, the Administrative Agent, the Issuing Lender Lenders (with respect to assignments of Revolving Commitments and the Swing Line Lender (which Revolving Credit Exposure only) and, but only if there has not occurred and is continuing an Event of Default or Potential Default, MAC, in each case such consents shall not to be unreasonably withheld)withheld or delayed, any Lender may at any time assign and delegate to one or more Eligible Assignees (provided that (i) no written consent of Culligan, MAC or the Administrative Agent, the Issuing Lender or the Swing Line Lender Agent shall be required in connection with any assignment and delegation by a Lender to an Eligible Assignee that is an Affiliate of such Lender (so long as such assignment will not result in any increased costs to the Borrowers) or to another LenderLender or its Affiliate or an Approved Fund, (ii) MAC shall be deemed to have consented to any such assignment and delegation unless it shall have objected thereto by written notice to the Administrative Agent within 10 Business Days after having received notice thereof and (iii) MAC’s refusal to consent to an assignment to an assignee on the basis that MAC would be obligated to pay to the assignee pursuant to Section 2.7 an amount in excess of the amount payable to the applicable assignor pursuant to Section 2.7 immediately prior to such assignment is deemed to be reasonable) (each an "“Assignee"”) all or any part of such Lender’s rights and obligations under this Agreement (including all or a portion of its Commitment and the Loans, Loans at the Commitment, the L/C Obligations time owing to it) and the other rights and obligations of Obligations held by such Lender hereunder, in a minimum Dollar Equivalent amount of U.S. $5,000,000 or5 million (or (A) if such Assignee is another Lender or an Affiliate of a Lender, $1 million, or such lesser amount as agreed by the Administrative Agent; and (B) if lesssuch Lender’s Commitment (or Revolving Commitment and Term Loan Credit Exposure) is less than $5 million, one hundred percent (100%) thereof); provided, however, that MAC, the entire amount of Borrower, the LoansIssuing Lenders, Commitment, L/C Obligations and other rights and obligations of such Lender hereunder; provided that (i) the Borrowers Collateral Agent and the Administrative Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (xi) written notice of such assignment, together with payment instructions, addresses and related information with respect to the Assignee, shall have been given to Culligan the Borrower, the Issuing Lenders and the Administrative Agent by such Lender and the AssigneeAssignee and such assignment shall have been recorded in the Register in accordance with Section 11.8(1)(B); (yii) such Lender and the its Assignee shall have delivered to the Borrowers Borrower and the Administrative Agent an Assignment and Acceptance in the form of Exhibit H ("Assignment and Acceptance") together with any Note or Notes subject to such assignmentAgreement; and (ziii) such Lender or the Assignee shall have has paid to the Administrative Agent a processing fee in the amount of U.S. $3,000; 3,500. Notwithstanding anything herein to the contrary, unless a Potential Default or an Event of Default has occurred and (ii) concurrently with such is continuing, no assignment, transfer or participation may be made to a Disqualified Competitor absent the assignor prior written consent of MAC (which consent may be made in its sole and absolute discretion). The Administrative Agent and its Related Parties shall not be responsible or have any liability for, or have any duty to ascertain, inquire into, monitor or enforce compliance with the provisions hereof relating to Disqualified Competitors; provided that the list of Disqualified Competitors shall be posted for all Lenders or made available to any Lender shall assign to the Assignee a proportionate share of its loans, commitment and other rights and obligations under the Long-Term Credit Agreementupon request.
(bA) From and after the date that the Administrative Agent notifies the assignor Lender and the Borrower that it has received (and, to the extent required, provided its consent and received the consents of Culligan, the Issuing Lender and the Swing Line Lender with respect to) an executed Assignment and Acceptance Agreement and payment of the above-referenced processing fee, : (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned to it and obligations hereunder have been assumed by it pursuant to such Assignment and AcceptanceAcceptance Agreement, shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assignor Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and AcceptanceAcceptance Agreement, relinquish its rights and be released from its obligations under the Loan DocumentsDocuments (but shall be entitled to indemnification as otherwise provided in this Agreement with respect to any events occurring prior to the assignment) and (iii) this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments and Credit Exposures resulting therefrom.
(cB) Borrower, Administrative Agent and Lenders shall deem and treat the Persons listed as Lenders in the Register as the holders and owners of the corresponding Commitments and Loans listed therein for all purposes hereof, and no assignment or transfer of any such Commitment or Loan shall be effective, in each case, unless and until receipt by Administrative Agent of a fully executed Assignment and Acceptance Agreement effecting the assignment or transfer thereof, together with the required forms and certificates regarding tax matters and any fees payable in connection with such assignment, in each case, as provided in Section 11.8(1). Each assignment shall be recorded in the Register promptly following receipt by the Administrative Agent of the fully executed Assignment and Acceptance Agreement and all other necessary documents and approvals, prompt notice thereof shall be provided to Borrower and a copy of such Assignment and Acceptance Agreement shall be maintained, as applicable. Any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is listed in the Register as a Lender shall be conclusive and binding absent manifest error on any subsequent holder, assignee or transferee of the corresponding Commitments or Loans. The Administrative Agent will deliver to the Borrower a copy of the Register within five (5) Business Days after the Administrative Agent’s receipt of the Borrower’s written request therefor.
