Benefit of Agreement Assignments and Participations. (a) This Agreement shall be binding upon and inure to the benefit of the Borrower, the Lenders and the Agent and their respective successors and permitted assigns, and all subsequent holders of any of the Notes or any portion thereof. (b) Each Lender may assign its rights and interests under this Agreement, the Notes and the Security Documents and/or delegate its obligations hereunder and thereunder, in whole or in part, and sell participations in the Notes and the Security Documents as security therefor, provided as follows: (i) Any such assignment, other than an assignment in whole, made other than to (A) another Lender, (B) a separately organized branch of a Lender or (C) a Related Lender Party, shall reflect an assignment of such assigning Lender's Notes and Commitments which is in an aggregate principal amount of at least $500,000, unless each of the Borrower and the Agent otherwise consents to a lesser amount. (ii) Notwithstanding any provision of this Agreement to the contrary, (A) each Lender may at any time pledge all or any portion of its rights under this Agreement and each of the other Loan Documents, including without limitation its Loans and the Notes held by such Lender, to a Federal Reserve Bank (or equivalent thereof in the case of Lenders chartered outside of the United States) in support of borrowings made by such Lender from such Federal Reserve Bank and (B) any Lender that is a fund or similar investment vehicle that invests in or makes commercial loans may, without the consent of the Agent or the Borrower, pledge all or any portion of its Notes or Loans to any holders of obligations owed, or securities issued, by such Person, as security for such obligations or securities, or to any trustee for, or any other representative of, such holders; provided that any foreclosure or similar action by such trustee shall be subject to the provisions of this Section concerning assignments. No pledge pursuant to this subsection (ii) shall release the transferor Lender from any of its obligations and liabilities under the Loan Documents. (iii) Any assignments and/or delegations made hereunder shall be pursuant to an instrument of assignment and acceptance (the "Assignment and Acceptance") substantially in the form of Schedule 12 and the parties to each such assignment shall execute and deliver to the Agent for its acceptance the Assignment and Acceptance together with any Note or Notes subject thereto. Upon such execution and delivery, from and after the effective date specified in each Assignment and Acceptance, which effective date shall be at least five (5) Business Days after the execution thereof unless otherwise permitted by the Agent, (A) the assignee thereunder shall become a party hereto and, to the extent provided in such Assignment and Acceptance, have the rights and obligations of a Lender hereunder with applicable Loans as set forth therein and (B) the assigning Lender thereunder shall, to the extent provided in such assignment, be released from its obligations under this Agreement as to that portion of its obligation being so assigned and delegated. The Assignment and Acceptance shall be deemed to amend this Agreement to the extent, and only to the extent, necessary to reflect the addition of the assignee as a Lender and the resulting adjustment of Loans arising from the purchase by and delegation to such assignee of all or a portion of the rights and obligations of such assigning Lender under this Agreement. (iv) The Agent, on behalf of the Borrower, shall maintain at the address of the Agent referred to in Section 13.03 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 Commitments of, and principal amounts of the Loans owing to, and any Notes evidencing the Loans owned by, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, the 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; provided that in the case of an assignment by a Lender to any Related Lender Party that is not reflected on the Register, the assigning Lender shall maintain a comparable register on behalf of the Agent. 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. (v) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and the assignee together with the Note or Notes, if any, subject to such assignment (or a standard indemnity letter from the respective assigning Lender in respect of any lost Note or Notes) and payment by the assigning Lender or the assignee to the Agent of registration and processing fees of $3,500 in the aggregate (except with respect to assignments (A) to any Related Lender Party or another Lender or (B) by the Agent, the Syndication Agent or the Documentation Agent, in their capacities as Lenders), the Agent shall promptly accept such Assignment and Acceptance and record the information contained therein in the Register and give notice of such acceptance and recordation to the Lenders and the Borrower. Such Assignment and Acceptance and the assignment evidenced thereby shall only be effective upon appropriate entries with respect to the information contained therein being made in the Register pursuant to subparagraph (iv) above. (vi) Within five (5) Business Days after receipt of such notice, the Borrower shall, if requested by the assignee Lender, execute and deliver to the Agent in exchange for evidence of the delivery to the Agent of a copy of each such surrendered Note, marked "Superseded", one or more new Notes payable to the order of such assignee in an amount equal to the portion of the applicable Commitment assumed and/or Loans purchased by such assignee pursuant to such Assignment and Acceptance and a new Note payable to the order of the assigning Lender in an amount equal to the portion of the applicable Commitment(s) and/or Loans retained by it hereunder. Such new Notes shall be dated the effective date of such Assignment and Acceptance and shall otherwise be in substantially the form provided in Sections 1.01, 1.03, 1.04 or 1.04A as applicable. Copies of the superseded Notes shall be delivered to the Borrower upon execution and delivery of such new Notes and the original superseded Notes shall be returned to the assignors thereof. (vii) Each Lender may sell participations in all or a portion of its rights and obligations under this Agreement (including, without limitation, all or a portion of the Notes held by it); provided, however, that, no Lender shall transfer or grant any participation under which the participant shall have rights to approve any amendment to or waiver of this Agreement or any other Loan Document, except to the extent such amendment or waiver would (A) extend the final scheduled maturity of any Loan or Note in which such participant is participating, or reduce the rate or extend the time of payment of interest or fees thereon (except in connection with a waiver of applicability of any post-default increase in interest rates) or reduce the principal amount thereof, or increase the amount of the participant's participation over the amount thereof, or increase the amount of the participant's participation over the amount thereof then in effect (it being understood that no waiver or modification of any condition precedent, covenant or Default or of any mandatory reduction in the aggregate Commitments shall constitute a change in the terms of such participation, that an increase in any Commitment or Loan shall be permitted without the consent of any participant if the participant's participation is not increased as a result thereof and that any amendment or modification to the financial definitions in this Agreement shall not constitute a reduction in any rate of interest or fees for purposes of this clause (A)), (B) consent to the assignment or transfer by the Borrower of any of its rights and obligations under this Agreement or (C) release all or substantially all of the Collateral under all of the Security Documents (except as expressly provided in the Security Documents) supporting the Loans hereunder in which such participant is participating or (D) eliminate the rights set forth in Section 1.21. In the case of any such participation, the participant shall not have any rights under this Agreement or any of the other Loan Documents (the participant's rights against such Lender in respect of such participation to be those set forth in the agreement executed by such Lender in favor of the participant relating thereto) and all amounts payable by the Borrower hereunder shall be determined as if such Lender had not sold such participation. (viii) Except for an assignment made to (i) another Lender, (ii) a separately organized branch of a Lender, (iii) a Related Lender Party or (iv) a Qualified Institutional Lender, and except during the existence of a Default, no assignment referred to above shall be permitted without the prior written consent of the Agent and the Borrower, which consent shall not be unreasonably withheld or delayed. (ix) The Borrower may not assign any of its rights or delegate any of its duties or obligations hereunder. (x) To the extent that an assignment of all or any portion of a Lender's Commitment and outstanding Loans pursuant to subsection (b) of Article XI or this Article XII would, due to circumstances existing at the time of such assignment, result in costs under Sections 1.11, 1.13 or 1.14 which are increased from those being charged by the respective assigning Lender prior to such assignment, then the Borrower shall not be obligated to pay such increased costs (although the Borrower shall be obligated to pay any other increased costs of the type described above resulting from changes after the date of the respective assignment). (xi) Any Lender may, in connection with any assignment or participation pursuant to this Section, disclose to the assignee or participant any information relating to the Companies and the Parent Affiliates furnished to such Lender by or on behalf of the Borrower and such assignee or participant shall treat such information as confidential.

Appears in 2 contracts

Samples: Credit Agreement (Pegasus Communications Corp /), Credit Agreement (Pegasus Communications Corp /)

Benefit of Agreement Assignments and Participations. (a) This Agreement shall be binding upon and inure to the benefit of ~~the~~ Borrower, ~~the Lenders and the Agent~~ Lenders, Agents and their respective successors and permitted assigns, and all subsequent holders of any of the Notes or any portion thereof. (b) Each Lender may assign its rights and interests under this Agreement, the Notes and the Security Documents and/or delegate its obligations hereunder and thereunder, in whole or in part, and sell participations in ~~the Notes~~ its Commitment(s) and ~~the Security Documents as security therefor~~its Loans, provided as follows: (i) Any such assignment, other than an assignment in whole, made other than to (A) another Lender, (B) a separately organized branch of a Lender or (C) a Related Lender Party, shall reflect an assignment of such assigning Lender~~'s Notes~~ ’s Note and ~~Commitments~~ Commitment which is in an aggregate principal amount of at least $~~500,000~~1,000,000, ~~unless each~~ and if greater, shall be in an integral multiple of ~~the Borrower and the Agent otherwise consents to a lesser amount~~$100,000. (ii) Notwithstanding any provision of this Agreement to the contrary, (A) each Lender may at any time pledge all or any portion of its rights under this Agreement and each of the other Loan Documents, including without limitation its Loans and the Notes held by such Lender, to a Federal Reserve Bank (or equivalent thereof in the case of Lenders chartered outside of the United States) in support of borrowings made by such Lender from such Federal Reserve ~~Bank and~~ Bank, (B) with the consent of each Agent, any Lender ~~that~~ which is a fund ~~or similar investment vehicle that invests in or makes commercial loans may, without the consent of the Agent or the Borrower,~~ may pledge all or any portion of its Notes or Loans to its trustee in support of its obligations to its trustee, and (C) any ~~holders of obligations owed, or securities issued, by~~ such ~~Person, as security for~~ pledgee may enforce such obligations or securities, or to any trustee for, or any other representative of, such holders; provided that any foreclosure or similar action by such trustee shall be subject to the provisions of this Section concerning assignmentspledge. No pledge pursuant to this subsection (ii) ), and no enforcement thereof by the pledgee, shall release the transferor Lender from any of its obligations and liabilities under the Loan Documents. (iii) Any assignments and/or delegations made hereunder shall be pursuant to an instrument of assignment and acceptance (the "“Assignment and Acceptance"”) substantially in the form of Schedule 12 and the parties to each such assignment shall execute and deliver to ~~the~~ Collateral Agent for its acceptance the Assignment and Acceptance together with any Note or Notes subject thereto. Upon such execution and delivery, from and after the effective date specified in each Assignment and Acceptance, which effective date shall be at least five (5) Business Days after the execution ~~thereof unless otherwise permitted by the Agent~~thereof, (A) the assignee thereunder shall become a party ~~hereto~~ hereto, to the Loan Documents, and, to the extent provided in such Assignment and Acceptance, have the rights and obligations of a Lender hereunder with the applicable ~~Loans as~~ Commitment set forth therein and (B) the assigning Lender thereunder shall, to the extent provided in such assignment, be released from its obligations under this Agreement as to that portion of its obligation being so assigned and delegated. The Assignment and Acceptance shall be deemed to amend this Agreement to the extent, and only to the extent, necessary to reflect the addition of the assignee as a Lender and the resulting adjustment of ~~Loans~~ Commitments arising from the purchase by and delegation to such assignee of all or a portion of the rights and obligations of such assigning Lender under this Agreement. (iv) The Agent, on behalf of the Borrower, shall maintain at the address of the Agent referred to in Section 13.03 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 Commitments of, and principal amounts of the Loans owing to, and any Notes evidencing the Loans owned by, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, the 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; provided that in the case of an assignment by a Lender to any Related Lender Party that is not reflected on the Register, the assigning Lender shall maintain a comparable register on behalf of the Agent. 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. (v) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and the assignee together with the Note ~~or Notes, if any,~~ subject to such assignment (or a standard indemnity letter from the respective assigning Lender in respect of any lost ~~Note or Notes~~Note) and payment by the ~~assigning Lender or the~~ assignee to ~~the~~ Collateral Agent of a registration and processing ~~fees~~ fee of $~~3,500 in the aggregate (except with respect to assignments (A) to any Related Lender Party or another Lender or (B) by the Agent~~5,000, ~~the Syndication Agent or the Documentation Agent, in their capacities as Lenders), the~~ Collateral Agent shall ~~promptly~~ accept such Assignment and ~~Acceptance and record the information contained therein~~ Acceptance; provided, however, that in ~~the Register and give notice~~ lieu of such ~~acceptance~~ processing fee, on not more than two (2) occasions involving assignments to an Affiliate, the assigning Lender shall be obligated to pay to Collateral Agent only Collateral Agent’s out-of-pocket expenses incurred in documenting and ~~recordation to the Lenders and the Borrower~~reviewing such assignment (including reasonable attorneys’ fees). ~~Such~~ Promptly upon delivering such Assignment and Acceptance to Collateral Agent, the assigning Lender shall give notice thereof to Borrowers and ~~the assignment evidenced thereby shall only be effective upon appropriate entries with respect to the information contained therein being made in the Register pursuant to subparagraph (iv) above. (vi)~~ Collateral Agent. Within five (5) Business Days after receipt of such notice, ~~the Borrower shall, if requested by the assignee Lender,~~ Borrowers shall execute and deliver to ~~the~~ Collateral Agent in exchange for ~~evidence of the delivery to the Agent of a copy of~~ each such surrendered ~~Note, marked "Superseded", one or more~~ Note a new ~~Notes~~ Note payable to the order of such assignee in an amount equal to the portion of the ~~applicable~~ Commitment assumed ~~and/or Loans purchased~~ by such assignee pursuant to such Assignment and Acceptance and a new Note payable to the order of the assigning Lender in an amount equal to the portion of the ~~applicable Commitment(s) and/or Loans~~ Commitment retained by it hereunder. Such new Notes shall be dated the effective date of such Assignment and Acceptance and shall otherwise be in substantially the form provided in ~~Sections 1.01, 1.03, 1.04 or 1.04A as applicable~~Section 2.01. ~~Copies of the superseded~~ Canceled Notes shall be ~~delivered~~ returned to Borrowers upon the ~~Borrower upon~~ execution and delivery of such new ~~Notes and the original superseded Notes shall be returned to the assignors thereof~~Notes. (~~vii~~v) Each Lender may sell participations in all or a portion of its rights and obligations under this Agreement (including, without limitation, all or a portion of its Commitments and the Notes held by it); provided, however, that, no (A) the selling Lender shall ~~transfer or grant any participation~~ remain obligated under ~~which the participant shall have rights to approve any amendment to or waiver of~~ this Agreement to the extent as it would if it had not sold such participation, (B) the selling Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (C) at no time shall the selling Lender agree with such participant to take or refrain from taking any action hereunder or under any other Loan Document, except that the selling Lender may agree not to consent, without such participant’s consent, to any of the actions referred to Article XI, to the extent ~~such amendment or waiver would (A) extend~~ that the final scheduled maturity of any Loan or Note in which such participant is participating, or reduce the rate or extend the time of payment of interest or fees thereon (except in connection with a waiver of applicability of any post-default increase in interest rates) or reduce the principal amount thereof, or increase the amount of the participant's participation over the amount thereof, or increase the amount of the participant's participation over the amount thereof then in effect (it being understood that no waiver or modification of any condition precedent, covenant or Default or of any mandatory reduction in the aggregate Commitments shall constitute a change in the terms of such participation, that an increase in any Commitment or Loan shall be permitted without same require the consent of any participant if the participant's participation is not increased as a result thereof and that any amendment or modification to the financial definitions in this Agreement shall not constitute a reduction in any rate of interest or fees for purposes of this clause (A))each Lender hereunder, (B) consent to the assignment or transfer by the Borrower of any of its rights and obligations under this Agreement or (C) release all or substantially all of the Collateral under all of the Security Documents (except as expressly provided in the Security Documents) supporting the Loans hereunder in which such participant is participating or (D) eliminate the rights set forth in Section 1.21. In the case of any such participation, the participant shall not have any rights under this Agreement or any of the other Loan Documents (the participant's rights against such Lender in respect of such participation to be those set forth in the agreement executed by such Lender in favor of the participant relating thereto) and all amounts payable by ~~the~~ Borrower hereunder shall be determined as if such Lender had not sold such ~~participation~~participation and no participant shall be entitled to receive any greater amount pursuant to this Agreement than the selling Lender would have been entitled to receive in respect of the amount of the participation transferred by such Lender to such participant had no such transfer occurred, and (E) Borrowers, Collateral Agent, and the other Lenders shall continue to deal solely and directly with the selling Lender in connection with such Lender’s rights and obligations under this Agreement. (~~viii~~vi) Except for an assignment made to (iA) another Lender, (iiB) a separately organized branch of a Lender, (~~iii~~C) a Related Lender Party or (ivD) ~~a Qualified Institutional Lender, and except during the existence of a Default~~an Eligible Transferee, no assignment referred to above shall be permitted without the prior written consent of ~~the Agent and the Borrower~~each Agent, which consent shall not be unreasonably withheld or delayed. (ixvii) ~~The Borrower~~ Borrowers may not assign any of ~~its~~ their rights or delegate any of ~~its~~ their duties or obligations hereunder. (xviii) To the extent that an assignment of all or any portion of a Lender's ’s Commitment and outstanding Loans pursuant to subsection (b) of Article XI or this Article XII would, due to circumstances existing at the time of such assignment, result in costs under Sections ~~1.11~~2.07, ~~1.13~~ 2.09 or ~~1.14~~ 2.10 which are increased from those being charged by the ~~respective~~ assigning Lender prior to such assignment, then ~~the Borrower~~ Borrowers shall not be obligated to pay such increased costs (although ~~the Borrower~~ Borrowers shall be obligated to pay any other increased costs of the type described above resulting from changes after the date of the respective assignment). (xiix) Any Lender may, in connection with any assignment or participation pursuant to this Section, disclose to the assignee or participant any information relating to the ~~Companies~~ Borrowers and ~~the Parent~~ their Affiliates furnished to such Lender by or on behalf of ~~the Borrower~~ Borrowers and such assignee or participant shall treat such information as confidential. (x) No Lender shall sell any Participation or Loan interest to a Person that, by virtue of ownership of debt and/or equity in EBC, would be deemed to hold an attributable ownership interest in any of the Borrowers in violations of applicable FCC rules and regulations.

Appears in 2 contracts

Samples: Credit Agreement (Coconut Palm Acquisition Corp.), Credit Agreement (Coconut Palm Acquisition Corp.)