(2) Within five Business Days after its receipt of notice by the Administrative Agent that it has received an executed Assignment and Acceptance Agreement and payment of the processing fee (which notice shall also be sent by the Administrative Agent to each Lender), the Borrower shall, if requested by the Assignee, execute and deliver to the Administrative Agent, a new Note evidencing such Assignee’s Revolving Commitment and/or new Note evidencing such Assignee’s portion of the Term Loans.
(3) Any Lender may at any time time, without notice to or the consent of any other Person, sell to one or more commercial banks or other Persons not Affiliates of Culligan the Borrower (other than, unless a Potential Default or an Event of Default has occurred and is continuing, a Disqualified Competitor without the prior written consent of MAC) (a "“Participant"”) participating interests in all or any Loan, the Commitment portion of such Lender its rights and obligations under this Agreement and the other interests Loan Documents (including all or a portion of such Lender its Commitments and the Loans owing to it) (the "originating “Originating Lender") hereunder and under the other Loan Documents”); provided, however, that (i) the originating Originating Lender's ’s obligations under this Agreement shall remain unchanged, (ii) the originating Originating Lender shall remain solely responsible for the performance of such obligations, and (iii) the BorrowersBorrower, the Issuing LenderLenders, the Swing Line Lender Collateral Agent and the Administrative Agent shall continue to deal solely and directly with the originating Originating Lender in connection with the originating Originating Lender's ’s rights and obligations under this Agreement and the other Loan Documents, and (iv) no Lender shall transfer or grant any participating interest under which the Participant has rights to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment, consent or waiver would require unanimous consent of the Lenders as described in the first proviso to Section 12.
1. In the case of any such participation, the Participant shall be entitled to the benefit of Sections 4.12.5, 4.32.6 and 2.7 (and subject to the burdens of Sections 2.8 and 11.8 above), 4.4and the benefits of Section 2.10 (subject to the requirements and limitations therein, 4.6 and 12.5 including the requirements under Section 2.10(6) (it being understood that the documentation required under Section 2.10(6) shall be delivered to the participating Lender)) as though it were also a Lender hereunderthereunder, and if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, the each Participant shall be deemed to have the right of set-off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement, and Section 11.10 of this Agreement shall apply to such Participant as if it were a Lender party hereto.
(d4) Notwithstanding any other provision contained in this AgreementAgreement or any other Loan Document to the contrary, any Lender may at any time create a security interest in, or pledge, pledge and/or assign all or any portion of its rights and obligations under and interest in this Agreement and any Note held by it in favor the other Loan Documents (including all or a portion of its Commitments and the Loans owing to it) to any Federal Reserve Bank in accordance with or other central bank or the United States Treasury as collateral security pursuant to Regulation A of the FRB or U.S. Treasury Regulation 31 CFR (S)203.14, Board of Governors of the Federal Reserve System and any Operating Circular issued by such Federal Reserve Bank may enforce or other central bank, provided that any payment in respect of such pledged and assigned interests made by the Borrower to or for the account of the assigning and/or pledging Lender in accordance with the terms of this Agreement shall satisfy the Borrower’s obligations hereunder in respect to such assigned interests to the extent of such payment. No such pledge or security assignment shall release the assigning Lender from its obligations hereunder.
(5) Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain at one of its offices a register on which it enters the names and addresses of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under this Agreement (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any manner permitted Commitments, Loans or its other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that such Commitment, Loan or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register pursuant to the terms hereof as the owner of such participation for all purposes of this Agreement, notwithstanding notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
(6) No Lender may assign or otherwise transfer any of its rights or obligations hereunder except (i) to an assignee in accordance with the provisions of paragraph (1) of this Section 11.8, (ii) by way of participation in accordance with the provisions of paragraphs (3) and (5) of this Section 11.8, or (iii) by way of assignment of a security interest subject to the restrictions of paragraph (4) of this Section 11.8 (and any other attempted assignment or transfer by any party hereto shall be null and void).
(7) A Participant shall not be entitled to receive any greater payment under Section 2.7 or 2.10 than the applicable lawLender would have been entitled to receive with respect to the participation sold to such Participant, unless the sale of the participation to such Participant is made with MAC’s prior written consent.