Benefit of Agreement Assignments and Participations. (a) This Agreement shall be binding upon and inure to the benefit of the Borrower, the Lenders and the Agent and their respective successors and permitted assigns, and all subsequent holders of any of the Notes or any portion thereof. (b) Each Lender may assign its rights and interests under this Agreement, the Notes and the Security Documents and/or delegate its obligations hereunder and thereunder, in whole or in part, and sell participations in the Notes and the Security Documents as security therefor, to any bank or financial institution with net capital, capital surplus and undivided profits in excess of $500,000,000, provided as follows: (i) ~~Any such~~ No Lender shall make any assignment, other than an assignment in ~~whole~~whole or to a separately organized branch or an affiliate of the same Lender, if, after giving effect thereto, such Lender would hold less than $5,000,000 of the then aggregate outstanding principal amount of the Notes, notwithstanding this provision any Lender may make assignments in any amount to any other existing Lender, subject to the Agent's and the Borrower's consent, which consent will not be unreasonably withheld or delayed, provided that the Borrower's consent will not be required if a Default (other than a de minimus default under the Loan Documents) then exists and is continuing hereunder. (ii) Any such assignment made other than to ~~(A) another Lender, (B)~~ a separately organized ~~branch of~~ branch, or an affiliate of, a Lender ~~or (C) a Related Lender Party,~~ shall reflect an assignment of such assigning Lender's Notes and Commitments which is in an aggregate principal amount of at least $ 1,000,000, and if greater, shall be an integral multiple of $~~500,000, unless each of the Borrower and the Agent otherwise consents to a lesser amount~~1,000,000. (iiiii) Notwithstanding any provision of this Agreement to the contrary, ~~(A)~~ each Lender may at any time ~~pledge~~ assign all or any portion of its rights under this Agreement and each of the other Loan Documents, ~~including~~ including, without ~~limitation its Loans and~~ limitation, the Notes held by such Lender, to a Federal Reserve Bank (or equivalent thereof in the case of Lenders chartered outside of the United States) in support of borrowings made by such Lender from such Federal Reserve Bank and (B) any Lender that is a fund or similar investment vehicle that invests in or makes commercial loans may, without the consent of the Agent or the Borrower, pledge all or any portion of its Notes or Loans to any holders of obligations owed, or securities issued, by such Person, as security for such obligations or securities, or to any trustee for, or any other representative of, such holders); provided that ~~any foreclosure or similar action by~~ no such ~~trustee shall be subject to the provisions of this Section concerning assignments. No pledge pursuant to this subsection (ii)~~ assignment shall release ~~the transferor~~ a Lender from any of its obligations and liabilities under the Loan Documents. Any Federal Reserve Bank (or equivalent thereof) which receives such an assignment from any Lender may make further assignments of such rights in accordance with the provisions of this Section. (~~iii~~iv) Any assignments and/or delegations made hereunder shall be pursuant to an instrument of assignment and acceptance (the "Assignment and Acceptance") substantially in the form of Schedule 12 13(b)(iv) and the parties to each such assignment shall execute and deliver to the Agent for its acceptance the Assignment and Acceptance together with any Note or Notes subject thereto. Upon such execution and delivery, from and after the effective date specified in each Assignment and Acceptance, which effective date shall be at least five (5) Business Days after the execution ~~thereof unless otherwise permitted by the Agent~~thereof, (A) the assignee thereunder shall become a party hereto and, to the extent provided in such Assignment and Acceptance, have the rights and obligations of a Lender hereunder with ~~applicable Loans~~ Commitments as set forth therein and (B) the assigning Lender thereunder shall, to the extent provided in such assignment, be released from its obligations under this Agreement as to that portion of its obligation being so assigned and delegated. The Assignment and Acceptance shall be deemed to amend this Agreement to the extent, and only to the extent, necessary to reflect the addition of the assignee as a Lender and the resulting adjustment of ~~Loans~~ Commitments arising from the purchase by and delegation to such assignee of all or a portion of the rights and obligations of such assigning Lender under this Agreement. (iv) The Agent, on behalf of the Borrower, shall maintain at the address of the Agent referred to in Section 13.03 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 Commitments of, and principal amounts of the Loans owing to, and any Notes evidencing the Loans owned by, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, the 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; provided that in the case of an assignment by a Lender to any Related Lender Party that is not reflected on the Register, the assigning Lender shall maintain a comparable register on behalf of the Agent. 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. (v) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and the assignee together with the Note or ~~Notes, if any,~~ Notes subject to such assignment ~~(or a standard indemnity letter from the respective assigning Lender in respect of any lost Note or Notes)~~ and payment by ~~the assigning Lender or~~ the assignee to the Agent of a registration and processing ~~fees~~ fee of $~~3,500 in~~ 3,500, the ~~aggregate (except with respect~~ Agent shall accept such Assignment and Acceptance. Promptly upon delivering such Assignment and Acceptance to ~~assignments (A) to any Related Lender Party or another Lender or (B) by~~ the Agent, the ~~Syndication Agent or~~ assigning Lender shall give notice thereof to the ~~Documentation Agent, in their capacities as Lenders), the Agent shall promptly accept such~~ Borrower pursuant to a Notice of Assignment and Acceptance ~~and record the information contained therein~~ substantially in the ~~Register~~ form of Schedule 13(b)(y) and ~~give notice of such acceptance and recordation~~ addressed to the ~~Lenders~~ Agent and the Borrower. Such Assignment and Acceptance and the assignment evidenced thereby shall only be effective upon appropriate entries with respect to the information contained therein being made in the Register pursuant to subparagraph (iv) above. (vi) Within five (5) Business Days after receipt of such notice, the Borrower shall, ~~if requested by the assignee Lender,~~ execute and deliver to the Agent in exchange for ~~evidence of the delivery to the Agent of a copy of~~ each such surrendered ~~Note, marked "Superseded", one or more~~ Note a new ~~Notes~~ Note payable to the order of such assignee in an amount equal to the portion of the applicable ~~Commitment~~ Commitment(s) assumed ~~and/or Loans purchased~~ by such assignee pursuant to such Assignment and Acceptance and a new Note payable to the order of the assigning Lender in an amount equal to the portion of the applicable Commitment(s) ~~and/or Loans~~ retained by it hereunder. Such new Notes shall be dated the effective date of such Assignment and Acceptance and shall otherwise be in substantially the form provided in ~~Sections~~ Section 1.01~~, 1.03, 1.04 or 1.04A as applicable~~. ~~Copies of the superseded~~ Canceled Notes shall be ~~delivered~~ returned to the Borrower upon the execution and delivery of such new ~~Notes and the original superseded Notes shall be returned to the assignors thereof~~Notes. (~~vii~~vi) Each Lender may sell participations in all or a portion of its rights and obligations under this Agreement (including, without limitation, all or a portion of its Commitment and the Notes held by it); provided, however, that, no (A) the selling Lender shall ~~transfer or grant any participation~~ remain obligated under ~~which the participant shall have rights to approve any amendment to or waiver of~~ this Agreement to the extent as it would if it had not sold such participation, (B) the selling Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (C) at no time shall the selling Lender agree with such participant to take or refrain from taking any action hereunder or under any other Loan Document, except that the selling Lender may agree not to consent, without such participant's consent, to any of the actions referred to Article XII, to the extent ~~such amendment or waiver would (A) extend~~ that the final scheduled maturity of any Loan or Note in which such participant is participating, or reduce the rate or extend the time of payment of interest or fees thereon (except in connection with a waiver of applicability of any post-default increase in interest rates) or reduce the principal amount thereof, or increase the amount of the participant's participation over the amount thereof, or increase the amount of the participant's participation over the amount thereof then in effect (it being understood that no waiver or modification of any condition precedent, covenant or Default or of any mandatory reduction in the aggregate Commitments shall constitute a change in the terms of such participation, that an increase in any Commitment or Loan shall be permitted without same require the consent of any participant if the participant's participation is not increased as a result thereof and that any amendment or modification to the financial definitions in this Agreement shall not constitute a reduction in any rate of interest or fees for purposes of this clause (A))each Lender hereunder, (B) consent to the assignment or transfer by the Borrower of any of its rights and obligations under this Agreement or (C) release all or substantially all of the Collateral under all of the Security Documents (except as expressly provided in the Security Documents) supporting the Loans hereunder in which such participant is participating or (D) eliminate the rights set forth in Section 1.21. In the case of any such participation, the participant shall not have any rights under this Agreement or any of the other Loan Documents (the participant's rights against such Lender in respect of such participation to be those set forth in the agreement executed by such Lender in favor of the participant relating thereto) and all amounts payable by the Borrower hereunder shall be determined as if such Lender had not sold such ~~participation~~participation and no participant shall be entitled to receive any greater amount pursuant to this Agreement than the selling Lender would have been entitled to receive in respect of the amount of the participation transferred by such Lender to such participant had no such transfer occurred, and (E) the Borrower, the Agent and the other Lenders shall continue to deal solely and directly with the selling Lender in connection with such Lendees rights and obligations under this Agreement. (~~viii~~vii) Except for an assignment made to ~~(i) another Lender, (ii)~~ a separately organized branch or an Affiliate of a Lender, ~~(iii) a Related Lender Party or (iv) a Qualified Institutional Lender, and except during the existence of a Default,~~ no assignment or participation referred to above shall be permitted without the prior written consent of the Agent and the Borrower, which consent shall not be unreasonably withheld or delayed, provided that the Borrower's consent will not be required if an Event of Default (other than a de minimus default under the Loan Documents) then exists and is continuing hereunder. (ixviii) The Borrower may not assign any of its rights or delegate any of its duties or obligations hereunder. (x) To the extent that an assignment of all or any portion of a Lender's Commitment and outstanding Loans pursuant to subsection (b) of Article XI or this Article XII would, due to circumstances existing at the time of such assignment, result in costs under Sections 1.11, 1.13 or 1.14 which are increased from those being charged by the respective assigning Lender prior to such assignment, then the Borrower shall not be obligated to pay such increased costs (although the Borrower shall be obligated to pay any other increased costs of the type described above resulting from changes after the date of the respective assignment). (xiix) Any Lender may, in connection with any assignment or participation pursuant to this Section, disclose to the assignee or participant any information relating to the Companies, the Parent Companies and ~~the Parent~~ their respective Affiliates furnished to such Lender by or on behalf of the Borrower and such assignee or participant shall treat such information as confidential.

Appears in 2 contracts

Samples: Credit Agreement (Acme Intermediate Holdings LLC), Credit Agreement (Acme Television LLC)

Benefit of Agreement Assignments and Participations. (a) This Agreement shall be binding upon and inure to the benefit of and be enforceable by the ~~Borrower, the Lenders and the Agent~~ parties hereto and their respective successors and assigns; provided, however, that (except as permitted ~~assigns, and all subsequent holders of~~ under Section 8.3) no Obligor may transfer any of its rights or Obligations hereunder without the ~~Notes or any portion thereof~~prior written consent of each Bank. (b) ~~Each Lender~~ With the consent of each Obligor, which may ~~assign~~ not be unreasonably withheld or delayed, each Bank shall have the right at any time to sell, assign, syndicate, transfer or negotiate all or any portion of such Bank's Commitments and its interests in the Obligations hereunder to an Eligible Assignee to be selected by such Bank (collectively, an "assignment"); provided that (i) any such assignment of less than all of such Bank's Commitments and Obligations hereunder shall be in the minimum principal amount of $15,000,000, (ii) after giving effect to any such assignment of less than all of such Bank's Commitments and Obligations hereunder, such Bank shall retain not less than $25,000,000 in Commitments and Obligations hereunder, (iii) such Bank shall have delivered to the Agent a fee of $2,500 in respect of each such assignment and (iv) such assignment does not violate any applicable securities laws of any jurisdiction. From 77 and after the date of any such permitted assignment, the Eligible Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it, shall have the rights and obligations of, and be deemed to be, a Bank hereunder, and the assigning Bank thereunder shall, to the extent that rights and obligations hereunder have been assigned by it, relinquish its rights and ~~interests~~ be released from its obligations under this Agreement (and, in the case of an assignment covering all or the remaining portion of an assigning Bank's rights and obligations under this Agreement, the ~~Notes and~~ Bank shall cease to be a party hereto). Any Bank, without the ~~Security Documents and/or delegate~~ consent of any Obligor, any other Bank or the Agent, may assign, pledge or grant participations in its ~~obligations~~ rights with respect to its interest in the Obligations hereunder ~~and thereunder~~to any Federal Reserve Bank or any Affiliate of such Bank which is an Eligible Assignee. Notwithstanding anything to the contrary contained herein, any Bank may sell, transfer, assign or grant participations in ~~whole~~ all or any part of the Competitive Bid Loans made by it. (c) Subject to the provisions of this Section 11.7, each Bank shall have the right at any time to sell undivided participating interests in ~~part~~all or any part of its Borrowings to one or more Affiliates of such Bank or to one or more other banks; provided that (1) such sale or transfer does not violate any applicable securities laws of any jurisdiction, (ii) such sale or transfer shall not relieve such Bank of any obligation or liability hereunder, and ~~sell participations in~~ (iii) such Bank shall make and receive all payments for the ~~Notes~~ account of its participants and shall retain exclusively, and shall continue to exercise exclusively, all rights of approval and administration available hereunder with respect to such Bank's Borrowings, even after giving effect to any such sale or transfer, and such Bank shall make such arrangements with its participants as may be necessary to accomplish the ~~Security Documents as security therefor~~foregoing, provided ~~as follows:~~ that any such participant may be given the right to vote its interest with respect to any change of the principal of, or the rate of interest on, any Obligation or any change of the time of payment of principal (iother than with respect to prepayments required by Section 2.8(a)) ~~Any~~ of, or interest on, any Obligation by which it would be affected. No such ~~assignment~~participant shall be a Bank for any purpose under this Agreement, other than ~~an assignment in whole~~for the purposes of Sections 2.12 (but only to the extent that the selling Bank would be entitled to payment thereunder), ~~made other than to (A) another Lender~~11.1, ~~(B) a separately organized branch of a Lender or (C) a Related Lender Party, shall reflect an assignment of such assigning Lender's Notes~~ 11.2 and ~~Commitments which is in an aggregate principal amount of~~ the proviso at ~~least $500,000, unless each~~ the end of the Borrower and the Agent otherwise consents to a lesser amount. (ii) Notwithstanding any provision of this Agreement to the contrary, (A) each Lender may at any time pledge all or any portion of its rights under this Agreement and each of the other Loan Documents, including without limitation its Loans and the Notes held by such Lender, to a Federal Reserve Bank (or equivalent thereof in the case of Lenders chartered outside of the United States) in support of borrowings made by such Lender from such Federal Reserve Bank and (B) any Lender that is a fund or similar investment vehicle that invests in or makes commercial loans mayimmediately preceding sentence, without the consent of the ~~Agent~~ Agent, the Required Banks and each Obligor. (d) It is expressly agreed that, in connection with any assignment, the sale and transfer of any participations or offers therefor pursuant to this Section 11.7, each Bank may, subject to Section 11.15, provide to any assignee or participant or prospective assignee or participant such information pertaining to the ~~Borrower, pledge all~~ Obligors or any ~~portion~~ of ~~its Notes~~ their Subsidiaries as such Bank has received from the Obligors (directly or indirectly) and general credit information based on such Bank's records. (e) Any Bank may at any time designate not more than one Designated Lender to fund Committed Loans and/or Competitive Bid Loans on behalf of such Designating Lender subject to ~~any holders~~ the terms of ~~obligations owed, or securities issued, by~~ this subsection 11.7(e) and the provisions of the foregoing subsection 11.7(b) hereof shall not apply to such ~~Person, as security for such obligations or securities, or to any trustee for, or any other representative of, such holders~~designation; provided that ~~any foreclosure or similar action by such trustee~~ each Designated Lender which is a non- U.S. Bank shall ~~be subject to~~ comply with the provisions of ~~this Section concerning assignments~~subsection 2.15 hereof. No ~~pledge pursuant~~ Bank may have more than one Designated Lender at any time. Such designation may occur either by the execution of the signature pages hereof by such Bank and Designated Lender next to ~~this subsection (ii) shall release~~ the ~~transferor~~ appropriate "Designating Lender" and "Designated Lender" captions, or by execution by such parties of a Designation Agreement subsequent to the date hereof; provided, that any Bank and its Designated Lender ~~from any of its obligations~~ executing the signature pages hereof as "Designating Lender" and ~~liabilities under~~ "Designated Lender", respectively, on the ~~Loan Documents. (iii) Any assignments and/or delegations made hereunder~~ date hereof shall be ~~pursuant~~ deemed to ~~an instrument of assignment~~ have executed a Designation Agreement, and ~~acceptance (~~shall be bound by the ~~"Assignment~~ respective representations, warranties and ~~Acceptance") substantially in~~ covenants contained therein, and such designation shall be conclusively deemed to be accepted by the ~~form of Schedule 12~~ Obligors and the Agent. The parties to each such ~~assignment~~ designation occurring subsequent to the execution date hereof shall execute and deliver to the Agent and the Obligors for ~~its~~ their acceptance ~~the Assignment and Acceptance together with any Note or Notes subject thereto~~a Designation Agreement. Upon such ~~execution~~ receipt of an appropriately completed Designation Agreement executed by a Designating Lender and ~~delivery~~a designee representing that it is a Designated Lender and consented to by the Obligors, the Agent will accept such Designation Agreement and will give prompt notice thereof to the Obligors and the other Banks, whereupon, (i) from and after the effective date specified in ~~each Assignment and Acceptance~~the Designation Agreement, ~~which effective date shall be at least five (5) Business Days after~~ the ~~execution thereof unless otherwise permitted by the Agent, (A) the assignee thereunder~~ Designated Lender shall become a party ~~hereto and~~to this Agreement with a right to make Committed Loans and Competitive Bid Loans on behalf of its Designating Lender pursuant to subsections 2.3(c) and 2.5(i), respectively and (ii) the Designated Lender shall not be required to make payments with respect to any obligations and liabilities in this Agreement except to the extent ~~provided in~~ of excess cash flow of such ~~Assignment and Acceptance, have the rights and obligations of a~~ Designated Lender ~~hereunder with applicable Loans as set forth therein and (B) the assigning Lender thereunder shall,~~ which is not otherwise required to the extent provided in such assignment, be released from its obligations under this Agreement as to that portion of its obligation being so assigned and delegated. The Assignment and Acceptance shall be deemed to amend this Agreement to the extent, and only to the extent, necessary to reflect the addition of the assignee as a Lender and the resulting adjustment of Loans arising from the purchase by and delegation to such assignee of all or a portion of the rights and repay obligations of such ~~assigning~~ Designated Lender ~~under this Agreement. (iv) The Agent~~which are then due and payable; provided, ~~on behalf~~ however, that regardless of such designation and assumption by the ~~Borrower~~Designated Lender, ~~shall maintain at~~ the address of the Agent referred to in Section 13.03 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 Commitments of, and principal amounts of the Loans owing to, and any Notes evidencing the Loans owned by, each Designating Lender ~~from time to time. The entries in the Register~~ shall be ~~conclusive, in~~ and remain obligated to the ~~absence of manifest error, and the Borrower~~Obligors, the Agent and the ~~Lenders shall treat~~ Banks for 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; provided that in the case of an assignment by a Lender to any Related Lender Party that is not reflected on the Register, the assigning Lender shall maintain a comparable register on behalf every of the ~~Agent. The Register shall be available for inspection by~~ obligations of the ~~Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice. (v) Upon its receipt of an Assignment and Acceptance executed by an assigning~~ Designating Lender and ~~the assignee together with the Note or Notes, if any, subject to such assignment (or a standard indemnity letter from the respective assigning~~ its related Designated Lender ~~in respect of any lost Note or Notes) and payment by the assigning Lender or the assignee to the Agent of registration and processing fees of $3,500 in the aggregate (except~~ with respect to ~~assignments (A) to any Related Lender Party or another Lender or (B) by the Agent~~this Agreement, the Syndication Agent or the Documentation Agent, in their capacities as Lenders), the Agent shall promptly accept such Assignment and Acceptance and record the information contained therein in the Register and give notice of such acceptance and recordation to the Lenders and the Borrower. Such Assignment and Acceptance and the assignment evidenced thereby shall only be effective upon appropriate entries with respect to the information contained therein being made in the Register pursuant to subparagraph (iv) above. (vi) Within five (5) Business Days after receipt of such notice, the Borrower shall, if requested by the assignee Lender, execute and deliver to the Agent in exchange for evidence of the delivery to the Agent of a copy of each such surrendered Note, marked "Superseded", one or more new Notes payable to the order of such assignee in an amount equal to the portion of the applicable Commitment assumed and/or Loans purchased by such assignee pursuant to such Assignment and Acceptance and a new Note payable to the order of the assigning Lender in an amount equal to the portion of the applicable Commitment(s) and/or Loans retained by it hereunder. Such new Notes shall be dated the effective date of such Assignment and Acceptance and shall otherwise be in substantially the form provided in Sections 1.01, 1.03, 1.04 or 1.04A as applicable. Copies of the superseded Notes shall be delivered to the Borrower upon execution and delivery of such new Notes and the original superseded Notes shall be returned to the assignors thereof. (vii) Each Lender may sell participations in all or a portion of its rights and obligations under this Agreement (including, without limitation, ~~all~~ any actions taken by the Designated Lender with respect to the Agreement, any indemnification obligations under subsection 3.3 hereof and any sums otherwise payable to the Obligors by the Designated Lender. Each Designating Lender, or a ~~portion of the Notes held by it); provided, however, that, no Lender shall transfer~~ specified branch or grant any participation under which the participant shall have rights to approve any amendment to or waiver of this Agreement or any other Loan Document, except to the extent such amendment or waiver would (A) extend the final scheduled maturity of any Loan or Note in which such participant is participating, or reduce the rate or extend the time of payment of interest or fees thereon (except in connection with a waiver of applicability of any post-default increase in interest rates) or reduce the principal amount affiliate thereof, ~~or increase~~ shall serve as the amount of the participant's participation over the amount thereof, or increase the amount of the participant's participation over the amount thereof then in effect (it being understood that no waiver or modification of any condition precedent, covenant or Default or of any mandatory reduction in the aggregate Commitments shall constitute a change in the terms of such participation, that an increase in any Commitment or Loan shall be permitted without the consent of any participant if the participant's participation is not increased as a result thereof and that any amendment or modification to the financial definitions in this Agreement shall not constitute a reduction in any rate of interest or fees for purposes of this clause (A)), (B) consent to the assignment or transfer by the Borrower of any administrative agent of its ~~rights~~ Designated Lender and ~~obligations under this Agreement or (C) release all or substantially all~~ shall on behalf of the Collateral under all of the Security Documents (except as expressly provided in the Security Documents) supporting the Loans hereunder in which such participant is participating or (D) eliminate the rights set forth in Section 1.21. In the case of any such participation, the participant shall not have any rights under this Agreement or any of the other Loan Documents (the participant's rights against such Lender in respect of such participation to be those set forth in the agreement executed by such Lender in favor of the participant relating thereto) and all amounts payable by the Borrower hereunder shall be determined as if such Lender had not sold such participation. (viii) Except for an assignment made to its Designated Lender: (i) ~~another Lender,~~ receive any and all payments made for the benefit of such Designated Lender and (ii) give and receive all communications and notices and take all actions hereunder, including, without limitation, votes, approvals, waivers, 74 consents and amendments under or relating to this Agreement. Any such notice, communication, vote, approval, waiver, consent or amendment shall be signed by a ~~separately organized branch of a~~ Designating Lender, ~~(iii) a Related~~ or specified branch or affiliate thereof, as administrative agent for its Designated Lender ~~Party or (iv) a Qualified Institutional Lender~~and need not be signed by such Designated Lender on its own behalf. The Obligors, ~~and except during the existence of a Default, no assignment referred to above shall be permitted without the prior written consent of~~ the Agent and the ~~Borrower, which consent shall not be unreasonably withheld~~ Banks may rely thereon without any requirement that the Designated Lender sign or ~~delayed. (ix) The Borrower~~ acknowledge the same. No Designated Lender may ~~not~~ assign ~~any of its rights~~ or ~~delegate any of its duties or obligations hereunder. (x) To the extent that an assignment of~~ transfer all or any portion of ~~a Lender's Commitment and outstanding Loans pursuant~~ its interest hereunder, other than via an assignment to its Designating Lender or Liquidity Bank, if any, or otherwise in accordance with the provisions of subsection (b11.7(b) of Article XI or this Article XII would, due to circumstances existing at the time of such assignment, result in costs under Sections 1.11, 1.13 or 1.14 which are increased from those being charged by the respective assigning Lender prior to such assignment, then the Borrower shall not be obligated to pay such increased costs (although the Borrower shall be obligated to pay any other increased costs of the type described above resulting from changes after the date of the respective assignment)hereof. (xi) Any Lender may, in connection with any assignment or participation pursuant to this Section, disclose to the assignee or participant any information relating to the Companies and the Parent Affiliates furnished to such Lender by or on behalf of the Borrower and such assignee or participant shall treat such information as confidential.