Appears in 1 contract
Samples: Credit Agreement (Macerich Co)
Assignments, Participations, etc. (a) Any Lender may, with the written consent of Culligan, the Administrative Agent, the Issuing Lender and Bank, the Swing Line Lender (and, so long as no Default or Event of Default has occurred and is continuing, the Company, which consents shall not be unreasonably withheld), at any time assign and delegate to one or more Eligible Assignees (provided that no written consent of Culligan, the Administrative Agent, the Issuing Lender or Bank, the Swing Line Lender or the Company shall be required in connection with any assignment and delegation by a Lender to an Eligible Assignee that is an Affiliate of such Lender (so long as such assignment will not result in any increased costs to the Borrowers) or to another Lender) (each an "Assignee") all of, or any part of of, the Loans, the CommitmentCommitments, the L/C Obligations and the other rights and obligations of such Lender hereunder, in a minimum aggregate Dollar Equivalent amount of U.S. $5,000,000 (or, if less, the entire amount of such Lender's Loans and Commitments, and such Loans and Commitments may consist of the LoansRevolving Loan Commitments, Commitmentthe Term Loan Commitments and the Sterling Acquisition Loan Commitments as determined by the assigning Lender) calculated by aggregating the Commitments, Loans and L/C Obligations and other rights and obligations of such Lender hereunderheld by an Eligible Assignee which are Affiliates; provided provided, however, that (i) the Borrowers each Borrower and the Administrative Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (xi) written notice of such assignment, together with payment instructions, addresses and related information with respect to the Assignee, shall have been given to Culligan each Borrower and the Administrative Agent by such Lender and the Assignee; (yii) such Lender and the its Assignee shall have delivered to the Borrowers each Borrower and the Administrative Agent an Assignment and Acceptance in the form of Exhibit H E attached hereto ("Assignment and Acceptance") together with any Note or Notes subject to such assignment; assignment and (ziii) such the assignor Lender or the Assignee shall have has paid to the Administrative Agent a processing fee in the amount of U.S. $3,000; and (ii) concurrently with such assignment, the assignor Lender shall assign to the Assignee a proportionate share of its loans, commitment and other rights and obligations under the Long-Term Credit Agreement.
3,500. 126 136 (b) From and after the date that the Administrative Agent notifies the assignor Lender that it has received (and, to the extent required, and provided its consent and received the consents of Culligan, the Issuing Lender and the Swing Line Lender with respect to) an executed Assignment and Acceptance and payment of the above-referenced processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it and obligations hereunder have been assumed by it pursuant to such Assignment and Acceptance, shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assignor Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under the Loan DocumentsDocuments (other than with respect to any indemnification pursuant to Article IV or Section 12.05).
(c) Within five Business Days after its receipt of notice by the Administrative Agent that it has received an executed Assignment and Acceptance and payment of the processing fee (and provided that it consents to such assignment in accordance with Section 12.08(a)), the relevant Borrower shall execute and deliver to the Administrative Agent, new Notes evidencing such Assignee's assigned Loans and Commitments and, if the assignor Lender has retained a portion of its Loans and its Commitments, replacement Notes in the principal amount of the Loans retained by the assignor Lender (such Notes to be in exchange for, but not in payment of, the Notes held by such Lender). Immediately upon receipt by the Administrative Agent of the processing fee payment under the Assignment and Acceptance, this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments arising therefrom. The Commitments allocated to each Assignee shall reduce such Commitments of the assigning Lender pro tanto.
(d) Any Lender may at any time sell to one or more commercial banks or other Persons not Affiliates of Culligan a Borrower (a "Participant") participating interests in any LoanLoans, the Commitment Commitments of such that Lender and the other interests of such that Lender (the "originating Lender") hereunder and under the other Loan Documents; provided, however, that (i) the originating Lender's obligations under this Agreement shall remain unchanged, (ii) the originating Lender shall remain solely responsible for the performance of such obligations, (iii) the Borrowerseach Borrower, the Issuing LenderBank, the Swing Line Lender and the Administrative Agent shall continue to deal solely and directly with the originating Lender in connection with the originating Lender's rights and obligations under this Agreement and the other Loan Documents, and (iv) no Lender shall transfer or grant any participating interest under which the Participant has rights to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment, consent or waiver would require unanimous consent of the Lenders as described in required pursuant to the first proviso to Section 12.
101. In the case of any such participation, the Participant shall be entitled to not have any rights under this Agreement, or any of the benefit of Sections 4.1, 4.3, 4.4, 4.6 and 12.5 as though it were also a Lender hereunderother Loan Documents, and all amounts payable by a Borrower hereunder shall be determined as if such Lender had not sold such participation; except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, the each Participant shall be deemed to have the right of set-off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement.
. 127 137 (de) Notwithstanding any other provision in this Agreement, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement and any Note the Notes held by it in favor of any Federal Reserve Bank in accordance with Regulation A of the FRB or U.S. Treasury Regulation 31 CFR (S)203.14Section 203.14, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law.