Appears in 1 contract

Samples: Credit Agreement and Guaranty (Ud Nevada Corp)

Benefit of Agreement Assignments and Participations. (a) This Agreement shall be binding upon and inure to the benefit of the ~~Borrower~~Borrowers, the ~~Lenders and~~ Lenders, the Agent, the Co-Agent and their respective successors and ~~permitted~~ assigns, and all subsequent holders of any of the Notes or any portion ~~thereof~~hereof. (b) Each Lender may assign its rights and interests under this Agreement, the Notes and the Security Documents ~~and/or delegate its obligations hereunder and thereunder,~~ in whole or in part, and sell participations in the Notes and the Security Documents as security therefor, provided as follows: (i) No Lender shall make any assignment (other than assignment in full) other than to a separately organized branch or an Affiliate of the same Lender, if, after giving effect thereto, such Lender would hold less than $5,000,000 of the then aggregate outstanding principal amount of the Notes. (ii) Any such ~~assignment, other than an~~ assignment ~~in whole,~~ made other than to ~~(A) another Lender, (B)~~ a separately organized ~~branch of~~ branch, or an Affiliate of, a Lender ~~or (C) a Related Lender Party,~~ shall reflect an assignment of such assigning Lender's Notes ~~and Commitments~~ which is in an aggregate principal amount of at least $~~500,000~~5,000,000, ~~unless each~~ and if greater, shall be an integral multiple of ~~the Borrower and the Agent otherwise consents to a lesser amount~~$1,000,000. (iiiii) Notwithstanding any provision of this Agreement to the contrary, ~~(A)~~ each Lender may at any time ~~pledge~~ assign all or any portion of its rights under this Agreement and each of the other Loan Documents, ~~including~~ including, without ~~limitation its Loans and~~ limitation, the Notes held by such Lender, to a Federal Reserve Bank (or equivalent thereof in the case of Lenders chartered outside of the United States) in support of borrowings made by such Lender from such Federal Reserve Bank and (B) any Lender that is a fund or similar investment vehicle that invests in or makes commercial loans may, without the consent of the Agent or the Borrower, pledge all or any portion of its Notes or Loans to any holders of obligations owed, or securities issued, by such Person, as security for such obligations or securities, or to any trustee for, or any other representative of, such holders); provided that ~~any foreclosure or similar action by~~ no such ~~trustee shall be subject to the provisions of this Section concerning assignments. No pledge pursuant to this subsection (ii)~~ assignment shall release ~~the transferor~~ a Lender from any of its obligations and liabilities under the Loan Documents. Any Federal Reserve Bank (or equivalent thereof) which receives such an assignment from any Lender may make further assignments of such rights in accordance with the provisions of this Section. (~~iii~~iv) Any assignments ~~and/or delegations~~ made hereunder shall be pursuant to an instrument of assignment and acceptance (the "~~Assignment and Acceptance~~ASSIGNMENT AND ACCEPTANCE") substantially in the form of ~~Schedule 12~~ EXHIBIT H and the parties to each such assignment shall execute and deliver to the Agent and the Co-Agent for ~~its~~ their acceptance the Assignment and Acceptance together with any Note or Notes subject thereto. Upon such execution and delivery, from and after the effective date specified in each Assignment and Acceptance, which effective date shall be at least ~~five~~ two (52) Business Days after the execution ~~thereof unless otherwise permitted by the Agent~~thereof, (A) the assignee thereunder shall become a party ~~hereto~~ hereto, to the Loan Documents and to the Intercreditor Agreement and, to the extent provided in such Assignment and Acceptance, have the rights and obligations of a Lender hereunder with ~~applicable Loans~~ a commitment as set forth therein and (B) the assigning Lender thereunder shall, to the extent provided in such assignment, be released from its obligations under this Agreement as to that portion of its obligation being so assigned and delegated. The Assignment and Acceptance shall be deemed to amend this Agreement to the extent, and only to the extent, necessary to reflect the addition of the assignee as a Lender and the resulting adjustment of ~~Loans~~ Commitments arising from the purchase by and delegation to such assignee of all or a portion of the rights and obligations of such assigning Lender under this Agreement. (iv) The Agent, on behalf of the Borrower, shall maintain at the address of the Agent referred to in Section 13.03 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 Commitments of, and principal amounts of the Loans owing to, and any Notes evidencing the Loans owned by, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, the 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; provided that in the case of an assignment by a Lender to any Related Lender Party that is not reflected on the Register, the assigning Lender shall maintain a comparable register on behalf of the Agent. 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. (v) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and the assignee together with the Note ~~or Notes, if any,~~ subject to such assignment ~~(or a standard indemnity letter from the respective assigning Lender in respect of any lost Note or Notes)~~ and payment by ~~the assigning Lender or~~ the assignee to the Agent of a registration and processing ~~fees~~ fee of $~~3,500 in~~ 2,000.00, the ~~aggregate (except with respect~~ Agent shall accept such Assignment and Acceptance. Promptly upon delivering such Assignment and Acceptance to ~~assignments (A) to any Related Lender Party or another Lender or (B) by~~ the Agent, the ~~Syndication Agent or the Documentation Agent, in their capacities as Lenders), the Agent~~ assigning Lender shall ~~promptly accept such Assignment and Acceptance and record the information contained therein in the Register and~~ give notice ~~of such acceptance and recordation~~ thereof to the ~~Lenders~~ Borrowers and the ~~Borrower~~other Lenders. Such Assignment and Acceptance and the assignment evidenced thereby shall only be effective upon appropriate entries with respect to the information contained therein being made in the Register pursuant to subparagraph (iv) above. (vi) Within five (5) Business Days after receipt of such notice, the ~~Borrower shall, if requested by the assignee Lender,~~ Borrowers shall execute and deliver to the Agent in exchange for ~~evidence of the delivery to the Agent of a copy of each~~ such surrendered ~~Note, marked "Superseded", one~~ Note(s) a new Note or ~~more new~~ Notes payable to the order of such assignee in an amount equal to the portion of the ~~applicable Commitment~~ Loan(s) assumed ~~and/or Loans purchased~~ by such assignee pursuant to such Assignment and Acceptance and a new Note or Notes payable to the order of the assigning Lender in an amount equal to the portion of the ~~applicable Commitment(s) and/or~~ Loans retained by it hereunder. Such new Notes shall be dated the effective date of such Assignment and Acceptance and shall otherwise be in substantially the form provided in ~~Sections 1.01, 1.03, 1.04 or 1.04A as applicable~~ARTICLE II. ~~Copies of~~ The canceled Notes surrendered by the ~~superseded Notes~~ assigning Lender shall be ~~delivered~~ returned to the ~~Borrower~~ Borrowers upon the execution and delivery of such new ~~Notes and the original superseded Notes shall be returned to the assignors thereof~~Notes. (~~vii~~vi) Each Lender may sell participations in all or a portion of its rights and obligations under this Agreement (including, without limitation, all or a portion of its Commitments and the Notes held by it); provided, however, that, no (A) the selling Lender shall ~~transfer or grant any participation~~ remain obligated under ~~which the participant shall have rights to approve any amendment to or waiver of~~ this Agreement to the extent as it would if it had not sold such participation, (B) the selling Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (C) at no time shall the selling Lender agree with such participant to take or refrain from taking any action hereunder or under any other Loan Document, except that the selling Lender may agree not to consent, without such participant's consent, to any of the actions referred to ARTICLE XI, to the extent ~~such amendment or waiver would (A) extend~~ that the final scheduled maturity of any Loan or Note in which such participant is participating, or reduce the rate or extend the time of payment of interest or fees thereon (except in connection with a waiver of applicability of any post-default increase in interest rates) or reduce the principal amount thereof, or increase the amount of the participant's participation over the amount thereof, or increase the amount of the participant's participation over the amount thereof then in effect (it being understood that no waiver or modification of any condition precedent, covenant or Default or of any mandatory reduction in the aggregate Commitments shall constitute a change in the terms of such participation, that an increase in any Commitment or Loan shall be permitted without same require the consent of any participant if the participant's participation is not increased as a result thereof and that any amendment or modification to the financial definitions in this Agreement shall not constitute a reduction in any rate of interest or fees for purposes of this clause (A))each Lender hereunder, (B) consent to the assignment or transfer by the Borrower of any of its rights and obligations under this Agreement or (C) release all or substantially all of the Collateral under all of the Security Documents (except as expressly provided in the Security Documents) supporting the Loans hereunder in which such participant is participating or (D) eliminate the rights set forth in Section 1.21. In the case of any such participation, the participant shall not have any rights under this Agreement or any of the other Loan Documents (the participant's rights against such Lender in respect of such participation to be those set forth in the agreement executed by such Lender in favor of the participant relating thereto) and all amounts payable by the ~~Borrower~~ Borrowers hereunder shall be determined as if such Lender had not sold such ~~participation~~participation and no participant shall be entitled to receive any greater amount pursuant to this Agreement than the selling Lender would have been entitled to receive in respect of the amount of the participation transferred by such Lender to such participant had no such transfer occurred, and (E) the Borrowers, the Agent, the Co-Agent and the other Lenders shall continue to deal solely and directly with the selling Lender in connection with such Lender's rights and obligations under this Agreement. (~~viii~~vii) Except ~~for~~ during the existence of an Event of Default, no assignment ~~made~~ by a Lender referred to ~~(i) another Lender, (ii)~~ above other than to a separately organized branch or Affiliate of ~~a Lender,~~ such Lender and other than under paragraph (~~iii~~b)(iii) ~~a Related Lender Party or (iv) a Qualified Institutional Lender, and except during the existence of a Default, no assignment referred to above~~ hereof shall be permitted without the prior written consent of the ~~Agent and the Borrower~~Managing Agents, which consent shall not be unreasonably withheld or delayed. (ixviii) ~~The~~ No Borrower may ~~not~~ assign any of its rights or delegate any of its duties or obligations hereunder. (x) To the extent that an assignment of all or any portion of a Lender's Commitment and outstanding Loans pursuant to subsection (b) of Article XI or this Article XII would, due to circumstances existing at the time of such assignment, result in costs under Sections 1.11, 1.13 or 1.14 which are increased from those being charged by the respective assigning Lender prior to such assignment, then the Borrower shall not be obligated to pay such increased costs (although the Borrower shall be obligated to pay any other increased costs of the type described above resulting from changes after the date of the respective assignment). (xiix) Any Lender may, in connection with any assignment or participation pursuant to this Section, disclose to the assignee or participant any information relating to the ~~Companies and the Parent Affiliates~~ Borrowers, Parents or Guarantors furnished to such Lender by or on behalf of the ~~Borrower~~ Borrowers and such assignee or participant shall treat such information as confidential.

Appears in 1 contract

Samples: Loan Agreement (Triathlon Broadcasting Co)

Benefit of Agreement Assignments and Participations. (a) This Agreement shall be binding upon and inure to the benefit of and be enforceable by the ~~Borrower, the Lenders and the Agent and their~~ respective successors and ~~permitted assigns~~assigns of the parties hereto; provided, ~~and all subsequent holders of~~ however, no Obligor may assign or transfer any of its rights, obligations or interest hereunder or under any other Credit Document without the ~~Notes or any portion thereof~~prior written consent of each Bank. (b) Each ~~Lender~~ Bank may assign its rights and interests under this Agreement, the Notes and the Security Documents and/or delegate its obligations hereunder and thereunder, in whole or in part, and sell participations in the Notes and the Security Documents as security therefor, provided as follows: (i) Any such assignment, other than an assignment in whole, made other than to (A) another Lender, (B) a separately organized branch of a Lender or (C) a Related Lender Party, shall reflect an assignment of such assigning Lender's Notes and Commitments which is in an aggregate principal amount of at least $500,000, unless each of the Borrower and the Agent otherwise consents to a lesser amount. (ii) Notwithstanding any provision of this Agreement to the contrary, (A) each Lender may at any time pledge all or any portion of its rights under this Agreement and each of the other Loan Documents, including without limitation its Loans and the Notes held by such Lender, to a Federal Reserve Bank (or equivalent thereof in the case of Lenders chartered outside of the United States) in support of borrowings made by such Lender from such Federal Reserve Bank and (B) any Lender that is a fund or similar investment vehicle that invests in or makes commercial loans may, without the consent of the Agent or the Borrower, pledge all or any portion of its Notes or Loans to any holders of obligations owed, or securities issued, by such Person, as security for such obligations or securities, or to any trustee for, or any other representative of, such holders; provided that any foreclosure or similar action by such trustee shall be subject to the provisions of this Section concerning assignments. No pledge pursuant to this subsection (ii) shall release the transferor Lender from any of its obligations and liabilities under the Loan Documents. (iii) Any assignments and/or delegations made hereunder shall be pursuant to an instrument of assignment and acceptance (the "Assignment and Acceptance") substantially in the form of Schedule 12 and the parties to each such assignment shall execute and deliver to the Agent for its acceptance the Assignment and Acceptance together with any Note or Notes subject thereto. Upon such execution and delivery, from and after the effective date specified in each Assignment and Acceptance, which effective date shall be at least five (5) Business Days after the execution thereof unless otherwise permitted by the Agent, (A) the assignee thereunder shall become a party hereto and, to the extent provided in such Assignment and Acceptance, have the rights and obligations of a Lender hereunder with applicable Loans as set forth therein and (B) the assigning Lender thereunder shall, to the extent provided in such assignment, be released from its obligations under this Agreement as to that portion of its obligation being so assigned and delegated. The Assignment and Acceptance shall be deemed to amend this Agreement to the extent, and only to the extent, necessary to reflect the addition of the assignee as a Lender and the resulting adjustment of Loans arising from the purchase by and delegation to such assignee of all or a portion of the rights and obligations of such assigning Lender under this Agreement. (iv) The Agent, on behalf of the Borrower, shall maintain at the address of the Agent referred to in Section 13.03 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 Commitments of, and principal amounts of the Loans owing to, and any Notes evidencing the Loans owned by, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, the 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; provided that in the case of an assignment by a Lender to any Related Lender Party that is not reflected on the Register, the assigning Lender shall maintain a comparable register on behalf of the Agent. 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. (v) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and the assignee together with the Note or Notes, if any, subject to such assignment (or a standard indemnity letter from the respective assigning Lender in respect of any lost Note or Notes) and payment by the assigning Lender or the assignee to the Agent of registration and processing fees of $3,500 in the aggregate (except with respect to assignments (A) to any Related Lender Party or another Lender or (B) by the Agent, the Syndication Agent or the Documentation Agent, in their capacities as Lenders), the Agent shall promptly accept such Assignment and Acceptance and record the information contained therein in the Register and give notice of such acceptance and recordation to the Lenders and the Borrower. Such Assignment and Acceptance and the assignment evidenced thereby shall only be effective upon appropriate entries with respect to the information contained therein being made in the Register pursuant to subparagraph (iv) above. (vi) Within five (5) Business Days after receipt of such notice, the Borrower shall, if requested by the assignee Lender, execute and deliver to the Agent in exchange for evidence of the delivery to the Agent of a copy of each such surrendered Note, marked "Superseded", one or more new Notes payable to the order of such assignee in an amount equal to the portion of the applicable Commitment assumed and/or Loans purchased by such assignee pursuant to such Assignment and Acceptance and a new Note payable to the order of the assigning Lender in an amount equal to the portion of the applicable Commitment(s) and/or Loans retained by it hereunder. Such new Notes shall be dated the effective date of such Assignment and Acceptance and shall otherwise be in substantially the form provided in Sections 1.01, 1.03, 1.04 or 1.04A as applicable. Copies of the superseded Notes shall be delivered to the Borrower upon execution and delivery of such new Notes and the original superseded Notes shall be returned to the assignors thereof. (vii) Each Lender may sell participations in all or a portion of its ~~rights~~ Loans or Commitments hereunder to one or more Eligible Assignees each of which assignees shall become a party to this Agreement as a Bank by execution of an assignment agreement, substantially in the form of Exhibit J; provided that, (i) at such time Schedule I shall be deemed modified to reflect the Commitments of such new Bank and of the existing Banks; (ii) the Obligors will issue new Notes to such new Bank and to the assigning Bank upon the request of such new Bank or assigning Bank in replacement of the original Notes, such new Notes to be in conformity with the requirements of Section 2.4 to the extent needed to reflect the ownership of the Loans; (iii) the Administrative Agent shall receive at the time of each such assignment, from the assignee, the payment of a non-refundable assignment fee of U.S.$3,500; and (iv) each such assignment shall be in a minimum amount of U.S.$10,000,000. To the extent of any assignment pursuant to this Section 13.3(b), the assigning Bank shall be relieved of its obligations hereunder with respect to its assigned Commitments and Loans. No transfer or assignment under this ~~Agreement (~~Section 13.3(b) will be effective until recorded by the Administrative Agent on the Register pursuant to Section 13.3(c). Notwithstanding the foregoing, no assignment after Successful Syndication shall increase the withholding tax burden on the Borrowers based on the Applicable Law in effect as of the date of such assignment, including, without limitation, ~~all or a portion of the Notes held by it~~any additional amounts payable under Section 4.5(a); provided, however, ~~that~~that such limitation shall not prevent any such assignment, but shall shift the burden of any such increased cost, to the extent such cost relates solely to Applicable Law in effect as of the date of such assignment, to the relevant assignee throughout the remainder of the term of this Agreement. (c) The Borrowers hereby designate the Administrative Agent to serve as the Borrowers’ agent, solely for purposes of this Section 13.3(c), to maintain a register (the “Register”) on which it will record the Commitments from time to time of each of the Banks, the Loans made by each of the Banks and each repayment in respect of the principal amount of the Loans of each Bank. The requirements of this Section 13.3(c) and Section 13.3(b) are intended to result in the Loans being in “registered form” for purposes of Section 871, Section 881 or any other applicable provision of the Code, and shall be interpreted and applied in a manner consistent therewith. Failure to make any such recordation, or any error in such recordation shall not affect the Borrowers’ obligations in respect of the Loans. Each Borrower agrees to indemnify the Administrative Agent from and against any and all losses, claims, damages and liabilities of whatsoever nature which may be imposed on, asserted against or incurred by the Administrative Agent in performing its duties under this Section 13.3(c), except to the extent that such losses, claims, damages or liabilities were caused by the gross negligence or willful misconduct of the Administrative Agent. (d) Notwithstanding the foregoing, any Bank may transfer or grant participations in its rights hereunder without the consent of any Obligor. In connection with any such participation, such Bank shall remain a “Bank” for all purposes hereunder and the participant shall not constitute a “Bank” hereunder and no ~~Lender~~ Bank shall transfer or grant any participation under which the participant shall have rights to approve any amendment to or waiver of this Agreement or any other ~~Loan Document,~~ Credit Document except to the extent such amendment or waiver would (Ai) extend the final scheduled maturity of any Loan or Note in which such participant is participating, or reduce the rate or extend the time of payment of interest or fees thereon (except in connection with a waiver of applicability of any post-default increase in interest rates) or reduce the principal amount thereof, or increase the ~~amount of the participant's participation over the amount thereof, or increase the amount of the participant's participation~~ Commitments in which such participant is participating over the amount thereof then in effect (it being understood that no a waiver ~~or modification~~ of any ~~condition precedent, covenant or~~ Default or Event of ~~any mandatory reduction in the aggregate Commitments~~ Default shall not constitute a change in the terms of ~~such participation~~any Commitment, and that an increase in any Commitment ~~or Loan~~ shall be permitted without the consent of any participant if the participant's ’s participation is not increased as a result ~~thereof and that any amendment~~ thereof) or ~~modification to the financial definitions in this Agreement shall not constitute a reduction in any rate of interest or fees for purposes of this clause~~ (~~A)), (B~~ii) consent to the assignment or transfer by ~~the Borrower~~ any Obligor of any of its rights and obligations under this Agreement or (C) release all or substantially all of the Collateral under all of the Security Documents (except as expressly provided in the Security Documents) supporting the Loans hereunder in which such participant is participating or (D) eliminate the rights set forth in Section 1.21Agreement. In the case of any such participation, the participant shall not have any rights under this Agreement or any of the other ~~Loan~~ Credit Documents (the participant's ’s rights against such ~~Lender~~ Bank in respect of such participation to be those set forth in the agreement executed by such ~~Lender~~ Bank in favor of the participant relating thereto) and all amounts payable by the ~~Borrower~~ Borrowers hereunder shall be determined as if such ~~Lender~~ Bank had not sold such participation, except that the participant shall be entitled to the benefit of Article IV to the extent that such Bank would have been entitled thereto if it had not granted such participation. (~~viii~~e) ~~Except for an assignment made~~ In addition to the assignments and participations permitted under the foregoing provisions of this Section 13.3, any Bank may (~~i) another Lender, (ii) a separately organized branch of a Lender, (iii) a Related Lender Party~~ without notice or ~~(iv) a Qualified Institutional Lender, and except during the existence of a Default, no assignment referred to above shall be permitted without the prior written~~ consent of the ~~Agent~~ Administrative Agent, the Borrowers or any other Person and ~~the Borrower, which consent shall not be unreasonably withheld or delayed. (ix~~without payment of any fee) ~~The Borrower may not~~ assign ~~any of its rights or delegate any of its duties or obligations hereunder. (x) To the extent that an assignment of~~ and pledge all or any portion of ~~a Lender's Commitment~~ its Loans and ~~outstanding Loans~~ Notes to any U.S. Federal Reserve Bank as collateral security pursuant to subsection (b) of Article XI or this Article XII would, due to circumstances existing at the time of such assignment, result in costs under Sections 1.11, 1.13 or 1.14 which are increased from those being charged by the respective assigning Lender prior to such assignment, then the Borrower shall not be obligated to pay such increased costs (although the Borrower shall be obligated to pay any other increased costs Regulation A of the ~~type described above resulting from changes after the date~~ Board of Governors of the ~~respective assignment)~~U.S. Federal Reserve System and any operating circular issued by such Federal Reserve Bank. No such assignment shall release the assigning Bank from its obligations hereunder. (xi) Any Lender may, in connection with any assignment or participation pursuant to this Section, disclose to the assignee or participant any information relating to the Companies and the Parent Affiliates furnished to such Lender by or on behalf of the Borrower and such assignee or participant shall treat such information as confidential.

Appears in 1 contract

Samples: Senior Export and Working Capital Facility Agreement (Gerdau Ameristeel Corp)

Benefit of Agreement Assignments and Participations. (a) This Agreement shall be binding upon and inure to the benefit of and be enforceable by the ~~Borrower, the Lenders and the Agent and their~~ respective successors and ~~permitted assigns, and all subsequent holders~~ assigns of the parties hereto; provided that the Borrower may not assign or transfer any of its interest hereunder without the ~~Notes or any portion thereof~~prior written consent of the Lenders. (b) Any Lender may make, carry or transfer Loans at, to or for the account of, any of its branch offices or the office of an Affiliate of such Lender except to the extent such transfer would result in increased costs to the Borrower. (c) Each Lender may assign (with the consent of the Administrative Agent, if such proposed assignment is not to an existing Lender or an Affiliate of an existing Lender, such consent not to be unreasonably withheld, conditioned or delayed, after consultation with the Borrower) to one or more banks or other entities all or a portion of its rights and ~~interests~~ obligations under this Agreement, the Notes and the Security Documents and/or delegate its obligations hereunder and thereunder, in whole or in part, and sell participations in the Notes and the Security Documents as security therefor, provided as follows: (i) Any such assignment, other than an assignment in whole, made other than to (A) another Lender, (B) a separately organized branch Letters of a Lender or (C) a Related Lender Party, shall reflect an assignment of such assigning Lender's Notes and Commitments which is in an aggregate principal amount of at least $500,000, unless each of the Borrower and the Agent otherwise consents to a lesser amount. (ii) Notwithstanding any provision of this Agreement to the contrary, (A) each Lender may at any time pledge all or any portion of its rights under this Agreement and each of the other Loan Documents, including without limitation its Loans and the Notes held by such Lender, to a Federal Reserve Bank (or equivalent thereof in the case of Lenders chartered outside of the United States) in support of borrowings made by such Lender from such Federal Reserve Bank and (B) any Lender that is a fund or similar investment vehicle that invests in or makes commercial loans may, without the consent of the Agent or the Borrower, pledge all or any portion of its Notes or Loans to any holders of obligations owed, or securities issued, by such Person, as security for such obligations or securities, or to any trustee for, or any other representative of, such holdersCredit; provided that any foreclosure or similar action by such trustee shall be subject to the provisions of this Section concerning assignments. No pledge pursuant to this subsection (ii) shall release the transferor Lender from any of its obligations and liabilities under the Loan Documents. (iii) Any assignments and/or delegations made hereunder shall be pursuant to an instrument of assignment and acceptance (the "Assignment and Acceptance") substantially in the form of Schedule 12 and the parties to each no such assignment shall ~~execute and deliver to~~ be for less than $5,000,000 of such Lender's Commitments or Loans, as the ~~Agent for its acceptance the Assignment and Acceptance together with any Note or Notes subject thereto~~case may be. Upon such ~~execution~~ execution, delivery and ~~delivery~~acceptance, from and after the effective date ~~specified in each~~ (the "Effective Date") of such Assignment and ~~Acceptance, which effective date shall be at least five~~ Acceptance (~~5) Business Days after the execution thereof unless otherwise permitted by the Agent, (A~~x) the assignee thereunder shall ~~become~~ be a party ~~hereto~~ hereto, and, to the extent ~~provided in~~ that rights and obligations hereunder have been assigned to and assumed by it pursuant to such Assignment and Acceptance, such assignee shall have the rights and obligations of a Lender hereunder ~~with applicable Loans as set forth therein~~ and (By) the ~~assigning~~ Lender assignor thereunder shall, to the extent ~~provided in~~ that rights and obligations hereunder have been assigned by it pursuant to such ~~assignment~~Assignment and Acceptance, relinquish its rights and be released from its obligations under this Agreement ~~as to that portion~~ (and, in the case of ~~its obligation being so assigned and delegated. The~~ an Assignment and Acceptance shall be deemed to amend this Agreement to the extent, and only to the extent, necessary to reflect the addition of the assignee as a Lender and the resulting adjustment of Loans arising from the purchase by and delegation to such assignee of covering all or a the remaining portion of ~~the~~ an assigning Lender's rights and obligations under this Agreement, such Lender shall cease to be a party hereto). (d) By executing and delivering an Assignment and Acceptance, the assignee thereunder confirms and agrees as follows: (i) other than as provided in such Assignment and Acceptance, the assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement, the Notes, the Letters of Credit or any other instrument or document furnished pursuant hereto, (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of the Borrower or any other Credit Party or OPNY Credit Party or the performance or observance by the Borrower or any other Credit Party or OPNY Credit Party of any of its obligations under this Agreement. , any other Financing Document or Transaction Document or any other instrument or document furnished pursuant hereto or thereto, (iviii) ~~The Agent~~such assignee confirms that it has received a copy of this Agreement, ~~on behalf~~ together with copies of the ~~Borrower, shall maintain at the address of the Agent~~ financial statements referred to in Section ~~13.03~~ 5.10 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, (iv) such assignee will, independently and without reliance upon the Lead Arrangers, the Agents, the Issuing Bank, such assigning Lender or any other Lender 123 and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (v) such assignee appoints and authorizes the Administrative Agent to take such action as agent on its behalf and to exercise such powers under this Agreement and the other Financing Documents as are delegated to the Administrative Agent by the terms hereof, together with such powers as are reasonably incidental thereto and (vi) such assignee agrees that it will perform in accordance with their terms all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender. (e) The Administrative Agent shall maintain at its address referred to in Section 9.01 a copy of each Assignment and Acceptance delivered to and accepted by it and a register ~~(the "Register")~~ for the recordation of the names and addresses of the Lenders and the Commitments of, and principal ~~amounts~~ amount of the Loans owing to, ~~and any Notes evidencing the Loans owned by,~~ each Lender from time to ~~time~~time (the "Register"). The entries in the Register shall be ~~conclusive~~conclusive and binding for all purposes, ~~in the absence of~~ absent manifest error, and the ~~Borrower, the Agent~~ Borrower and ~~the Lenders shall~~ each Secured Party may treat each Person whose name is recorded in the Register as ~~the owner of~~ a ~~Loan or other obligation~~ Lender 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; provided that in the case of an assignment by a Lender to any Related Lender Party that is not reflected on the Register, the assigning Lender shall maintain a comparable register on behalf of the AgentAgreement. The Register and copies of each Assignment and Acceptance shall be available for inspection by the ~~Borrower~~ Borrower, the Issuing Bank or any Lender at any reasonable time and from time to time upon reasonable prior notice. (vf) Upon its receipt of an Assignment and Acceptance executed by an assigning ~~Lender and the assignee~~ Lender, together with the Note or ~~Notes, if any,~~ Notes subject to such assignment (or a standard indemnity letter from the respective assigning Lender in respect of any lost Note or Notes) and payment by the assigning Lender or the assignee to the Agent of registration and processing fees of $3,500 in the aggregate (except with respect to assignments (A) to any Related Lender Party or another Lender or (B) by the Agentassignment, the ~~Syndication~~ Administrative Agent or shall, if such Assignment and Acceptance has been completed and is in substantially the ~~Documentation Agent~~form of Exhibit O hereto, ~~in their capacities as Lenders), the Agent shall promptly~~ (i) accept such Assignment and ~~Acceptance and~~ Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice ~~of such acceptance and recordation~~ thereof to the ~~Lenders~~ Issuing Bank and the Borrower. Such Assignment and Acceptance and the assignment evidenced thereby shall only be effective upon appropriate entries with respect to the information contained therein being made in the Register pursuant to subparagraph (iv) above. (vi) Within five (5) Business Days after its receipt of such notice, the Borrower ~~shall, if requested by the assignee Lender,~~ shall execute and deliver to the Administrative Agent in exchange for ~~evidence of~~ the ~~delivery to the Agent of~~ surrendered Note or Notes a ~~copy of each such surrendered Note, marked "Superseded", one~~ new Note or ~~more new~~ Notes ~~payable~~ to the order of such assignee in an amount equal to the ~~portion of the applicable~~ Commitment or Commitments assumed ~~and/or Loans purchased~~ by ~~such assignee~~ it pursuant to such Assignment and Acceptance ~~and~~ and, if the assigning Lender has retained a Commitment or Commitments hereunder, a new Note ~~payable~~ or Notes to the order of the assigning Lender in an amount equal to the ~~portion of the applicable Commitment(s) and/or Loans~~ Commitment or Commitments retained by it hereunder. Such new Note or Notes shall re-evidence the indebtedness outstanding under the old Notes or Notes and shall be in an aggregate principal amount equal to the aggregate principal amount of such surrendered Note or Notes, shall be dated the effective date of such Assignment and Acceptance and shall otherwise be in substantially the form ~~provided in Sections 1.01, 1.03, 1.04 or 1.04A as applicable. Copies~~ of the ~~superseded~~ Note or Notes ~~shall be delivered~~ subject to ~~the Borrower upon execution and delivery of~~ such ~~new Notes and the original superseded Notes shall be returned to the assignors thereof~~assignments. (~~vii~~g) Each Lender may sell participations (without the consent of the Administrative Agent, the Issuing Bank, the Borrower or any other Lender) to one or more parties in or to all or a portion of its rights and obligations under this Agreement (including, without limitation, all or a portion of its Commitment, the Loans owing to it and the Note or Notes held by it and the participations in the Letters of Credit held by it); ~~provided~~provided that (i) such Lender's obligations under this Agreement (including, ~~however~~without limitation, ~~that~~its Commitment) shall remain unchanged, no (ii) such Lender shall ~~transfer~~ remain solely responsible to other parties hereto for the performance of such obligations, (iii) such Lender shall remain the holder of any such Note for all purposes of this Agreement, (iv) 124 the Borrower, the Administrative Agent, the Issuing Bank and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender's rights and obligations under this Agreement and (v) such Lender shall not transfer, grant, assign or ~~grant~~ sell any participation under which the participant shall have rights to approve any amendment to or waiver of this Agreement ~~or any other Loan Document,~~ except to the extent such amendment or waiver would (A) extend the final ~~scheduled~~ maturity date or the date for the payments of any ~~Loan~~ installment of fees or ~~Note~~ principal or interest of any Loans in which such participant is participating, or (B) reduce the rate or extend the time of payment of interest or fees thereon (except in connection with a waiver of applicability of any post-default increase in interest rates) or reduce the principal amount thereof, or increase the amount of any installment of principal of the ~~participant's participation over~~ Loans in which such participant is participating, (C) reduce the ~~amount thereof~~interest rate applicable to the Loans in which such participant is participating, (D) reduce any fees payable hereunder, or ~~increase the amount of the participant's participation over the amount thereof then in effect~~ (it being understood that no waiver or modification of any condition precedent, covenant or Default or of any mandatory reduction in the aggregate Commitments shall constitute a change in the terms of such participation, that an increase in any Commitment or Loan shall be permitted without the consent of any participant if the participant's participation is not increased as a result thereof and that any amendment or modification to the financial definitions in this Agreement shall not constitute a reduction in any rate of interest or fees for purposes of this clause (A)), (B) consent to the assignment or transfer by the Borrower of any of its rights and obligations under this Agreement or (CE) release all or substantially all of the Collateral under all of the Security Documents (except as expressly provided in the Security Documents) supporting the Loans hereunder in which such participant is participating or (D) eliminate the rights set forth in Section 1.21. In the case of any such participation, the participant shall not have any rights under this Agreement or any of the other Loan Documents (the participant's rights against such Lender in respect of such participation to be those set forth in the agreement executed by such Lender in favor of the participant relating thereto) and all amounts payable by the Borrower hereunder shall be determined as if such Lender had not sold such participationCollateral. (~~viii~~h) ~~Except for an assignment made to (i) another Lender~~Each Lender agrees that, (ii) a separately organized branch of a Lender, (iii) a Related Lender Party or (iv) a Qualified Institutional Lender, and except during the existence of a Default, no assignment referred to above shall be permitted without the prior written consent of the ~~Agent~~ Borrower and the ~~Borrower~~Administrative Agent, ~~which consent shall~~ it will not ~~be unreasonably withheld~~ make any assignment hereunder in any manner or ~~delayed~~under any circumstances that would require registration or qualification of, or filings in respect of, any Loan, Note or other Obligation under the securities laws of the United States of America or of any state. (ixi) ~~The Borrower~~ Any Lender may ~~not~~ at any time assign all or any portion of its rights ~~or delegate~~ under this Agreement and the other Financing Documents to the Federal Reserve Bank of the United States; provided, that any payment in respect of such assigned rights made by the Borrower to the assigning Lender in accordance with the terms of this Agreement shall satisfy the Borrower's obligations hereunder in respect of such assigned rights to the extent of such payment. No such assignment shall release the assignor Lender from its ~~duties or~~ obligations hereunder. (xj) To After the ~~extent that~~ completion of the primary and general syndication of the Loans described herein, each transferor Lender shall pay the Administrative Agent a fee of $2,000 in the case of an assignment to an existing Lender or an Affiliate of an existing Lender or $3,500.00 in all ~~or any portion of a Lender's Commitment and outstanding Loans pursuant to subsection (b) of Article XI or this Article XII would~~other cases, due to circumstances existing at the time of such assignment, result in costs under Sections 1.11, 1.13 or 1.14 which are increased from those being charged by the respective assigning Lender prior to such assignment, then the Borrower shall not be obligated to pay such increased costs (although the Borrower shall be obligated to pay any other increased costs of the type described above resulting from changes after the date of the respective assignment). (xi) Any Lender may, in connection with any for processing each assignment ~~or participation~~ made pursuant to this Section, disclose to the assignee or participant any information relating to the Companies and the Parent Affiliates furnished to such Lender by or on behalf of the Borrower and such assignee or participant shall treat such information as confidentialSection 9.06.