Appears in 1 contract
Assignments, Participations, etc. (a) Any Lender Bank may, with the written consent of Culligan, the Administrative Agent, Agent and the Issuing Lender and the Swing Line Lender (Bank, which consents shall not be unreasonably withheld), at any time assign and delegate to one or more Eligible Assignees (provided that no written consent of Culligan, the Administrative Agent, Agent or the Issuing Lender or the Swing Line Lender Bank shall be required in connection with any assignment and delegation by a Lender Bank to an Eligible Assignee that is an Affiliate of such Lender (so long as such assignment will not result in any increased costs to the Borrowers) or to another Lenderassigning Bank) (each an "Assignee") all all, or any ratable part of all, of the Loans, the Commitment, the L/C Obligations Commitments and the other rights and obligations of such Lender Bank hereunder, in a minimum Dollar Equivalent amount of U.S. the lesser of (i) $5,000,000 or, if less, or (ii) the entire full amount of the Loans, Commitment, L/C Obligations the Commitments and the other rights and obligations of such Lender hereunderBank; provided provided, however, that (i) the Borrowers Borrower and the Administrative Agent may continue to deal solely and directly with such Lender Bank in connection with the interest so assigned to an Assignee until (xi) written notice of such assignment, together with payment instructions, addresses and related information with respect to the Assignee, shall have been given to Culligan the Borrower and the Administrative Agent by such Lender Bank and the Assignee; (yii) such Lender Bank and the its Assignee shall have delivered to the Borrowers Borrower and the Administrative Agent an Assignment and Acceptance in the form of Exhibit H E ("Assignment and Acceptance") together with ), requiring, among other things, that any Note or Notes subject Assignee agree to such assignment; be bound by the UK/US Intercreditor Agreement and the Securitization Intercreditor Agreement and (ziii) such Lender the assignor Bank or the Assignee shall have has paid to the Administrative Agent a processing fee in the amount of U.S. $3,000; 3,500, and (ii) concurrently with such assignmentprovided, the assignor Lender further any assignment shall assign be subject to the Assignee a proportionate share restrictions of its loans, commitment and other rights and obligations under the Long-Term Credit Warrant Agreement.
(b) From and after the date that the Administrative Agent notifies the assignor Lender Bank that it has received (and, to the extent required, and provided its consent and received the consents of Culligan, the Issuing Lender and the Swing Line Lender with respect to) an executed Assignment and Acceptance and payment of the above-above- referenced processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it and obligations hereunder have been assumed by it pursuant to such Assignment and Acceptance, shall have the rights and obligations of a Lender Bank under the Loan Documents, and (ii) the assignor Lender Bank shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under the Loan Documents.
(c) Immediately upon each Assignee's making its processing fee payment under the Assignment and Acceptance, this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitments of the assigning Bank pro tanto.
(d) Any Lender Bank may at any time sell to one or more commercial banks or other Persons not Affiliates of Culligan the Borrower (a "Participant") participating interests in any LoanLoans, the Commitment of such Lender that Bank and the other interests of such Lender that Bank (the "originating LenderOriginating Bank") hereunder and under the other Loan Documents; provided, however, that (i) the originating LenderOriginating Bank's obligations under this Agreement shall remain unchanged, (ii) the originating Lender Originating Bank shall remain solely responsible for the performance of such obligations, (iii) the Borrowers, the Issuing Lender, the Swing Line Lender Borrower and the Administrative Agent shall continue to deal solely and directly with the originating Lender Originating Bank in connection with the originating LenderOriginating Bank's rights and obligations under this Agreement and the other Loan Documents, and (iv) no Lender Bank shall transfer or grant any participating interest under which the Participant has rights to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment, consent or waiver would require unanimous consent of the Lenders Banks as described in the first proviso to Section 1210.
1. In the case of any such participation, the Participant shall be entitled to the benefit of Sections 4.1, 4.3, 4.4, 4.6 4.3 and 12.5 10.5 as though it were also a Lender hereunder, and Bank hereunder provided that all amounts payable by the Borrower hereunder shall be determined as if such Originating Bank had not sold such participation. If amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, the each Participant shall be deemed to have the right of set-off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender Bank under this Agreement.
(de) Notwithstanding any other provision in this Agreement, any Lender Bank may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement and any Note held by it in favor of any Federal Reserve Bank in accordance with Regulation A of the FRB or U.S. Treasury Regulation 31 CFR (S)203.14'203.14, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law.
Appears in 1 contract
Assignments, Participations, etc. (a) Any Lender may, with the written consent of Culliganthe Borrower, the Administrative Agent, the Issuing Swingline Lender and the Swing Line Lender (each Issuing Lender, which consents shall not be unreasonably withheld), at any time assign and delegate to one or more Eligible Assignees (provided that no written consent of Culligan, the Administrative Agent, the Issuing Lender or the Swing Line Lender Borrower shall be required either in connection with any assignment and delegation by a Lender to an Eligible Assignee that is an a Lender Affiliate of such Lender (so long as such assignment will not result in or at any increased costs to the Borrowers) or to another Lendertime that an Event of Default shall exist) (each an "Assignee") all all, or any ratable part of all, of the Loans, the Commitment, the L/C Obligations Revolving Commitment and Term Commitment and the other rights and obligations of such Lender hereunder; provided, however, that any such assignment to an Eligible Assignee which is not a Lender shall be in a minimum Dollar Equivalent amount equal to the lesser of U.S. $5,000,000 or, if less, or the entire full amount of the Loansassignor Lender's Commitment; and provided, Commitmentstill further, L/C Obligations and other rights and obligations of such that the Borrower, the Issuing Lenders, the Swingline Lender hereunder; provided that (i) the Borrowers and the Administrative Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (xi) written notice of such assignment, together with payment instructions, addresses and related information with respect to the Assignee, shall have been given to Culligan the Borrower and the Administrative Agent by such Lender and the Assignee; (yii) such Lender and the its Assignee shall have delivered to the Borrowers Borrower and the Administrative Agent an Assignment and Acceptance in the form of Exhibit H L ("Assignment and Acceptance") together with any Note or Notes subject to such assignment); and (ziii) such in the case of any assignment to an Assignee which is not already a Lender, the assignor Lender or the Assignee shall have has paid to the Administrative Agent a processing fee in the amount of U.S. $3,0003,500; and (ii) concurrently with such assignmentprovided, still further, that any assignment hereunder must include an equal percentage of the assignor Lender shall assign to the Assignee a proportionate share Lender's Revolving Commitment, Term Commitment, Revolving Loans, Letter of its loans, commitment Credit Obligations and other rights and obligations under the Long-Term Credit AgreementLoans.