Appears in 1 contract

Samples: Credit Agreement (Orion Power Holdings Inc)

Benefit of Agreement Assignments and Participations. (a) This Agreement shall be binding upon and inure to the benefit of and be enforceable by the ~~Borrower, the Lenders and the Agent and their~~ respective successors and ~~permitted assigns, and all subsequent holders of any~~ assigns of the ~~Notes or any portion thereof. (b) Each Lender may assign its rights and interests under this Agreement~~parties hereto; provided, ~~the Notes and the Security Documents and/or delegate its obligations hereunder and thereunder~~however, ~~in whole or in part, and sell participations in the Notes and the Security Documents as security therefor, provided as follows:~~ that (i) ~~Any such assignment~~no Credit Party may assign or transfer any of its rights, obligations or interests hereunder or under any other than an assignment in whole, made other than to (A) another Lender, (B) a separately organized branch of a Lender or (C) a Related Lender Party, shall reflect an assignment of such assigning Lender's Notes and Commitments which is in an aggregate principal amount of at least $500,000, unless each Credit Document without the prior written consent of the ~~Borrower and the Agent otherwise consents to a lesser amount.~~ Lenders, (ii) ~~Notwithstanding~~ although any ~~provision of this Agreement to the contrary, (A) each~~ Lender may ~~at any time pledge~~ transfer, assign or grant participations in its rights hereunder, such Lender shall remain a “Lender” for all purposes hereunder (and may not transfer or assign all or any portion of its ~~rights under this Agreement~~ Revolving Loan Commitments hereunder except as provided in Sections 2.12 and ~~each of the other Loan Documents, including without limitation its Loans~~ 14.04(b)) and the ~~Notes held by such Lender~~transferee, ~~to a Federal Reserve Bank (~~assignee or ~~equivalent thereof in~~ participant, as the case ~~of Lenders chartered outside of the United States) in support of borrowings made by such Lender from such Federal Reserve Bank~~ may be, shall not constitute a “Lender” hereunder and (B) any Lender that is a fund or similar investment vehicle that invests in or makes commercial loans may, without the consent of the Agent or the Borrower, pledge all or any portion of its Notes or Loans to any holders of obligations owed, or securities issued, by such Person, as security for such obligations or securities, or to any trustee for, or any other representative of, such holders; provided that any foreclosure or similar action by such trustee shall be subject to the provisions of this Section concerning assignments. No pledge pursuant to this subsection (ii) shall release the transferor Lender from any of its obligations and liabilities under the Loan Documents. (iii) Any assignments and/or delegations made hereunder shall be pursuant to an instrument of assignment and acceptance (the "Assignment and Acceptance") substantially in the form of Schedule 12 and the parties to each such assignment shall execute and deliver to the Agent for its acceptance the Assignment and Acceptance together with any Note or Notes subject thereto. Upon such execution and delivery, from and after the effective date specified in each Assignment and Acceptance, which effective date shall be at least five (5) Business Days after the execution thereof unless otherwise permitted by the Agent, (A) the assignee thereunder shall become a party hereto and, to the extent provided in such Assignment and Acceptance, have the rights and obligations of a Lender hereunder with applicable Loans as set forth therein and (B) the assigning Lender thereunder shall, to the extent provided in such assignment, be released from its obligations under this Agreement as to that portion of its obligation being so assigned and delegated. The Assignment and Acceptance shall be deemed to amend this Agreement to the extent, and only to the extent, necessary to reflect the addition of the assignee as a Lender and the resulting adjustment of Loans arising from the purchase by and delegation to such assignee of all or a portion of the rights and obligations of such assigning Lender under this Agreement. (iv) The Agent, on behalf of the Borrower, shall maintain at the address of the Agent referred to in Section 13.03 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 Commitments of, and principal amounts of the Loans owing to, and any Notes evidencing the Loans owned by, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, the 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; provided that in the case of an assignment by a Lender to any Related Lender Party that is not reflected on the Register, the assigning Lender shall maintain a comparable register on behalf of the Agent. 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. (v) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and the assignee together with the Note or Notes, if any, subject to such assignment (or a standard indemnity letter from the respective assigning Lender in respect of any lost Note or Notes) and payment by the assigning Lender or the assignee to the Agent of registration and processing fees of $3,500 in the aggregate (except with respect to assignments (A) to any Related Lender Party or another Lender or (B) by the Agent, the Syndication Agent or the Documentation Agent, in their capacities as Lenders), the Agent shall promptly accept such Assignment and Acceptance and record the information contained therein in the Register and give notice of such acceptance and recordation to the Lenders and the Borrower. Such Assignment and Acceptance and the assignment evidenced thereby shall only be effective upon appropriate entries with respect to the information contained therein being made in the Register pursuant to subparagraph (iv) above. (vi) Within five (5) Business Days after receipt of such notice, the Borrower shall, if requested by the assignee Lender, execute and deliver to the Agent in exchange for evidence of the delivery to the Agent of a copy of each such surrendered Note, marked "Superseded", one or more new Notes payable to the order of such assignee in an amount equal to the portion of the applicable Commitment assumed and/or Loans purchased by such assignee pursuant to such Assignment and Acceptance and a new Note payable to the order of the assigning Lender in an amount equal to the portion of the applicable Commitment(s) and/or Loans retained by it hereunder. Such new Notes shall be dated the effective date of such Assignment and Acceptance and shall otherwise be in substantially the form provided in Sections 1.01, 1.03, 1.04 or 1.04A as applicable. Copies of the superseded Notes shall be delivered to the Borrower upon execution and delivery of such new Notes and the original superseded Notes shall be returned to the assignors thereof. (vii) Each Lender may sell participations in all or a portion of its rights and obligations under this Agreement (including, without limitation, all or a portion of the Notes held by it); provided, however, that, no Lender shall transfer or grant any participation under which the participant shall have rights to approve any amendment to or waiver of this Agreement or any other ~~Loan Document,~~ Credit Document except to the extent such amendment or waiver would (Ax) extend the final scheduled maturity of any Loan or Note in which such participant is participating, or reduce the rate or extend the time of payment of interest or ~~fees~~ Commitment Commission thereon (except (m) in connection with a waiver of applicability of any post-default increase in interest ~~rates~~rates and (n) or reduce the principal amount thereof, or increase the amount of the participant's participation over the amount thereof, or increase the amount of the participant's participation over the amount thereof then in effect (it being understood that no waiver or modification of any condition precedent, covenant or Default or of any mandatory reduction in the aggregate Commitments shall constitute a change in the terms of such participation, that an increase in any Commitment or Loan shall be permitted without the consent of any participant if the participant's participation is not increased as a result thereof and that any amendment or modification to the financial definitions in this Agreement shall not constitute a reduction in ~~any~~ the rate of interest ~~or fees~~ for purposes of this clause (Ax)) or reduce the principal amount thereof, or increase the amount of the participant’s participation over the amount thereof then in effect (it being understood that a waiver of any Default or Event of Default or of a mandatory reduction in the Total Commitment shall not constitute a change in the terms of such participation, and that an increase in any Revolving Loan Commitment or Loan shall be permitted without the consent of any participant if the participant’s participation is not increased as a result thereof), (By) consent to the assignment or transfer by the Borrower of any of its rights and obligations under this Agreement or (Cz) release all or substantially all of the Collateral under all of the Security Documents (except as expressly provided in the ~~Security~~ Credit Documents) ~~supporting~~ securing the Loans hereunder in which such participant is ~~participating or (D) eliminate the rights set forth in Section 1.21~~participating. In the case of any such participation, the participant shall not have any rights under this Agreement or any of the other ~~Loan~~ Credit Documents (the participant's ’s rights against such Lender in respect of such participation to be those set forth in the agreement executed by such Lender in favor of the participant relating thereto) and all amounts payable by the Borrower hereunder shall be determined as if such Lender had not sold such participation. (~~viii~~b) ~~Except for an assignment made~~ Notwithstanding the foregoing, any Lender (or any Lender together with one or more other Lenders) may (x) assign all or a portion of its Revolving Loan Commitment and/or its outstanding Loans to its (i) ~~another Lender~~parent company so long as such parent company is solvent and/or any affiliate of such Lender which is at least 50% owned by such Lender or its parent company (so long as such affiliate is solvent) or (ii) in the case of any Lender that is a fund that invests in bank loans, any other fund that invests in bank loans and is managed or advised by the same investment advisor of such Lender or by an Affiliate of such investment advisor (so long as such fund is solvent) or (iii) to one or more Lenders or (y) assign with the consent of the Borrower (which consent shall not be unreasonably withheld or delayed and shall not be required if any Event of Default is then in existence) all, or if less than all, a portion equal to at least $5,000,000 in the aggregate for the assigning Lender or assigning Lenders, of such Revolving Loan Commitments and outstanding principal amount of Loans hereunder to one or more Eligible Transferees (treating any fund that invests in bank loans and any other fund that invests in bank loans and is managed or advised by the same investment advisor of such fund or by an Affiliate of such investment advisor as a single Eligible Transferee), each of which assignees shall become a party to this Agreement as a Lender by execution of an Assignment and Assumption Agreement, provided that (i) at such time Schedule I shall be deemed modified to reflect the Revolving Loan Commitments (and/or outstanding Loans, as the case may be) of such new Lender and of the existing Lenders, (ii) ~~a separately organized branch~~ upon the surrender of a the relevant Notes assigned by the Lender, new Notes will be issued, at the Borrower’s expense, to such new Lender and to the assigning Lender upon the request of such new Lender or assigning Lender, such new Notes to be in conformity with the requirements of Section 2.05 (with appropriate modifications) to the extent needed to reflect the revised Revolving Loan Commitments (and/or outstanding Loans, as the case may be), (iii) ~~a Related Lender Party or (iv) a Qualified Institutional Lender, and except during~~ the ~~existence of a Default, no assignment referred to above shall be permitted without the prior written~~ consent of the Administrative Agent shall be required in connection with any assignment pursuant to preceding clause (y) and the ~~Borrower~~consent of the Issuing Lender shall be required in connection with any assignment pursuant to preceding clauses (x) and (y) (in each case, which consent shall not be unreasonably withheld or delayed. ), and (ixiv) ~~The Borrower may not assign~~ the Administrative Agent shall receive at the time of each such assignment, from the assigning or assignee Lender, the payment of a non-refundable assignment fee of $3,000. To the extent of any assignment pursuant to this Section 14.04(b), the assigning Lender shall be relieved of its ~~rights or delegate any~~ obligations hereunder with respect to its assigned Revolving Loan Commitments and outstanding Loans. At the time of ~~its duties or obligations~~ each assignment pursuant to this Section 14.04(b) to a Person which is not already a Lender hereunder~~. (x)~~ , the respective assignee Lender shall, to the extent legally entitled to do so, comply with Section 5.04(b). To the extent that an assignment of all or any portion of a Lender~~'s Commitment~~ ’s Revolving Loan Commitments and related outstanding ~~Loans~~ Obligations pursuant to ~~subsection (b) of Article XI~~ Section 2.12 or this ~~Article XII~~ Section 14.04(b) would, ~~due to circumstances existing~~ at the time of such assignment, result in increased costs under ~~Sections 1.11, 1.13~~ Section 2.09 or ~~1.14 which are increased~~ 2.10 from those being charged by the respective assigning Lender prior to such assignment, then the Borrower shall not be obligated to pay such increased costs (although the ~~Borrower~~ Borrower, in accordance with and pursuant to the other provisions of this Agreement, shall be obligated to pay any other increased costs of the type described above resulting from changes after the date of the respective assignment). (xic) ~~Any~~ Nothing in this Agreement shall prevent or prohibit any Lender ~~may~~from pledging its Loans and Notes hereunder to a Federal Reserve Bank in support of borrowings made by such Lender from such Federal Reserve Bank and, with prior notification to the Administrative Agent (but without the consent of the Administrative Agent or the Borrower), any Lender which is a fund may pledge all or any portion of its Loans and Notes to its trustee or to a collateral agent providing credit or credit support to such Lender in ~~connection with any assignment~~ support of its obligations to such trustee, such collateral agent or ~~participation~~ a holder of such obligations, as the case may be. No pledge pursuant to this ~~Section, disclose to~~ clause (c) shall release the ~~assignee or participant~~ transferor Lender from any ~~information relating to the Companies and the Parent Affiliates furnished to such Lender by or on behalf~~ of ~~the Borrower and such assignee or participant shall treat such information as confidential~~its obligations hereunder.

Appears in 1 contract

Samples: Credit Agreement (Trico Marine Services Inc)

Benefit of Agreement Assignments and Participations. (a) This Agreement shall be binding upon and inure to the benefit of the Borrower, the Lenders and the Agent and their respective successors and ~~permitted~~ assigns, and all subsequent holders of any of the Notes or any portion ~~thereof~~hereof. (b) Each Lender may assign its rights and interests under this Agreement, the Notes and the Security Documents and/or delegate its obligations hereunder and thereunder, in whole or in part, and sell participations in the Notes and the Security Documents as security therefor, provided as follows: (i) ~~Any such~~ No Lender shall make any assignment, other than to a separately organized branch or an Affiliate of the same Lender, if, after giving effect thereto, such Lender would hold less than $5,000,000 of the then aggregate outstanding principal amount of the Notes. (ii) Any such assignment ~~in whole,~~ made other than to ~~(A) another Lender, (B)~~ a separately organized ~~branch of~~ branch, or an Affiliate of, a Lender ~~or (C) a Related Lender Party,~~ shall reflect an assignment of such assigning Lender's Notes and Commitments which is in an aggregate principal amount of at least $~~500,000~~5,000,000, ~~unless each~~ and if greater, shall be an integral multiple of ~~the Borrower and the Agent otherwise consents to a lesser amount~~$1,000,000. (iiiii) Notwithstanding any provision of this Agreement to the contrary, ~~(A)~~ each Lender may at any time ~~pledge~~ assign all or any portion of its rights under this Agreement and each of the other Loan Documents, ~~including~~ including, without ~~limitation its Loans and~~ limitation, the Notes held by such Lender, to a Federal Reserve Bank (or equivalent thereof in the case of Lenders chartered outside of the United States) in support of borrowings made by such Lender from such Federal Reserve Bank and (B) any Lender that is a fund or similar investment vehicle that invests in or makes commercial loans may, without the consent of the Agent or the Borrower, pledge all or any portion of its Notes or Loans to any holders of obligations owed, or securities issued, by such Person, as security for such obligations or securities, or to any trustee for, or any other representative of, such holders); provided that ~~any foreclosure or similar action by~~ no such ~~trustee shall be subject to the provisions of this Section concerning assignments. No pledge pursuant to this subsection (ii)~~ assignment shall release ~~the transferor~~ a Lender from any of its obligations and liabilities under the Loan Documents. Any Federal Reserve Bank (or equivalent thereof) which receives such an assignment from any Lender may make further assignments of such rights in accordance with the provisions of this Section. (~~iii~~iv) Any assignments and/or delegations made hereunder shall be pursuant to an instrument of assignment and acceptance (the "Assignment and Acceptance") substantially in the form of Schedule 12 13(b)(iv) and the parties to each such assignment shall execute and deliver to the Agent for its acceptance the Assignment and Acceptance together with any Note or Notes subject thereto. Upon such execution and delivery, from and after the effective date specified in each Assignment and Acceptance, which effective date shall be at least five (5) Business Days after the execution ~~thereof unless otherwise permitted by the Agent~~thereof, (A) the assignee thereunder shall become a party hereto and, to the extent provided in such Assignment and Acceptance, have the rights and obligations of a Lender hereunder with ~~applicable Loans~~ Commitments as set forth therein and (B) the assigning Lender thereunder shall, to the extent provided in such assignment, be released from its obligations under this Agreement as to that portion of its obligation being so assigned and delegated. The Assignment and Acceptance shall be deemed to amend this Agreement to the extent, and only to the extent, necessary to reflect the addition of the assignee as a Lender and the resulting adjustment of ~~Loans~~ Commitments arising from the purchase by and delegation to such assignee of all or a portion of the rights and obligations of such assigning Lender under this Agreement. (iv) The Agent, on behalf of the Borrower, shall maintain at the address of the Agent referred to in Section 13.03 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 Commitments of, and principal amounts of the Loans owing to, and any Notes evidencing the Loans owned by, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, the 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; provided that in the case of an assignment by a Lender to any Related Lender Party that is not reflected on the Register, the assigning Lender shall maintain a comparable register on behalf of the Agent. 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. (v) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and the assignee together with the Note or ~~Notes, if any,~~ Notes subject to such assignment ~~(or a standard indemnity letter from the respective assigning Lender in respect of any lost Note or Notes)~~ and payment by ~~the assigning Lender or~~ the assignee to the Agent of a registration and processing ~~fees~~ fee of $~~3,500 in~~ 3,000, the ~~aggregate (except with respect~~ Agent shall accept such Assignment and Acceptance. Promptly upon delivering such Assignment and Acceptance to ~~assignments (A) to any Related Lender Party or another Lender or (B) by~~ the Agent, the ~~Syndication Agent or~~ assigning Lender shall give notice thereof to the ~~Documentation Agent, in their capacities as Lenders),~~ Borrower and the ~~Agent shall promptly accept such~~ other Lenders pursuant to a Notice of Assignment and Acceptance ~~and record the information contained therein~~ substantially in the ~~Register and give notice~~ form of ~~such acceptance and recordation to the Lenders and the Borrower~~Schedule 13(b)(v). Such Assignment and Acceptance and the assignment evidenced thereby shall only be effective upon appropriate entries with respect to the information contained therein being made in the Register pursuant to subparagraph (iv) above. (vi) Within five (5) Business Days after receipt of such notice, the Borrower ~~shall, if requested by the assignee Lender,~~ shall execute and deliver to the Agent in exchange for ~~evidence of the delivery to the Agent of a copy of~~ each such surrendered ~~Note, marked "Superseded", one or more~~ Note a new ~~Notes~~ Note payable to the order of such assignee in an amount equal to the portion of the applicable ~~Commitment~~ Commitment(s) assumed ~~and/or Loans purchased~~ by such assignee pursuant to such Assignment and Acceptance and a new Note payable to the order of the assigning Lender in an amount equal to the portion of the applicable Commitment(s) ~~and/or Loans~~ retained by it hereunder. Such new Notes shall be dated the effective date of such Assignment and Acceptance and shall otherwise be in substantially the form provided in ~~Sections~~ Section 1.01~~, 1.03, 1.04 or 1.04A as applicable~~. ~~Copies of the superseded~~ Canceled Notes shall be ~~delivered~~ returned to the Borrower upon the execution and delivery of such new ~~Notes and the original superseded Notes shall be returned to the assignors thereof~~Notes. (~~vii~~vi) Each Lender may sell participations in all or a portion of its rights and obligations under this Agreement (including, without limitation, all or a portion of its Commitment and the Notes held by it); provided, however, that, no (A) the selling Lender shall ~~transfer or grant any participation~~ remain obligated under ~~which the participant shall have rights to approve any amendment to or waiver of~~ this Agreement to the extent as it would if it had not sold such participation, (B) the selling Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (C) at no time shall the selling Lender agree with such participant to take or refrain from taking any action hereunder or under any other Loan Document, except that the selling Lender may agree not to consent, without such participant's consent, to any of the actions referred to Article XII, to the extent ~~such amendment or waiver would (A) extend~~ that the final scheduled maturity of any Loan or Note in which such participant is participating, or reduce the rate or extend the time of payment of interest or fees thereon (except in connection with a waiver of applicability of any post-default increase in interest rates) or reduce the principal amount thereof, or increase the amount of the participant's participation over the amount thereof, or increase the amount of the participant's participation over the amount thereof then in effect (it being understood that no waiver or modification of any condition precedent, covenant or Default or of any mandatory reduction in the aggregate Commitments shall constitute a change in the terms of such participation, that an increase in any Commitment or Loan shall be permitted without same require the consent of any participant if the participant's participation is not increased as a result thereof and that any amendment or modification to the financial definitions in this Agreement shall not constitute a reduction in any rate of interest or fees for purposes of this clause (A))each Lender hereunder, (B) consent to the assignment or transfer by the Borrower of any of its rights and obligations under this Agreement or (C) release all or substantially all of the Collateral under all of the Security Documents (except as expressly provided in the Security Documents) supporting the Loans hereunder in which such participant is participating or (D) eliminate the rights set forth in Section 1.21. In the case of any such participation, the participant shall not have any rights under this Agreement or any of the other Loan Documents (the participant's rights against such Lender in respect of such participation to be those set forth in the agreement executed by such Lender in favor of the participant relating thereto) and all amounts payable by the Borrower hereunder shall be determined as if such Lender had not sold such ~~participation~~participation and no participant shall be entitled to receive any greater amount pursuant to this Agreement than the selling Lender would have been entitled to receive in respect of the amount of the participation transferred by such Lender to such participant had no such transfer occurred, and (E) the Borrower, the Agent and the other Lenders shall continue to deal solely and directly with the selling Lender in connection with such Lender's rights and obligations under this Agreement. (~~viii~~vii) Except for an assignment made to ~~(i) another Lender, (ii)~~ a separately organized branch or an Affiliate of a Lender, ~~(iii) a Related Lender Party or (iv) a Qualified Institutional Lender, and except during the existence of a Default,~~ no assignment or participation referred to above shall be permitted without the prior written consent of the ~~Agent and the Borrower~~Agent, which consent shall not be unreasonably withheld or delayed. (ixviii) The Borrower may not assign any of its rights or delegate any of its duties or obligations hereunder. (x) To the extent that an assignment of all or any portion of a Lender's Commitment and outstanding Loans pursuant to subsection (b) of Article XI or this Article XII would, due to circumstances existing at the time of such assignment, result in costs under Sections 1.11, 1.13 or 1.14 which are increased from those being charged by the respective assigning Lender prior to such assignment, then the Borrower shall not be obligated to pay such increased costs (although the Borrower shall be obligated to pay any other increased costs of the type described above resulting from changes after the date of the respective assignment). (xiix) Any Lender may, in connection with any assignment or participation pursuant to this Section, disclose to the assignee or participant any information relating to the Companies ~~and the Parent Affiliates~~ furnished to such Lender by or on behalf of the Borrower and such assignee or participant shall treat such information as confidential.

Appears in 1 contract

Samples: Credit Agreement (Pegasus Communications Corp)

Benefit of Agreement Assignments and Participations. (a) This Agreement shall be binding upon and inure to the benefit of the Borrower, the Lenders and the Agent and their respective successors and permitted assigns, and all subsequent holders of any of the Notes or any portion thereof. (b) Each Lender may assign its rights and interests under this Agreement, the Notes and the Security Documents and/or delegate its obligations hereunder and thereunder, in whole or in part, and sell participations in the Notes and the Security Documents as security therefor, provided as follows: (i) Any such assignment, other than an assignment in whole, made other than to (A) another Lender, (B) a separately organized branch of a Lender or (C) a Related Lender Party, shall reflect an assignment of such assigning Lender's Notes and Commitments which is in an aggregate principal amount of at least $~~500,000~~5,000,000, ~~unless each~~ and if greater, shall be an integral multiple of ~~the Borrower and the Agent otherwise consents to a lesser amount~~$1,000,000. (ii) Notwithstanding any provision of this Agreement to the contrary, (A) each Lender may at any time pledge all or any portion of its rights under this Agreement and each of the other Loan Documents, including without limitation its Loans and the Notes held by such Lender, to a Federal Reserve Bank (or equivalent thereof in the case of Lenders chartered outside of the United States) in support of borrowings made by such Lender from such Federal Reserve Bank and (B) ~~any Lender that is a fund or similar investment vehicle that invests in or makes commercial loans may, without~~ with the consent of the ~~Agent or the Borrower~~Agent, any Lender which is a fund may pledge all or any portion of its Notes or Loans to ~~any holders~~ its trustee in support of its obligations ~~owed, or securities issued, by such Person, as security for such obligations or securities, or~~ to ~~any trustee for, or any other representative of, such holders; provided that any foreclosure or similar action by such trustee shall be subject to the provisions of this Section concerning assignments~~its trustee. No pledge pursuant to this subsection (ii) shall release the transferor Lender from any of its obligations and liabilities under the Loan Documents. (iii) Any assignments and/or delegations made hereunder shall be pursuant to an instrument of assignment and acceptance (the "Assignment and Acceptance") substantially in the form of Schedule 12 13 and the parties to each such assignment shall execute and deliver to the Agent for its acceptance the Assignment and Acceptance together with any Note or Notes subject thereto. Upon such execution and delivery, from and after the effective date specified in each Assignment and Acceptance, which effective date shall be at least five (5) Business Days after the execution ~~thereof unless otherwise permitted by the Agent~~thereof, (A) the assignee thereunder shall become a party hereto and, to the extent provided in such Assignment and Acceptance, have the rights and obligations of a Lender hereunder with applicable ~~Loans~~ Commitments as set forth therein and (B) the assigning Lender thereunder shall, to the extent provided in such assignment, be released from its obligations under this Agreement as to that portion of its obligation being so assigned and delegated. The Assignment and Acceptance shall be deemed to amend this Agreement to the extent, and only to the extent, necessary to reflect the addition of the assignee as a Lender and the resulting adjustment of ~~Loans~~ Commitments arising from the purchase by and delegation to such assignee of all or a portion of the rights and obligations of such assigning Lender under this Agreement. (iv) The Agent, on behalf of the Borrower, shall maintain at the address of the Agent referred to in Section 13.03 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 Commitments of, and principal amounts of the Loans owing to, and any Notes evidencing the Loans owned by, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, the 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; provided that in the case of an assignment by a Lender to any Related Lender Party that is not reflected on the Register, the assigning Lender shall maintain a comparable register on behalf of the Agent. 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. (v) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and the assignee together with the Note or ~~Notes, if any,~~ Notes subject to such assignment (or a standard indemnity letter from the respective assigning Lender in respect of any lost Note or Notes) and payment by the ~~assigning Lender or the~~ assignee to the Agent of a registration and processing ~~fees~~ fee of $~~3,500 in~~ 3,500, the ~~aggregate (except with respect~~ Agent shall accept such Assignment and Acceptance. Promptly upon delivering such Assignment and Acceptance to ~~assignments (A) to any Related Lender Party or another Lender or (B) by~~ the Agent, the ~~Syndication Agent or the Documentation Agent, in their capacities as Lenders), the Agent~~ assigning Lender shall ~~promptly accept such Assignment and Acceptance and record the information contained therein in the Register and~~ give notice ~~of such acceptance and recordation~~ thereof to the ~~Lenders~~ Borrower and the ~~Borrower~~Agent. Such Assignment and Acceptance and the assignment evidenced thereby shall only be effective upon appropriate entries with respect to the information contained therein being made in the Register pursuant to subparagraph (iv) above. (vi) Within five (5) Business Days after receipt of such notice, the Borrower ~~shall, if requested by the assignee Lender,~~ shall execute and deliver to the Agent in exchange for ~~evidence of the delivery to the Agent of a copy of~~ each such surrendered ~~Note, marked "Superseded", one or more~~ Note a new ~~Notes~~ Note payable to the order of such assignee in an amount equal to the portion of the applicable ~~Commitment~~ Commitment(s) assumed ~~and/or Loans purchased~~ by such assignee pursuant to such Assignment and Acceptance and a new Note payable to the order of the assigning Lender in an amount equal to the portion of the applicable Commitment(s) ~~and/or Loans~~ retained by it hereunder. Such new Notes shall be dated the effective date of such Assignment and Acceptance and shall otherwise be in substantially the form provided in ~~Sections~~ Section 1.01~~, 1.03, 1.04 or 1.04A as applicable~~. ~~Copies of the superseded~~ Canceled Notes shall be ~~delivered~~ returned to the Borrower upon the execution and delivery of such new ~~Notes and the original superseded Notes shall be returned to the assignors thereof~~Notes. (~~vii~~v) Each Lender may sell participations in all or a portion of its rights and obligations under this Agreement (including, without limitation, all or a portion of its Commitments and the Notes held by it); provided, however, that, no Lender shall transfer or grant any participation under which the participant shall have rights to approve any amendment to or waiver of this Agreement or any other Loan Document, except to the extent such amendment or waiver would (A) extend the final scheduled maturity of any ~~Loan~~ Loan, Note or ~~Note~~ Letter of Credit (unless such Letter of Credit is not extended beyond the Expiration Date) in which such participant is participating, or reduce the rate or extend the time of payment of interest or fees thereon (except in connection with a waiver of applicability of any post-default increase in interest rates) or reduce the principal amount thereof, or increase the amount of the participant's participation over the amount thereof, or increase the amount of the participant's participation over the amount thereof then in effect (it being understood that no waiver or modification of any condition precedent, covenant or Default or of any mandatory reduction in the aggregate Commitments shall constitute a change in the terms of such participation, that an increase in any Commitment or Loan shall be permitted without the consent of any participant if the participant's participation is not increased as a result thereof and that any amendment or modification to the financial definitions in this Agreement shall not constitute a reduction in any rate of interest or fees for purposes of this clause (A)), (B) consent to the assignment or transfer by the Borrower of any of its rights and obligations under this Agreement or (C) release all or substantially all of the Collateral under all of the Security Documents (except as expressly provided in the Security Documents) supporting the Loans hereunder in which such participant is ~~participating or (D) eliminate the rights set forth in Section 1.21~~participating. In the case of any such participation, the participant shall not have any rights under this Agreement or any of the other Loan Documents (the participant's rights against such Lender in respect of such participation to be those set forth in the agreement executed by such Lender in favor of the participant relating thereto) and all amounts payable by the Borrower hereunder shall be determined as if such Lender had not sold such participation. (~~viii~~vi) Except for an assignment made to (i) another Lender, (ii) a separately organized branch of a ~~Lender,~~ Lender or (iii) a Related Lender ~~Party or (iv) a Qualified Institutional Lender~~Party, and except during the existence of a Default, no assignment referred to above shall be permitted without the prior written consent of the Agent and the Borrower, which consent shall not be unreasonably withheld or delayed. (ixvii) The Borrower may not assign any of its rights or delegate any of its duties or obligations hereunder. (xviii) To the extent that an assignment of all or any portion of a Lender's Commitment and outstanding Loans pursuant to subsection (b) of Article XI XII or this Article ~~XII~~ XIII would, due to circumstances existing at the time of such assignment, result in costs under Sections ~~1.11~~1.08, ~~1.13~~ 1.10 or ~~1.14~~ 1.11 which are increased from those being charged by the respective assigning Lender prior to such assignment, then the Borrower shall not be obligated to pay such increased costs (although the Borrower shall be obligated to pay any other increased costs of the type described above resulting from changes after the date of the respective assignment). (xiix) Any Lender may, in connection with any assignment or participation pursuant to this Section, disclose to the assignee or participant any information relating to the Companies and the Parent Affiliates furnished to such Lender by or on behalf of the Borrower and such assignee or participant shall treat such information as confidential.

Appears in 1 contract

Samples: Credit Agreement (Pegasus Communications Corp)

Benefit of Agreement Assignments and Participations. (a) This Agreement shall be binding upon and inure to the benefit of the Borrower, the Lenders and the ~~Agent~~ Agents and their respective successors and ~~permitted~~ assigns, and all subsequent holders of any of the Notes or any portion ~~thereof~~hereof. (b) Each Lender may assign its rights and interests under this Agreement, the Notes and the ~~Security~~ Collateral Documents and/or delegate its obligations hereunder and thereunder, in whole or in part, and sell participations in the Notes and the ~~Security~~ Collateral Documents as security therefor, provided as follows: (i) Any such ~~assignment, other than an~~ assignment ~~in whole,~~ made other than to a separately organized branch, or an Affiliate of, a Lender (A) ~~another Lender, (B) a separately organized branch of a Lender or (C) a Related Lender Party,~~ shall reflect an assignment of such assigning Lender's ~~Notes~~ Note and ~~Commitments~~ Commitment which is in an aggregate principal amount of at least $~~500,000~~5,000,000, and if greater, shall be an integral multiple of $1,000,000 and (B) unless such assignment occurs during the continuance of an Event of Default, shall require the approval of each of the ~~Borrower~~ Agents and the ~~Agent otherwise consents to a lesser amount~~Borrower, which approval shall not be unreasonably withheld or delayed. (ii) Notwithstanding any provision of this Agreement to the contrary, ~~(A)~~ each Lender may at any time ~~pledge~~ assign all or any portion of its rights under this Agreement and each of the other ~~Loan~~ Transaction Documents, ~~including~~ including, without ~~limitation its Loans and~~ limitation, the Notes held by such ~~Lender,~~ Lender to a any Federal Reserve Bank (or equivalent thereof in the case of Lenders chartered outside of the United States) in support of borrowings made by such Lender from such Federal Reserve Bank and (B) any Lender that is a fund or similar investment vehicle that invests in or makes commercial loans may, without the consent of the Agent or the Borrower, pledge all or any portion of its Notes or Loans to any holders of obligations owed, or securities issued, by such Person, as security for such obligations or securities, or to any trustee for, or any other representative of, such holders); provided that ~~any foreclosure or similar action by~~ no such ~~trustee shall be subject to the provisions of this Section concerning assignments. No pledge pursuant to this subsection (ii)~~ assignment shall release ~~the transferor~~ a Lender from any of its obligations and liabilities under the ~~Loan~~ Transaction Documents.. Any Federal Reserve Bank (or equivalent thereof) which receives such an assignment from any Lender may make further assignments of such rights in accordance with the provisions of this Section. 49 50 (iii) Any assignments and/or delegations made hereunder shall be pursuant to an instrument of assignment and acceptance (the "Assignment and Acceptance") substantially in the form of ~~Schedule 12~~ SCHEDULE 12(B)(III) and the parties to each such assignment shall execute and deliver to the Agent for its acceptance the Assignment and Acceptance together with any Note or Notes subject thereto. Upon such execution and delivery, from and after the effective date specified in each Assignment and Acceptance, which effective date shall be at least five (5) Business Days after the execution ~~thereof unless otherwise permitted by the Agent~~thereof, (A) the assignee thereunder shall become a party hereto and, to the extent provided in such Assignment and Acceptance, have the rights and obligations of a Lender hereunder with ~~applicable Loans~~ a Commitment as set forth therein and (B) the assigning Lender thereunder shall, to the extent provided in such assignment, be released from its obligations under this Agreement as to that portion of its obligation being so assigned and delegated. The Assignment and Acceptance shall be deemed to amend this Agreement to the extent, and only to the extent, necessary to reflect the addition of the assignee as a Lender and the resulting adjustment of ~~Loans~~ Commitments arising from the purchase by and delegation to such assignee of all or a portion of the rights and obligations of such assigning Lender under this Agreement. (iv) The Agent, on behalf of the Borrower, shall maintain at the address of the Agent referred to in Section 13.03 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 Commitments of, and principal amounts of the Loans owing to, and any Notes evidencing the Loans owned by, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, the 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; provided that in the case of an assignment by a Lender to any Related Lender Party that is not reflected on the Register, the assigning Lender shall maintain a comparable register on behalf of the Agent. 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. (v) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and the assignee together with the Note ~~or Notes, if any,~~ subject to such assignment ~~(or a standard indemnity letter from the respective assigning Lender in respect of any lost Note or Notes)~~ and payment by the ~~assigning Lender or the assignee~~ Assignee to the Administrative Agent of a registration and processing ~~fees~~ fee of $~~3,500 in~~ 3,500, the ~~aggregate (except with respect~~ Administrative Agent shall accept such Assignment and Acceptance. Promptly upon delivering such Assignment and Acceptance to ~~assignments (A) to any Related Lender Party or another Lender or (B) by~~ the Agent, the ~~Syndication Agent or~~ Assigning Lender shall give notice thereof to the ~~Documentation Agent, in their capacities as Lenders),~~ Borrower and all of the ~~Agent shall promptly accept such~~ Lenders pursuant to a Notice of Assignment and Acceptance ~~and record the information contained therein~~ substantially in the ~~Register and give notice~~ form of ~~such acceptance and recordation to the Lenders and the Borrower~~SCHEDULE 12(B)(IV). Such Assignment and Acceptance and the assignment evidenced thereby shall only be effective upon appropriate entries with respect to the information contained therein being made in the Register pursuant to subparagraph (iv) above. (vi) Within five (5) Business Days after receipt of such notice, the Borrower ~~shall, if requested by the assignee Lender,~~ shall execute and deliver to the Administrative Agent in exchange for ~~evidence of~~ the ~~delivery to the Agent of~~ surrendered Note a ~~copy of each such surrendered Note, marked "Superseded", one or more~~ new ~~Notes~~ Note payable to the order of such assignee in an amount equal to the portion of the ~~applicable Commitment~~ Commitments assumed ~~and/or Loans purchased~~ by such assignee pursuant to such Assignment and Acceptance and a new Note payable to the order of the assigning Lender in an amount equal to the portion of the ~~applicable Commitment(s) and/or Loans~~ Commitment retained by it hereunder. Such new Notes shall be dated the effective date of such Assignment and Acceptance and shall otherwise be in substantially the form provided in Sections 1.01, 1.03, 1.04 or 1.04A as applicable. Copies of the superseded Notes shall be delivered to the Borrower upon execution and delivery of such new Notes and the original superseded Notes shall be returned to the assignors thereofSECTION 1. (vii) Each Lender may sell participations in all or a portion of its rights and obligations under this Agreement (including, without limitation, all or a portion of the Notes held by it); provided, however, that, no Lender shall transfer or grant any participation under which the participant shall have rights to approve any amendment to or waiver of this Agreement or any other Loan Document, except to the extent such amendment or waiver would (A) extend the final scheduled maturity of any Loan or Note in which such participant is participating, or reduce the rate or extend the time of payment of interest or fees thereon (except in connection with a waiver of applicability of any post-default increase in interest rates) or reduce the principal amount thereof, or increase the amount of the participant's participation over the amount thereof, or increase the amount of the participant's participation over the amount thereof then in effect (it being understood that no waiver or modification of any condition precedent, covenant or Default or of any mandatory reduction in the aggregate Commitments shall constitute a change in the terms of such participation, that an increase in any Commitment or Loan shall be permitted without the consent of any participant if the participant's participation is not increased as a result thereof and that any amendment or modification to the financial definitions in this Agreement shall not constitute a reduction in any rate of interest or fees for purposes of this clause (A)), (B) consent to the assignment or transfer by the Borrower of any of its rights and obligations under this Agreement or (C) release all or substantially all of the Collateral under all of the Security Documents (except as expressly provided in the Security Documents) supporting the Loans hereunder in which such participant is participating or (D) eliminate the rights set forth in Section 1.21. In the case of any such participation, the participant shall not have any rights under this Agreement or any of the other Loan Documents (the participant's rights against such Lender in respect of such participation to be those set forth in the agreement executed by such Lender in favor of the participant relating thereto) and all amounts payable by the Borrower hereunder shall be determined as if such Lender had not sold such participation. (viii) Except for an assignment made to (i) another Lender, (ii) a separately organized branch of a Lender, (iii) a Related Lender Party or (iv) a Qualified Institutional Lender, and except during the existence of a Default, no assignment referred to above shall be permitted without the prior written consent of the Agent and the Borrower, which consent shall not be unreasonably withheld or delayed. (ix) The Borrower may not assign any of its rights or delegate any of its duties or obligations hereunder. (x) To the extent that an assignment of all or any portion of a Lender's Commitment and outstanding Loans pursuant to subsection (b) of Article XI or this Article XII would, due to circumstances existing at the time of such assignment, result in costs under Sections 1.11, 1.13 or 1.14 which are increased from those being charged by the respective assigning Lender prior to such assignment, then the Borrower shall not be obligated to pay such increased costs (although the Borrower shall be obligated to pay any other increased costs of the type described above resulting from changes after the date of the respective assignment). (xi) Any Lender may, in connection with any assignment or participation pursuant to this Section, disclose to the assignee or participant any information relating to the Companies and the Parent Affiliates furnished to such Lender by or on behalf of the Borrower and such assignee or participant shall treat such information as confidential.