(b) From and after the date that the Administrative Agent notifies the assignor Lender that it has received the requirements of paragraph (and, to the extent required, provided its consent and received the consents of Culligan, the Issuing Lender and the Swing Line Lender with respect toa) an executed Assignment and Acceptance and payment of the above-referenced processing feeabove are satisfied, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it and obligations hereunder have been assumed by it pursuant to such Assignment and Acceptance, shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assignor Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under the Loan Documents.
(c) Any . Anything herein to the contrary notwithstanding, any Lender may at any time sell assigning all of its Loans, Commitments and other rights and obligations hereunder to one or more commercial banks or other Persons not Affiliates of Culligan (a "Participant") participating interests in any Loan, the Commitment of such Lender and the other interests of such Lender (the "originating Lender") hereunder and under the other Loan Documents; provided, however, that (i) the originating Lender's obligations under this Agreement shall remain unchanged, (ii) the originating Lender shall remain solely responsible for the performance of such obligations, (iii) the Borrowers, the Issuing Lender, the Swing Line Lender and the Administrative Agent an Assignee shall continue to deal solely and directly with the originating Lender in connection with the originating Lender's rights and obligations under this Agreement and the other Loan Documents, and (iv) no Lender shall transfer or grant any participating interest under which the Participant has rights to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment, consent or waiver would require unanimous consent of the Lenders as described in the first proviso to Section 12.
1. In the case of any such participation, the Participant shall be entitled to have the benefit of Sections 4.1, 4.3, 4.4, 4.6 and 12.5 as though it were also a Lender hereunder, and if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, the Participant shall be deemed to have the right of set-off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreementall indemnities hereunder following such assignment.
(d) Notwithstanding any other provision in this Agreement, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement and any Note held by it in favor of any Federal Reserve Bank in accordance with Regulation A of the FRB or U.S. Treasury Regulation 31 CFR (S)203.14, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law.
Appears in 1 contract
Assignments, Participations, etc. (a) Any Lender may, with the written consent of Culligan, the Administrative Agent, the Issuing Lender and the Swing Line Lender (which consents shall not be unreasonably withheld), at any time time, assign and delegate to one or more Eligible Assignees (provided that no written consent assignees, other than the Company or any of Culliganits Affiliates or Subsidiaries, the Administrative Agent, the Issuing Lender or the Swing Line Lender shall be required in connection with any assignment and delegation by a Lender to an Eligible Assignee that is an Affiliate of such Lender (so long as such assignment will not result in any increased costs to the Borrowers) or to another Lender) (each an "“Assignee"”) all or any part of the Loans, the Commitment, the L/C Obligations its Loan and the other rights and obligations of such Lender hereunder, in a minimum Dollar Equivalent amount of U.S. $5,000,000 or, if less, the entire amount of the Loans, Commitment, L/C Obligations and other rights and obligations of such Lender hereunder; provided that (i) the Borrowers US$5,000,000. The Company and the Administrative Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until and the assignment will not be effective until: (xi) written notice of such assignment, together with payment instructions, addresses and related information with respect to the Assignee, shall have been given to Culligan the Company and the Administrative Agent by such the assigning Lender and the Assignee; (yii) such the assigning Lender and the its Assignee shall have delivered to the Borrowers Company and the Administrative Agent an Assignment and Acceptance substantially in the form of Exhibit H C ("an “Assignment and Acceptance") ”), together with any Note or Notes subject to such assignment; and (ziii) such the assigning Lender or the Assignee shall have has paid to the Administrative Agent a processing fee in the amount of U.S. $3,000; and US$3,500 (ii) concurrently with such assignmentprocessing fee being payable for all assignments, the assignor including, but not limited to, an assignment by a Lender shall assign to the Assignee a proportionate share of its loans, commitment and other rights and obligations under the Long-Term Credit Agreementanother Lender).
(b) From and after the date that the Administrative Agent notifies the assignor assigning Lender that it has received (and, to the extent required, and provided its consent and received the consents of Culligan, the Issuing Lender and the Swing Line Lender with respect to) an executed Assignment and Acceptance and payment of the above-referenced processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it and obligations hereunder have been assumed by it pursuant to such Assignment and Acceptance, shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assignor assigning Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under the Loan Documents.
(c) The Administrative Agent, acting solely for this purpose as an agent of the Company, shall maintain at the Administrative Agent’s Payment Office a copy of each Assignment and Acceptance delivered to it and a register for the recordation of the names and addresses of the Lenders, and principal amount of the Loans owing to, each Lender pursuant to the terms hereof from time to time (the “Register”). The entries in the Register shall be conclusive, absent manifest error, and the Company, the Administrative Agent and the Lenders may treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available for inspection by the Company and any Lender, at any reasonable time and from time to time upon reasonable prior notice.
(d) Within ten (10) Business Days after its receipt of notice by the Administrative Agent that it has received an executed Assignment and Acceptance and payment of the processing fee, the Company shall execute and deliver to the Administrative Agent a new Note or Notes in the amount of such Assignee’s assigned Loan and, if the assigning Lender has retained a portion of its Loan, replacement Notes for the assignor Lender (such Notes to be in exchange for, but not in payment of, the Notes held by the assigning Lender). Immediately upon each Assignee’s making its processing fee payment under the Assignment and Acceptance, this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Loans arising therefrom.
(e) Any Lender (the “originating Lender”) may at any time sell to one or more commercial banks or other Persons not Persons, other than the Company or any of its Affiliates of Culligan or Subsidiaries, (a "“Participant"”) participating interests in all or any Loan, the Commitment part of such Lender and the other interests of such Lender its Loan (the "originating Lender") hereunder and under the other Loan Documentseach a “Participation”); provided, however, that (i) the originating Lender's ’s obligations under this Agreement shall remain unchanged, (ii) the originating Lender shall remain solely responsible for the performance of such obligations, (iii) the Borrowers, the Issuing Lender, the Swing Line Lender Company and the Administrative Agent shall continue to deal solely and directly with the originating Lender in connection with the originating Lender's ’s rights and obligations under this Agreement and the other Loan Documents, Documents and (iv) no Lender shall transfer or grant any participating interest under which the Participant has rights to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment, consent or waiver would require unanimous consent of the Lenders as described in the first proviso to Section 12.
110.01(a) (Amendments and Waivers). In the case of any such participation, the Participant Lender selling such participation shall be entitled to agree to pay over to the benefit Participant any amounts paid to such Lender pursuant to Section 3.01 (Taxes), Section 3.04 (Increased Costs and Reduction of Sections 4.1, 4.3, 4.4, 4.6 Return) and 12.5 as though it were also a Lender hereunder, Section 3.05 (Funding Losses) and if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the Participant shall fullest extent permitted by law, be deemed to have the right of set-off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement.
(d) Notwithstanding any other provision in this Agreement, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement and any Note held by it in favor of any Federal Reserve Bank in accordance with Regulation A of the FRB or U.S. Treasury Regulation 31 CFR (S)203.14, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law.this
Appears in 1 contract
Assignments, Participations, etc. (a) Any Lender Bank may, with the written consent of Culligan, the Administrative Borrower and the Agent, which consent of the Issuing Lender and the Swing Line Lender (which consents Borrower shall not be unreasonably withheld), at any time assign and delegate to one or more Eligible Assignees (provided provided, that no written consent of Culligan, the Administrative Agent, the Issuing Lender Borrower or the Swing Line Lender Agent shall be required in connection with any assignment and delegation by a Lender Bank to (x) an Eligible Assignee that is an Affiliate of such Lender Bank or (so long as such assignment will not result in any increased costs to the Borrowersy) or to another Lender) Bank (each an "“Assignee"”)) all all, or any ratable part of all, of the Loans, the Commitment, the L/C Obligations Loans and the other rights and obligations of such Lender Bank hereunder, in a minimum Dollar Equivalent amount of U.S. $5,000,000 or5,000,000; provided, if lesshowever, that the entire amount of the Loans, Commitment, L/C Obligations and other rights and obligations of such Lender hereunder; provided that (i) the Borrowers Borrower and the Administrative Agent may continue to deal solely and directly with such Lender Bank in connection with the interest so assigned to an Assignee until (xi) written notice of such assignment, together with payment instructions, addresses and related information with respect to the Assignee, shall have been given to Culligan the Borrower and the Administrative Agent by such Lender Bank and the Assignee; (yii) such Lender Bank and the its Assignee shall have delivered to the Borrowers Borrower and the Administrative Agent an Assignment and Acceptance in the form of Exhibit H F ("an “Assignment and Acceptance"”) together with any Note or Notes subject to such assignment; and (ziii) such Lender the assignor Bank or the Assignee shall have has paid to the Administrative Agent a processing fee in the amount of U.S. $3,000; and (ii) concurrently with such assignment, the assignor Lender shall assign to the Assignee a proportionate share of its loans, commitment and other rights and obligations under the Long-Term Credit Agreement4,000.
(b) From and after the date that the Administrative Agent notifies the assignor Lender Bank that it has received (and, to the extent required, provided its consent and received the consents of Culligan, the Issuing Lender and the Swing Line Lender Borrower and the Agent have provided their consent with respect to) an executed Assignment and Acceptance and payment of the above-referenced processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it and obligations hereunder have been assumed by it pursuant to such Assignment and Acceptance, shall have the rights and obligations of a Lender Bank under the Loan Documents, and (ii) the assignor Lender Bank shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under the Loan DocumentsDocuments (and, in the case of an Assignment and Acceptance covering all of the assigning Bank’s rights and obligations under this Agreement, such Bank shall cease to be a party hereto but shall continue to be entitled to the benefits of Sections 4.1, 4.3, 4.4, 12.4 and 12.5 with respect to facts and circumstances occurring prior to the effective date of such assignment).