Appears in 1 contract

Samples: Credit Agreement (Masada Security Holdings Inc)

Benefit of Agreement Assignments and Participations. (a) This Agreement shall be binding upon and inure to the benefit of and be enforceable by the ~~Borrower, the Lenders and the Agent and their~~ respective successors and ~~permitted assigns~~assigns of the parties hereto, ~~and all subsequent holders of~~ provided that Borrower may not assign or transfer any of its interest hereunder without the ~~Notes or any portion thereof~~prior written consent of the Lenders. (b) Any Lender may make, carry or transfer Loans at, to or for the account of, any of its branch offices or the office of an Affiliate of such Lender. (c) Each Lender may assign its rights and interests under this Agreement, the Notes and the Security Documents and/or delegate its obligations hereunder and thereunder, in whole or in part, and sell participations in the Notes and the Security Documents as security therefor, provided as follows: (i) Any such assignment, other than an assignment in whole, made other than to (A) another Lender, (B) a separately organized branch of a Lender or (C) a Related Lender Party, shall reflect an assignment of such assigning Lender's Notes and Commitments which is in an aggregate principal amount of at least $500,000, unless each of the Borrower and the Agent otherwise consents to a lesser amount. (ii) Notwithstanding any provision of this Agreement to the contrary, (A) each Lender may at any time pledge all or ~~any~~ a portion of its interests, rights and obligations under this Agreement (including all or a portion of its Commitment and ~~each of~~ the ~~other Loan Documents, including without limitation its~~ Loans at the time owing to it and the Notes held by it) to any Eligible Assignee; provided, however, that (i) the Administrative Agent and, except during the continuance of a Default or Event of Default, the Borrower must give their prior written consent to such assignment (which consent shall not be unreasonably withheld or delayed) unless such assignment is to an Affiliate of the assigning Lender, to a Federal Reserve Bank (or equivalent thereof in the case of Lenders chartered outside of the United States) in support of borrowings made by such Lender from such Federal Reserve Bank and (B) any Lender that is a fund or similar investment vehicle that invests in or makes commercial loans may, without the consent of the Agent or the Borrower, pledge all or any portion of its Notes or Loans to any holders of obligations owed, or securities issued, by such Person, as security for such obligations or securities, or to any trustee for, or any other representative of, such holders; provided that any foreclosure or similar action by such trustee shall be subject to the provisions of this Section concerning assignments. No pledge pursuant to this subsection (ii) the amount of the Commitments of the assigning Lender subject to each assignment (determined as of the date the assignment and acceptance with respect to such assignment is delivered to the Administrative Agent) shall ~~release the transferor Lender from any of its obligations~~ not be less than an amount equal to $10,000,000 or greater integral multiplies thereof, and ~~liabilities under the Loan Documents.~~ (iii) ~~Any assignments and/or delegations made hereunder shall be pursuant to an instrument of assignment and acceptance (the "Assignment and Acceptance") substantially in the form of Schedule 12 and~~ the parties to each such assignment shall execute and deliver to the Administrative Agent ~~for its acceptance the~~ an Assignment and ~~Acceptance~~ Acceptance, together with ~~any~~ the Note or Notes subject ~~thereto~~to such assignment and, unless such assignment is to an Affiliate of such Lender, a processing and recordation fee of $3,500. ~~Upon~~ Borrower shall not be responsible for such ~~execution~~ processing and ~~delivery~~recordation fee or any costs or expenses incurred by any Lender or the Administrative Agent in connection with such assignment. Notwithstanding the foregoing, ~~from~~ the assigning Lender must retain after the consummation of such Assignment and Acceptance, a minimum amount of Commitments or Loans, as the case may be, of $10,000,000; provided, however, no such minimum amount shall be required with respect to any such assignment made at any time there exists an Event of Default hereunder. From and after the effective date specified in each Assignment and Acceptance, which effective date shall be at least five (5) Business Days after the execution ~~thereof unless otherwise permitted by the Agent~~thereof, ~~(A)~~ the assignee thereunder shall ~~become~~ be a party hereto ~~and,~~ and to the extent ~~provided in~~ of the interest assigned by such Assignment and Acceptance, have the rights and obligations of a Lender hereunder with applicable Loans as set forth therein and (B) the assigning Lender thereunder shall, to the extent provided in such assignment, be released from its obligations under this Agreement as to that portion of its obligation being so assigned and delegated. The Assignment and Acceptance shall be deemed to amend this Agreement to the extent, and only to the extent, necessary to reflect the addition of the assignee as a Lender and the resulting adjustment of Loans arising from the purchase by and delegation to such assignee of all or a portion of the rights and obligations of such assigning Lender under this Agreement. (iv) The Agent, on behalf of the Borrower, shall maintain at the address of the Agent referred to in Section 13.03 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 Commitments of, and principal amounts of the Loans owing to, and any Notes evidencing the Loans owned by, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, the 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; provided that in the case of an assignment by a Lender to any Related Lender Party that is not reflected on the Register, the assigning Lender shall maintain a comparable register on behalf of the Agent. 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. (v) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and the assignee together with the Note or Notes, if any, subject to such assignment (or a standard indemnity letter from the respective assigning Lender in respect of any lost Note or Notes) and payment by the assigning Lender or the assignee to the Agent of registration and processing fees of $3,500 in the aggregate (except with respect to assignments (A) to any Related Lender Party or another Lender or (B) by the Agent, the Syndication Agent or the Documentation Agent, in their capacities as Lenders), the Agent shall promptly accept such Assignment and Acceptance and record the information contained therein in the Register and give notice of such acceptance and recordation to the Lenders and the Borrower. Such Assignment and Acceptance and the assignment evidenced thereby shall only be effective upon appropriate entries with respect to the information contained therein being made in the Register pursuant to subparagraph (iv) above. (vi) Within five (5) Business Days after receipt of ~~such notice~~the notice and the Assignment and Acceptance, ~~the Borrower shall~~Borrower, ~~if requested by the assignee Lender~~at its own expense, shall execute and deliver to the ~~Agent~~ Administrative Agent, in exchange for ~~evidence of~~ the ~~delivery to the Agent of~~ surrendered Note or Notes, a ~~copy of each such surrendered Note, marked "Superseded", one~~ new Note or ~~more new~~ Notes ~~payable~~ to the order of such assignee in an a principal amount equal to the ~~portion of the~~ applicable ~~Commitment~~ Commitments or Loans assumed ~~and/or Loans purchased~~ by ~~such assignee~~ it pursuant to such Assignment and Acceptance and a new Note ~~payable~~ or Notes to ~~the order of~~ the assigning Lender in an the amount of its retained Commitment or Commitments or amount of its retained Loans. Such new Note or Notes shall be in aggregate and a principal amount equal to the ~~portion~~ aggregate principal amount of ~~the applicable Commitment(s) and/or Loans retained by it hereunder. Such new Notes~~ such surrendered Note or Notes, shall be dated the ~~effective~~ date of ~~such Assignment and Acceptance~~ the surrendered Note or Notes which they replace, and shall otherwise be in substantially the form provided in Sections 1.01, 1.03, 1.04 or 1.04A as applicable. Copies of the superseded Notes shall be delivered to the Borrower upon execution and delivery of such new Notes and the original superseded Notes shall be returned to the assignors thereofattached hereto. (~~vii~~d) Each Lender ~~may~~ may, without the consent of the Borrower, sell participations to one or more banks or other entities in all or a portion of its rights and obligations under this Agreement (~~including, without limitation,~~ including all or a portion of its Commitments in the Loans owing to it and the Notes held by it); , provided, however, ~~that~~that (i) such Lender's obligations under this Agreement shall remain unchanged, no (ii) such Lender shall ~~transfer~~ remain solely responsible to the other parties hereto for the performance of such obligations, (iii) the participating bank or ~~grant any participation under which~~ other entity shall not be entitled to the ~~participant shall have rights to approve any amendment to or waiver~~ benefit (except through its selling Lender) of the cost protection provisions contained in Article 4. of this ~~Agreement or any~~ Agreement, and (iv) Borrower and the Administrative Agent and other ~~Loan Document, except~~ Lenders shall continue to the extent such amendment or waiver would (A) extend the final scheduled maturity of any Loan or Note in which such participant is participating, or reduce the rate or extend the time of payment of interest or fees thereon (except deal solely and directly with each Lender in connection with ~~a waiver of applicability of any post-default increase in interest rates) or reduce the principal amount thereof, or increase the amount of the participant~~such Lender's participation over the amount thereof, or increase the amount of the participant's participation over the amount thereof then in effect (it being understood that no waiver or modification of any condition precedent, covenant or Default or of any mandatory reduction in the aggregate Commitments shall constitute a change in the terms of such participation, that an increase in any Commitment or Loan shall be permitted without the consent of any participant if the participant's participation is not increased as a result thereof and that any amendment or modification to the financial definitions in this Agreement shall not constitute a reduction in any rate of interest or fees for purposes of this clause (A)), (B) consent to the assignment or transfer by the Borrower of any of its rights and obligations under this Agreement and the other Credit Documents, and such Lender shall retain the sole right to enforce the obligations of Borrower relating to the Loans and to approve any amendment, modification or ~~(C) release all or substantially all~~ waiver of any provisions of this Agreement. Any Lender selling a participation hereunder shall provide prompt written notice to Administrative Agent of the Collateral under all of the Security Documents (except as expressly provided in the Security Documents) supporting the Loans hereunder in which such participant is participating or (D) eliminate the rights set forth in Section 1.21. In the case of any such participation, the participant shall not have any rights under this Agreement or any of the other Loan Documents (the participant's rights against such Lender in respect name of such participation to be those set forth in the agreement executed by such Lender in favor of the participant relating thereto) and all amounts payable by the Borrower hereunder shall be determined as if such Lender had not sold such participationparticipant. (viii) Except for an assignment made to (i) another Lender, (ii) a separately organized branch of a Lender, (iii) a Related Lender Party or (iv) a Qualified Institutional Lender, and except during the existence of a Default, no assignment referred to above shall be permitted without the prior written consent of the Agent and the Borrower, which consent shall not be unreasonably withheld or delayed. (ix) The Borrower may not assign any of its rights or delegate any of its duties or obligations hereunder. (x) To the extent that an assignment of all or any portion of a Lender's Commitment and outstanding Loans pursuant to subsection (b) of Article XI or this Article XII would, due to circumstances existing at the time of such assignment, result in costs under Sections 1.11, 1.13 or 1.14 which are increased from those being charged by the respective assigning Lender prior to such assignment, then the Borrower shall not be obligated to pay such increased costs (although the Borrower shall be obligated to pay any other increased costs of the type described above resulting from changes after the date of the respective assignment). (xie) Any Lender or participant may, in connection with ~~any~~ the assignment or participation or proposed assignment or participation, pursuant to this Section, disclose to the assignee or participant or proposed assignee or participant any information relating to Borrower or the other Consolidated Companies ~~and the Parent Affiliates~~ furnished to such Lender by or on behalf of ~~the~~ Borrower ~~and~~ or any other Consolidated Company. With respect to any disclosure of confidential, non-public, proprietary information, such proposed assignee or participant shall ~~treat~~ agree to use the information only for the purpose of making any necessary credit judgments with respect to this credit facility and not to use the information in any manner prohibited by any law, including without limitation, the securities laws of the United States. The proposed participant or assignee shall agree not to disclose any of such information except as ~~confidential~~permitted by Section 10.15. hereof. The proposed participant or assignee shall further agree to return all documents or other written material and copies thereof received from any Lender, the Administrative Agent or Borrower relating to such confidential information unless otherwise properly disposed of by such entity. (f) Any Lender may at any time assign all or any portion of its rights under this Agreement and the Notes issued to it to a Federal Reserve Bank; provided that no such assignment shall release the Lender from any of its obligations hereunder. (g) If (i) any Taxes referred to in Section 3.8.

Appears in 1 contract

Samples: Credit Agreement (CBRL Group Inc)

Benefit of Agreement Assignments and Participations. (a) This Agreement shall be binding upon and inure to the benefit of the Borrower, the Lenders and the Agent and their respective successors and permitted assigns, and all subsequent holders of any of the Notes or any portion thereof. (b) Each Lender may assign its rights and interests under this Agreement, the Notes and the Security Documents and/or delegate its obligations hereunder and thereunder, in whole or in part, and sell participations in the Notes and the Security Documents as security therefor, provided as follows: (i) Any such assignment, other than an assignment in whole, made other than to (A) another Lender, (B) a separately organized branch of a Lender or (C) a Related Lender Party, shall reflect an assignment of such assigning Lender's Notes and Commitments which is in an aggregate principal amount of at least $~~500,000~~1,000,000, unless each of the Borrower and the Agent otherwise consents to a lesser amount. (ii) Notwithstanding any provision of this Agreement to the contrary, (A) each Lender may at any time pledge all or any portion of its rights under this Agreement and each of the other Loan Documents, including without limitation its Loans and the Notes held by such Lender, to a Federal Reserve Bank (or equivalent thereof in the case of Lenders chartered outside of the United States) in support of borrowings made by such Lender from such Federal Reserve Bank and (B) any Lender that is a fund ~~or similar investment vehicle~~ that invests in ~~or makes commercial~~ bank loans may, without the consent of the Agent or the Borrower, pledge all or any portion of its Notes or Loans to any holders of obligations owed, or securities issued, by such ~~Person~~fund, as security for such obligations or securities, or to any trustee for, or any other representative of, such holders; provided that any foreclosure or similar action by such trustee shall be subject to the provisions of this Section concerning assignments. No pledge pursuant to this subsection (ii) shall release the transferor Lender from any of its obligations and liabilities under the Loan Documents. (iii) Any assignments and/or delegations made hereunder shall be pursuant to an instrument of assignment and acceptance (the "Assignment and Acceptance") substantially in the form of Schedule 12 and the parties to each such assignment shall execute and deliver to the Agent for its acceptance the Assignment and Acceptance together with any Note or Notes subject thereto. Upon such execution and delivery, from and after the effective date specified in each Assignment and Acceptance, which effective date shall be at least five (5) Business Days after the execution thereof unless otherwise permitted by the Agent, (A) the assignee thereunder shall become a party hereto and, to the extent provided in such Assignment and Acceptance, have the rights and obligations of a Lender hereunder with applicable ~~Loans~~ Commitments as set forth therein and (B) the assigning Lender thereunder shall, to the extent provided in such assignment, be released from its obligations under this Agreement as to that portion of its obligation being so assigned and delegated. The Assignment and Acceptance shall be deemed to amend this Agreement to the extent, and only to the extent, necessary to reflect the addition of the assignee as a Lender and the resulting ~~adjustment~~ adjustments of ~~Loans~~ the Commitments arising from the purchase by and delegation to such assignee ~~of all or a portion~~ of the rights and obligations of such assigning Lender under this Agreement. (iv) The Agent, on behalf of the Borrower, shall maintain at the address of the Agent referred to in Section 13.03 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 Commitments ~~of,~~ of and principal amounts of the Loans owing to, and any Notes evidencing the Loans owned by, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, the 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; provided that in the case of an assignment by a Lender to any Related Lender Party that is not reflected on the Register, the assigning Lender shall maintain a comparable register on behalf of the Agent. 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. (v) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and the assignee together with the Note or ~~Notes, if any,~~ Notes subject to such assignment (or a standard indemnity letter from the respective assigning Lender in respect of any lost Note or Notes) and payment by the assigning Lender or the assignee to the Agent of registration and processing fees of $3,500 in the aggregate (except with respect to assignments (A) to any Related Lender Party or another Lender or (B) by the Agent, ~~the Syndication Agent or the Documentation Agent,~~ in ~~their capacities~~ its capacity as ~~Lenders~~Lender), the Agent shall promptly accept such Assignment and Acceptance and record the information contained therein in the Register and give notice of such acceptance and recordation to the Lenders and the Borrower. Such Assignment and Acceptance and the assignment evidenced thereby shall only be effective upon appropriate entries with respect to the information contained therein being made in the Register pursuant to subparagraph (iv) above. (vi) Within five (5) Business Days after receipt of such notice, the Borrower ~~shall, if requested by the assignee Lender,~~ shall execute and deliver to the Agent in exchange for evidence of the delivery to the Agent of a copy of each such surrendered Note, marked "Superseded", one or more new Notes payable to the order of such assignee in an amount equal to the portion of the applicable Commitment assumed and/or Loans purchased by such assignee pursuant to such Assignment and Acceptance and a new Note payable to the order of the assigning Lender in an amount equal to the portion of the applicable ~~Commitment(s)~~ Commitments and/or Loans retained by it hereunder. Such new Notes shall be dated the effective date of such Assignment and Acceptance and shall otherwise be in substantially the form provided in ~~Sections 1.01, 1.03, 1.04 or 1.04A as applicable~~Section 1. 01. Copies of the superseded Notes shall be delivered to the Borrower upon execution and delivery of such new Notes and the original superseded Notes shall be returned to the assignors thereof. (vii) Each Lender may sell participations in all or a portion of its rights and obligations under this Agreement (including, without limitation, all or a portion of its Commitment and the Notes held by it); provided, however, that, no Lender shall transfer or grant any participation under which the participant shall have rights to approve any amendment to or waiver of this Agreement or any other Loan Document, except to the extent such amendment or waiver would (A) extend the final scheduled maturity of any Loan or Note in which such participant is participating, or reduce the rate or extend the time of payment of interest or fees thereon (except in connection with a waiver of applicability of any post-default increase in interest rates) or reduce the principal amount thereof, or increase the amount of the participant's participation over the amount thereof, or increase the amount of the participant's participation over the amount thereof then in effect (it being understood that no waiver or modification of any condition precedent, covenant or Default or of any mandatory reduction in the aggregate Commitments shall constitute a change in the terms of such participation, that an increase in any Commitment or Loan shall be permitted without the consent of any participant if the participant's participation is not increased as a result thereof and that any amendment or modification to the financial definitions in this Agreement shall not constitute a reduction in any rate of interest or fees for purposes of this clause (A)), (B) consent to the assignment or transfer by the Borrower of any of its rights and obligations under this Agreement or (C) release any of the Equity Securities of PM&C or all or substantially all of the other Collateral under all of the Security Documents (except as expressly provided in the Security Documents) supporting the Loans hereunder in which such participant is ~~participating or (D) eliminate the rights set forth in Section 1.21~~participating. In the case of any such participation, the participant shall not have any rights under this Agreement or any of the other Loan Documents (the participant's rights against such Lender in respect of such participation to be those set forth in the agreement executed by such Lender in favor of the participant relating thereto) and all amounts payable by the Borrower hereunder shall be determined as if such Lender had not sold such participation. (viii) Except for an assignment made to (i) another Lender, (ii) a separately organized branch of a ~~Lender,~~ Lender or (iii) a Related Lender ~~Party or (iv) a Qualified Institutional Lender~~Party, and except during the existence of a Default, no assignment referred to above shall be permitted without the prior written consent of the Agent and the Borrower, which consent shall not be unreasonably withheld or delayed. (ix) ~~The Borrower may not~~ If DBS Investors, LLC intends to assign ~~any~~ or grant a participation in all or a portion of its ~~rights~~ Loan, or ~~delegate any of its duties or obligations hereunder. (x) To the extent that an assignment of all or~~ if Pegasus Partners II, L.P. intends to assign any portion of ~~a Lender's Commitment and outstanding Loans pursuant~~ its membership interests in DBS Investors, LLC, or if DBS Investors, LLC intends to ~~subsection (b) of Article XI or this Article XII would~~issue any membership interests to any Person other than Pegasus Partners II, ~~due~~ L.P., such that after giving effect to ~~circumstances existing at the time of~~ any such assignment, ~~result in costs under Sections 1.11~~participation or issuance, ~~1.13~~ DBS Investors, LLC and its Affiliates would own, directly or ~~1.14 which are increased from those being charged by the respective assigning Lender prior to such assignment~~indirectly, ~~then the Borrower shall not be obligated to pay such increased costs (although the Borrower shall be obligated to pay any other increased costs~~ less than a majority of the ~~type described above resulting from changes after the date~~ aggregate outstanding principal amount of the ~~respective assignment).~~ Loans and unutilized Commitments (xi) Any Lender may, in connection with any assignment or participation pursuant to this Section, disclose to the assignee or participant any information relating to the Companies and the Parent Affiliates furnished to such Lender by or on behalf of the Borrower and such assignee or participant shall treat such information as confidential.it being

Appears in 1 contract

Samples: Term Loan Agreement (Pegasus Communications Corp /)