(c) Within five Business Days after its receipt of notice by the Agent that it has received an executed Assignment and Acceptance and payment of the processing fee (and provided, that the Borrower consents to such assignment in accordance with Section 12.9(a)), the Borrower shall, if requested by the Assignee or the assignor Bank thereunder, execute and deliver to the Agent new Notes evidencing such Assignee’s assigned Loans and, if the assignor Bank has retained a portion of its Loans, replacement Notes in the principal amount of the Loans retained by the assignor Bank (such Notes to be in exchange for, but not in payment of, the Notes held by such Bank) and the assignor Bank shall deliver its Note or Notes marked “exchanged” or “cancelled,” as applicable, to the Agent. Immediately upon payment of the processing fee payment under the Assignment and Acceptance and the satisfaction of the other conditions set forth in Section 12.9(a), this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee.
(d) The Agent shall maintain at its address referred to in Schedule 12.2 a copy of each Assignment and Acceptance delivered to and accepted by it and a register for the recordation of the names and addresses of the Banks, and principal amount of the Loans owing to, each Bank from time to time (the “Register”). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Agent and the Banks may treat each Person whose name is recorded in the Register as a Bank hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Bank at any reasonable time and from time to time upon reasonable prior notice. Any Lender assignment of any Loan or other obligations shall be effective only upon an entry with respect thereto being made in the Register.
(e) Any Bank may at any time sell to one or more commercial banks or other Persons not Affiliates of Culligan the Borrower (a "“Participant"”) participating interests in any Loan, the Commitment of such Lender Loans and the other interests of such Lender that Bank (the "originating Lender"“Originating Bank”) hereunder and under the other Loan Documents; provided, however, that (i) the originating Lender's Originating Bank’s obligations under this Agreement shall remain unchanged, (ii) the originating Lender Originating Bank shall remain solely responsible for the performance of such obligations, (iii) the BorrowersBorrower, the Issuing Lender, the Swing Line Lender Agent and the Administrative Agent other Banks shall continue to deal solely and directly with the originating Lender Originating Bank in connection with the originating Lender's Originating Bank’s rights and obligations under this Agreement and the other Loan Documents, . Any agreement or instrument pursuant to which a Bank sells such a participation shall provide that such Bank shall retain the sole right to enforce this Agreement and (iv) no Lender shall transfer or grant any participating interest under which the Participant has rights to approve any amendment toamendment, or any consent modification or waiver with respect toof any provision of this Agreement; provided that such agreement or instrument may provide that such Bank will not, this Agreement or any other Loan Document, except to without the extent such amendment, consent or waiver would require unanimous consent of the Lenders as Participant, agree to any amendment, waiver or other modification described in the first proviso to Section 12.
112.1 that directly affects such Participant. In the case of any such participation, the Participant shall be entitled to the benefit of Sections 4.1, 4.3, 4.4, 4.6 4.4 and 12.5 as though it were also a Lender hereunderBank hereunder (but not in any greater amounts than would have been payable to the Bank selling the participation if no participation were sold), and not have any rights under this Agreement, or any of the other Loan Documents, and all amounts payable by the Borrower hereunder shall be determined as if such Bank had not sold such participation; except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, the each Participant shall be deemed to have the right of set-off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender Bank under this Agreement, provided such Participant agrees to be subject to Section 2.14 as though it were a Bank.
(df) Notwithstanding any other provision in this Agreement, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest Nothing contained in this Agreement and any Note held by it shall prevent a Bank from pledging its interest in favor of any its Loans to a Federal Reserve Bank in the Federal Reserve System of the United States in accordance with Regulation A of the FRB or U.S. Treasury Regulation 31 CFR (S)203.14, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law.
(g) After payment in full of, and satisfaction of all Obligations under, any Note, the Bank or other party holding such Note agrees to promptly return such Note marked “Paid in Full” to the Borrower.
(h) Notwithstanding the foregoing provisions of this Section 12.9, no assignment or participation may be made if such assignment or participation involves, or could involve, the use of assets that constitute, or may be deemed under ERISA, the Code or any other applicable law, or any ruling or regulation issued thereunder, or any court decision, to constitute the assets of any employee benefit plan (as defined in section 3(3) of ERISA) or any plan as defined in section 4975(e)(1) of the Code).
Appears in 1 contract
Assignments, Participations, etc. (a) Subject to Sections 12.08(b) and 12.08(e):
(i) Any Lender may, may with the written prior consent of Culliganthe Company, the Administrative Agent, and the Issuing Lender and the Swing Line Lender Bank (which consents will not be unreasonably withheld and which consent of the Company shall not be unreasonably withheld), required if a Default or Event of Default exists) at any time assign and delegate to one or more Eligible Assignees (provided that no written consent of Culligan, the Administrative Agent, the Issuing Lender or the Swing Line Lender shall be required in connection with any assignment and delegation by a Lender to an Eligible Assignee that is an Affiliate of such Lender (so long as such assignment will not result in any increased costs to the Borrowers) or to another Lender) (each an "Assignee") all or any part fraction of the Loans, the Commitment, the L/C Obligations its Commitment and the other rights and obligations of such Lender hereunder, outstanding Committed Loans in a minimum Dollar Equivalent amount of U.S. $5,000,000 25,000,000 and in multiples of $1,000,000 in excess thereof or, if lessits Commitment is less than $25,000,000, in the entire amount of its Commitment.
(ii) Any Lender may without the prior consent of the Company assign to another Lender all or any fraction of its Commitment and outstanding Committed Loans in a minimum amount of $5,000,000 and in multiples of $1,000,000 in excess thereof or, if the Commitment is less than $5,000,000, in the amount of its Commitment.
(iii) Any Lender may at any time assign all or any portion of its rights under this Agreement and any note issued pursuant to Section 2.05 to a Federal Reserve Bank; provided, however, that no such assignment shall release any Lender from its obligations hereunder.
(iv) Any Lender, if so requested by the Company under Section 5.09, shall assign to another Eligible Assignee its entire Commitment and all outstanding Committed Loans.
(v) Except as provided in Section 12.08(a)(iii), Commitmentno Lender may assign any Bid Loans made by it hereunder except to another Lender or to any other Person to which it is also assigning all or a fraction of its Commitment and outstanding Committed Loans pursuant to Section 12.08(a)(i). sf-712846 67
(b) No assignment shall become effective, L/C Obligations and other rights and obligations of such Lender hereunder; provided that (i) the Borrowers and the Administrative Company and the Agent may shall be entitled to continue to deal solely and directly with such each Lender in connection with the interest interests so assigned by such Lender to an Assignee Assignee, until (xi) such Lender and such Assignee shall have executed an Assignment and Assumption Agreement substantially in the form of Exhibit 12.08(b) and written notice of such assignment, together with payment instructions, addresses addresses, and related information with respect to the Assignee, such Assignee shall have been given to Culligan the Company and the Administrative Agent by such Lender and the such Assignee; (y) such Lender and the Assignee shall have delivered to the Borrowers and the Administrative Agent an Assignment and Acceptance , in substantially the form of Attachment A to Exhibit H 12.08 (a "Assignment and AcceptanceNotice of Assignment"); (ii) together with any Note or Notes subject to such assignment; and (z) such Lender or the Assignee shall have paid to the Administrative Agent a processing fee in the amount of U.S. $3,0003,500 shall have been paid to the Agent by the assignor Lender or the Assignee; and (iii) either (A) five Business Days shall have elapsed after receipt by the Agent of the items referred to in clauses (i) and (ii) concurrently with such assignmentor (B) if earlier, the Agent has notified the assignor Lender shall assign to and the Assignee a proportionate share of its loans, commitment receipt of the items mentioned in clauses (i) and other rights (ii) and obligations under that it has acknowledged the Long-Term Credit Agreementassignment by countersigning the Notice of Assignment.
(bc) From and after the effective date that the Administrative Agent notifies the assignor Lender that it has received (and, to the extent required, provided its consent and received the consents of Culligan, the Issuing Lender and the Swing Line Lender with respect to) an executed Assignment and Acceptance and payment of the above-referenced processing feeany assignment hereunder, (i) the Assignee thereunder shall be deemed automatically to have become a party hereto and, to the extent that rights and obligations hereunder have been assigned to it and obligations hereunder have been assumed such Assignee by it pursuant to such Assignment and Acceptancethe assignor Lender, shall have the rights and obligations of a Lender hereunder and under the each other Loan DocumentsDocument, and (ii) the assignor Lender shallLender, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptancethe Assignee, relinquish its rights and shall be released from its future obligations hereunder and under the each other Loan DocumentsDocument.
(cd) Any Subject to Section 12.08(e), any Lender may at any time sell to one or more commercial banks financial institutions or other Persons not Affiliates (each of Culligan (such Persons being herein called a "Participant") participating interests in any Loanof the Loans, the its Commitment of such Lender and the or other interests of such Lender (the "originating Lender") hereunder and under the other Loan Documentshereunder; provided, however, that (i) the originating Lender's no participation contemplated in this Section 12.08(d) shall relieve such Lender from its Commitment or its other obligations hereunder or under this Agreement shall remain unchanged, (ii) the originating Lender shall remain solely responsible for the performance of such obligations, (iii) the Borrowers, the Issuing Lender, the Swing Line Lender and the Administrative Agent shall continue to deal solely and directly with the originating Lender in connection with the originating Lender's rights and obligations under this Agreement and the other Loan Documents, and (iv) no Lender shall transfer or grant any participating interest under which the Participant has rights to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment, consent or waiver would require unanimous consent of the Lenders as described in the first proviso to Section 12.
1. In the case of any such participation, the Participant shall be entitled to the benefit of Sections 4.1, 4.3, 4.4, 4.6 and 12.5 as though it were also a Lender hereunder, and if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, the Participant shall be deemed to have the right of set-off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement.
(d) Notwithstanding any other provision in this Agreement, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement and any Note held by it in favor of any Federal Reserve Bank in accordance with Regulation A of the FRB or U.S. Treasury Regulation 31 CFR (S)203.14, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law.;
Appears in 1 contract