Benefit of Agreement Assignments and Participations. (a) This Agreement shall be binding upon and inure to the benefit of and be enforceable by the ~~Borrower, the Lenders and the Agent and their~~ respective successors and ~~permitted assigns, and all subsequent holders of any~~ assigns of the ~~Notes or any portion thereof. (b) Each Lender may assign its rights and interests under this Agreement~~parties hereto; provided, ~~the Notes and the Security Documents and/or delegate its obligations hereunder and thereunder~~however, ~~in whole or in part, and sell participations in the Notes and the Security Documents as security therefor, provided as follows:~~ that (i) ~~Any such assignment~~no Credit Party may assign or transfer any of its rights, obligations or interests hereunder or under any other than an assignment in whole, made other than to (A) another Lender, (B) a separately organized branch of a Lender or (C) a Related Lender Party, shall reflect an assignment of such assigning Lender's Notes and Commitments which is in an aggregate principal amount of at least $500,000, unless each Credit Document without the prior written consent of the ~~Borrower and the Agent otherwise consents to a lesser amount.~~ Lenders, (ii) ~~Notwithstanding~~ although any ~~provision of this Agreement to the contrary, (A) each~~ Lender may ~~at any time pledge~~ transfer, assign or grant participations in its rights hereunder, such Lender shall remain a “Lender” for all purposes hereunder (and may not transfer or assign all or any portion of its ~~rights under this Agreement~~ Commitments hereunder except as provided in Sections 2.12 and ~~each of~~ 14.04(b) or as otherwise separately agreed to in writing with the ~~other Loan Documents, including without limitation its Loans~~ Borrower) and the ~~Notes held by such Lender~~transferee, ~~to a Federal Reserve Bank (~~assignee or ~~equivalent thereof in~~ participant, as the case ~~of Lenders chartered outside of the United States) in support of borrowings made by such Lender from such Federal Reserve Bank~~ may be, shall not constitute a “Lender” hereunder and (B) any Lender that is a fund or similar investment vehicle that invests in or makes commercial loans may, without the consent of the Agent or the Borrower, pledge all or any portion of its Notes or Loans to any holders of obligations owed, or securities issued, by such Person, as security for such obligations or securities, or to any trustee for, or any other representative of, such holders; provided that any foreclosure or similar action by such trustee shall be subject to the provisions of this Section concerning assignments. No pledge pursuant to this subsection (ii) shall release the transferor Lender from any of its obligations and liabilities under the Loan Documents. (iii) Any assignments and/or delegations made hereunder shall be pursuant to an instrument of assignment and acceptance (the "Assignment and Acceptance") substantially in the form of Schedule 12 and the parties to each such assignment shall execute and deliver to the Agent for its acceptance the Assignment and Acceptance together with any Note or Notes subject thereto. Upon such execution and delivery, from and after the effective date specified in each Assignment and Acceptance, which effective date shall be at least five (5) Business Days after the execution thereof unless otherwise permitted by the Agent, (A) the assignee thereunder shall become a party hereto and, to the extent provided in such Assignment and Acceptance, have the rights and obligations of a Lender hereunder with applicable Loans as set forth therein and (B) the assigning Lender thereunder shall, to the extent provided in such assignment, be released from its obligations under this Agreement as to that portion of its obligation being so assigned and delegated. The Assignment and Acceptance shall be deemed to amend this Agreement to the extent, and only to the extent, necessary to reflect the addition of the assignee as a Lender and the resulting adjustment of Loans arising from the purchase by and delegation to such assignee of all or a portion of the rights and obligations of such assigning Lender under this Agreement. (iv) The Agent, on behalf of the Borrower, shall maintain at the address of the Agent referred to in Section 13.03 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 Commitments of, and principal amounts of the Loans owing to, and any Notes evidencing the Loans owned by, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, the 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; provided that in the case of an assignment by a Lender to any Related Lender Party that is not reflected on the Register, the assigning Lender shall maintain a comparable register on behalf of the Agent. 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. (v) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and the assignee together with the Note or Notes, if any, subject to such assignment (or a standard indemnity letter from the respective assigning Lender in respect of any lost Note or Notes) and payment by the assigning Lender or the assignee to the Agent of registration and processing fees of $3,500 in the aggregate (except with respect to assignments (A) to any Related Lender Party or another Lender or (B) by the Agent, the Syndication Agent or the Documentation Agent, in their capacities as Lenders), the Agent shall promptly accept such Assignment and Acceptance and record the information contained therein in the Register and give notice of such acceptance and recordation to the Lenders and the Borrower. Such Assignment and Acceptance and the assignment evidenced thereby shall only be effective upon appropriate entries with respect to the information contained therein being made in the Register pursuant to subparagraph (iv) above. (vi) Within five (5) Business Days after receipt of such notice, the Borrower shall, if requested by the assignee Lender, execute and deliver to the Agent in exchange for evidence of the delivery to the Agent of a copy of each such surrendered Note, marked "Superseded", one or more new Notes payable to the order of such assignee in an amount equal to the portion of the applicable Commitment assumed and/or Loans purchased by such assignee pursuant to such Assignment and Acceptance and a new Note payable to the order of the assigning Lender in an amount equal to the portion of the applicable Commitment(s) and/or Loans retained by it hereunder. Such new Notes shall be dated the effective date of such Assignment and Acceptance and shall otherwise be in substantially the form provided in Sections 1.01, 1.03, 1.04 or 1.04A as applicable. Copies of the superseded Notes shall be delivered to the Borrower upon execution and delivery of such new Notes and the original superseded Notes shall be returned to the assignors thereof. (vii) Each Lender may sell participations in all or a portion of its rights and obligations under this Agreement (including, without limitation, all or a portion of the Notes held by it); provided, however, that, no Lender shall transfer or grant any participation under which the participant shall have rights to approve any amendment to or waiver of this Agreement or any other ~~Loan Document,~~ Credit Document except to the extent such amendment or waiver would (Ax) extend the final scheduled maturity of any Loan or Note in which such participant is participating, or reduce the rate or extend the time of payment of interest or ~~fees~~ Commitment Commission, Tranche A Yield Enhancement or Tranche B Yield Enhancement thereon (except (m) in connection with a waiver of applicability of any post-default increase in interest ~~rates~~rates and (n) that any amendment or modification to the financial definitions in this Agreement shall not constitute a reduction in the rate of interest for purposes of this clause (x)) or reduce the principal amount thereof, or increase the amount of the participant~~'s participation over the amount thereof, or increase the amount of the participant's~~ ’s participation over the amount thereof then in effect (it being understood that no a waiver ~~or modification~~ of any ~~condition precedent, covenant~~ Default or Event of Default or of ~~any~~ a mandatory reduction in the ~~aggregate Commitments~~ Total Revolving Commitment, Total Tranche A Term Loan Commitment or Total Tranche B Term Loan Commitment shall not constitute a change in the terms of such participation, and that an increase in any Commitment or Loan shall be permitted without the consent of any participant if the participant's ’s participation is not increased as a result ~~thereof and that any amendment or modification to the financial definitions in this Agreement shall not constitute a reduction in any rate of interest or fees for purposes of this clause (A)~~thereof), (By) consent to the assignment or transfer by the Borrower of any of its rights and obligations under this Agreement or (Cz) release all or substantially all of the Collateral under all of the Security Documents (except as expressly provided in the ~~Security~~ Credit Documents) ~~supporting~~ securing the Loans hereunder in which such participant is ~~participating or (D) eliminate the rights set forth in Section 1.21~~participating. In the case of any such participation, the participant shall not have any rights under this Agreement or any of the other ~~Loan~~ Credit Documents (the participant's ’s rights against such Lender in respect of such participation to be those set forth in the agreement executed by such Lender in favor of the participant relating thereto) and all amounts payable by the Borrower hereunder shall be determined as if such Lender had not sold such participation. (~~viii~~b) ~~Except for an assignment made~~ Notwithstanding the foregoing, any Lender (or any Lender together with one or more other Lenders) may (x) assign all or a portion of its Commitment and/or its outstanding Loans to its (i) ~~another Lender~~parent company so long as such parent company is solvent and/or any affiliate of such Lender which is at least 50% owned by such Lender or its parent company (so long as such affiliate is solvent) or (ii) in the case of any Lender that is a fund that invests in bank loans, any other fund that invests in bank loans and is managed or advised by the same investment advisor of such Lender or by an Affiliate of such investment advisor (so long as such fund is solvent) or (iii) to one or more Lenders or (y) assign with the consent of the Borrower (which consent shall not be unreasonably withheld or delayed and shall not be required if any Event of Default is then in existence) all, or if less than all, a portion equal to at least $5,000,000 in the aggregate for the assigning Lender or assigning Lenders, of such Commitments and outstanding principal amount of Loans hereunder to one or more Eligible Transferees (treating any fund that invests in bank loans and any other fund that invests in bank loans and is managed or advised by the same investment advisor of such fund or by an Affiliate of such investment advisor as a single Eligible Transferee), each of which assignees shall become a party to this Agreement as a Lender by execution of an Assignment and Assumption Agreement, provided that (i) at such time Schedule I shall be deemed modified to reflect the Commitments (and/or outstanding Loans, as the case may be) of such new Lender and of the existing Lenders, (ii) ~~a separately organized branch~~ upon the surrender of a the relevant Notes assigned by the Lender, new Notes will be issued, at the Borrower’s expense, to such new Lender and to the assigning Lender upon the request of such new Lender or assigning Lender, such new Notes to be in conformity with the requirements of Section 2.05 (with appropriate modifications) to the extent needed to reflect the revised Commitments (and/or outstanding Loans, as the case may be), (iii) ~~a Related Lender Party or (iv) a Qualified Institutional Lender, and except during~~ the ~~existence of a Default, no assignment referred to above shall be permitted without the prior written~~ consent of the Administrative Agent shall be required in connection with any assignment of Revolving Loan Commitments pursuant to preceding clause (y) and the ~~Borrower~~consent of the Issuing Lender shall be required in connection with any assignment of Revolving Loan Commitments pursuant to preceding clauses (x) and (y) (in each case, which consent shall not be unreasonably withheld or delayed. ), and (ixiv) ~~The Borrower may not assign~~ the Administrative Agent shall receive at the time of each such assignment, from the assigning or assignee Lender, the payment of a non-refundable assignment fee of $3,000. To the extent of any assignment pursuant to this Section 14.04(b), the assigning Lender shall be relieved of its ~~rights or delegate any~~ obligations hereunder with respect to its assigned Commitments and outstanding Loans. At the time of ~~its duties or obligations~~ each assignment pursuant to this Section 14.04(b) to a Person which is not already a Lender hereunder~~. (x)~~ , the respective assignee Lender shall, to the extent legally entitled to do so, comply with Section 5.04(b). To the extent that an assignment of all or any portion of a Lender~~'s Commitment~~ ’s Commitments and related outstanding ~~Loans~~ Obligations pursuant to ~~subsection (b) of Article XI~~ Section 2.12 or this ~~Article XII~~ Section 14.04(b) would, ~~due to circumstances existing~~ at the time of such assignment, result in increased costs under ~~Sections 1.11, 1.13~~ Section 2.09 or ~~1.14 which are increased~~ 2.10 from those being charged by the respective assigning Lender prior to such assignment, then the Borrower shall not be obligated to pay such increased costs (although the ~~Borrower~~ Borrower, in accordance with and pursuant to the other provisions of this Agreement, shall be obligated to pay any other increased costs of the type described above resulting from changes after the date of the respective assignment). (xic) ~~Any~~ Nothing in this Agreement shall prevent or prohibit any Lender ~~may~~from pledging its Loans and Notes hereunder to a Federal Reserve Bank in support of borrowings made by such Lender from such Federal Reserve Bank and, with prior notification to the Administrative Agent (but without the consent of the Administrative Agent or the Borrower), any Lender which is a fund may pledge all or any portion of its Loans and Notes to its trustee or to a collateral agent providing credit or credit support to such Lender in ~~connection with any assignment~~ support of its obligations to such trustee, such collateral agent or ~~participation~~ a holder of such obligations, as the case may be. No pledge pursuant to this ~~Section, disclose to~~ clause (c) shall release the ~~assignee or participant~~ transferor Lender from any ~~information relating to the Companies and the Parent Affiliates furnished to such Lender by or on behalf~~ of ~~the Borrower and such assignee or participant shall treat such information as confidential~~its obligations hereunder.

Appears in 1 contract

Samples: Credit Agreement and Forbearance Agreement (Trico Marine Services Inc)

Benefit of Agreement Assignments and Participations. (a) This Agreement shall be binding upon and inure to the benefit of the Borrower, the Lenders and the Administrative Agent and their respective successors and ~~permitted~~ assigns, and all subsequent holders of any of the Notes or any portion thereof. (b) Each Lender may assign its rights and interests under this Agreement, the Notes and the Security Documents and/or delegate its obligations hereunder and thereunder, in whole or in part, and sell participations in the Notes and the Security Documents as security therefor, provided as follows: (i) ~~Any such~~ No Lender shall make any assignment, other than an assignment in ~~whole~~whole or an assignment to a separately organized branch or an Affiliate of the same Lender, if, after giving effect thereto, such Lender would hold less than $5,000,000 of the then aggregate outstanding principal amount of the Notes. (ii) Any such assignment made other than to ~~(A) another Lender, (B)~~ a separately organized ~~branch of~~ branch, or an Affiliate of, a Lender ~~or (C) a Related Lender Party,~~ shall reflect an assignment of such assigning Lender's Notes and Commitments which is in an aggregate principal amount of at least $~~500,000~~5,000,000, ~~unless each~~ and if greater, shall be an integral multiple of ~~the Borrower and the Agent otherwise consents to a lesser amount~~$1,000,000. (iiiii) Notwithstanding any provision of this Agreement to the contrary, ~~(A)~~ each Lender may at any time ~~pledge~~ assign all or any portion of its rights under this Agreement and each of the other Loan Documents, ~~including~~ including, without ~~limitation its Loans and~~ limitation, the Notes held by such Lender, to a Federal Reserve Bank (or equivalent thereof in the case of Lenders chartered outside of the United States) in support of borrowings made by such Lender from such Federal Reserve Bank and (B) any Lender that is a fund or similar investment vehicle that invests in or makes commercial loans may, without the consent of the Agent or the Borrower, pledge all or any portion of its Notes or Loans to any holders of obligations owed, or securities issued, by such Person, as security for such obligations or securities, or to any trustee for, or any other representative of, such holders); provided that ~~any foreclosure or similar action by~~ no such ~~trustee shall be subject to the provisions of this Section concerning assignments. No pledge pursuant to this subsection (ii)~~ assignment shall release ~~the transferor~~ a Lender from any of its obligations and liabilities under the Loan Documents. Any Federal Reserve Bank (or equivalent thereof) which receives such an assignment from any Lender may make further assignments of such rights in accordance with the provisions of this Section. (~~iii~~iv) Any assignments and/or delegations made hereunder shall be pursuant to an instrument of assignment and acceptance (the "Assignment and Acceptance") substantially in the form of Schedule 12 13(b) (iv) and the parties to each such assignment shall execute and deliver to the Administrative Agent for its acceptance the Assignment and Acceptance together with any Note or Notes subject thereto. Upon such execution and delivery, from and after the effective date specified in each Assignment and Acceptance, which effective date shall be at least five (5) Business Days after the execution ~~thereof unless otherwise permitted by the Agent~~thereof, (A) the assignee thereunder shall become a party hereto and, to the extent provided in such Assignment and Acceptance, have the rights and obligations of a Lender hereunder with applicable ~~Loans~~ Commitments as set forth therein and (B) the assigning Lender thereunder shall, to the extent provided in such assignment, be released from its obligations under this Agreement as to that portion of its obligation being so assigned and delegated. The Assignment and Acceptance shall be deemed to amend this Agreement to the extent, and only to the extent, necessary to reflect the addition of the assignee as a Lender and the resulting adjustment of ~~Loans~~ Commitments arising from the purchase by and delegation to such assignee of all or a portion of the rights and obligations of such assigning Lender under this Agreement. (iv) The Agent, on behalf of the Borrower, shall maintain at the address of the Agent referred to in Section 13.03 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 Commitments of, and principal amounts of the Loans owing to, and any Notes evidencing the Loans owned by, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, the 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; provided that in the case of an assignment by a Lender to any Related Lender Party that is not reflected on the Register, the assigning Lender shall maintain a comparable register on behalf of the Agent. 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. (v) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and the assignee together with the Note or ~~Notes, if any,~~ Notes subject to such assignment ~~(or a standard indemnity letter from the respective assigning Lender in respect of any lost Note or Notes)~~ and payment by the ~~assigning Lender or the~~ assignee to the Administrative Agent of a registration and processing ~~fees~~ fee of $~~3,500 in the aggregate (except with respect to assignments (A) to any Related Lender Party or another Lender or (B) by the Agent~~3,000, the ~~Syndication Agent or the Documentation Agent, in their capacities as Lenders), the~~ Administrative Agent shall ~~promptly~~ accept such Assignment and ~~Acceptance and record the information contained therein in the Register and give notice of~~ Acceptance. Promptly upon delivering such ~~acceptance and recordation to the Lenders and the Borrower. Such~~ Assignment and Acceptance to the Administrative Agent, the assigning Lender shall give notice thereof to the Borrower pursuant to a Notice of Assignment and Acceptance substantially in the form of Schedule 13(b) (v) and addressed to the Borrower and the ~~assignment evidenced thereby shall only be effective upon appropriate entries with respect to the information contained therein being made in the Register pursuant to subparagraph (iv) above. (vi)~~ Administrative Agent. Within five (5) Business Days after receipt of such notice, the Borrower ~~shall, if requested by the assignee Lender,~~ shall execute and deliver to the Administrative Agent in exchange for ~~evidence of the delivery to the Agent of a copy of~~ each such surrendered ~~Note, marked "Superseded", one or more~~ Note a new ~~Notes~~ Note payable to the order of such assignee in an amount equal to the portion of the applicable ~~Commitment~~ Commitment(s) assumed ~~and/or Loans purchased~~ by such assignee pursuant to such Assignment and Acceptance and a new Note payable to the order of the assigning Lender in an amount equal to the portion of the applicable Commitment(s) ~~and/or Loans~~ retained by it hereunder. Such new Notes shall be dated the effective date of such Assignment and Acceptance and shall otherwise be in substantially the form provided in ~~Sections~~ Section 1.01~~, 1.03, 1.04 or 1.04A as applicable~~. ~~Copies of the superseded~~ Canceled Notes shall be ~~delivered~~ returned to the Borrower upon the execution and delivery of such new ~~Notes and the original superseded Notes shall be returned to the assignors thereof~~Notes. (~~vii~~vi) Each Lender may sell participations in all or a portion of its rights and obligations under this Agreement (including, without limitation, all or a portion of its Commitments and the Notes held by it); provided, however, that, no (A) each such participation shall be in a minimum amount of $5,000,000 (B) the selling Lender shall ~~transfer or grant any participation~~ remain obligated under ~~which the participant shall have rights to approve any amendment to or waiver of~~ this Agreement to the extent as it would if it had not sold such participation, (C) the selling Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (D) at no time shall the selling Lender agree with such participant to take or refrain from taking any action hereunder or under any other Loan Document, except that the selling Lender may agree not to consent, without such participant's consent, to any of the actions referred to in Article XII, to the extent ~~such amendment or waiver would (A) extend~~ that the final scheduled maturity of any Loan or Note in which such participant is participating, or reduce the rate or extend the time of payment of interest or fees thereon (except in connection with a waiver of applicability of any post-default increase in interest rates) or reduce the principal amount thereof, or increase the amount of the participant's participation over the amount thereof, or increase the amount of the participant's participation over the amount thereof then in effect (it being understood that no waiver or modification of any condition precedent, covenant or Default or of any mandatory reduction in the aggregate Commitments shall constitute a change in the terms of such participation, that an increase in any Commitment or Loan shall be permitted without same require the consent of any participant if the participant's participation is not increased as a result thereof and that any amendment or modification to the financial definitions in this Agreement shall not constitute a reduction in any rate of interest or fees for purposes of this clause (A))each Lender hereunder, (BE) consent to the assignment or transfer by the Borrower of any of its rights and obligations under this Agreement or (C) release all or substantially all of the Collateral under all of the Security Documents (except as expressly provided in the Security Documents) supporting the Loans hereunder in which such participant is participating or (D) eliminate the rights set forth in Section 1.21. In the case of any such participation, the participant shall not have any rights under this Agreement or any of the other Loan Documents (the participant's rights against such Lender in respect of such participation to be those set forth in the agreement executed by such Lender in favor of the participant relating thereto) and all amounts payable by the Borrower hereunder shall be determined as if such Lender had not sold such ~~participation~~participation and no participant shall be entitled to receive any greater amount pursuant to this Agreement than the selling Lender would have been entitled to receive in respect of the amount of the participation transferred by such Lender to such participant had no such transfer occurred, and (F) the Borrower, the Administrative Agent and the other Lenders shall continue to deal solely and directly with the selling Lender in connection with such Lender's rights and obligations under this Agreement. (~~viii~~vii) Except for an assignment made to ~~(i) another Lender, (ii)~~ a separately organized branch or an Affiliate of a ~~Lender, (iii) a Related~~ Lender ~~Party or (iv) a Qualified Institutional Lender,~~ and except during the existence of a Default, no assignment or participation referred to above shall be permitted without the prior written consent of the Administrative Agent and the Borrower, which consent shall not be unreasonably withheld or delayed. (ixviii) The Borrower may not assign any of its rights or delegate any of its duties or obligations hereunder. (x) To the extent that an assignment of all or any portion of a Lender's Commitment and outstanding Loans pursuant to subsection (b) of Article XI or this Article XII would, due to circumstances existing at the time of such assignment, result in costs under Sections 1.11, 1.13 or 1.14 which are increased from those being charged by the respective assigning Lender prior to such assignment, then the Borrower shall not be obligated to pay such increased costs (although the Borrower shall be obligated to pay any other increased costs of the type described above resulting from changes after the date of the respective assignment). (xiix) Any Lender may, in connection with any assignment or participation pursuant to this Section, disclose to the assignee or participant any information relating to the Companies ~~and the Parent Affiliates~~ furnished to such Lender by or on behalf of the Borrower and such assignee or participant shall treat such information as confidential.

Appears in 1 contract

Samples: Credit Agreement (Pegasus Communications Corp)

Benefit of Agreement Assignments and Participations. (a) This Agreement shall be binding upon and inure to the benefit of the Borrower, the Lenders and the Agent and their respective successors and ~~permitted~~ assigns, and all subsequent holders of any of the Notes or any portion ~~thereof~~hereof. (b) Each Lender may assign its rights and interests under this Agreement, the Notes and the Security Documents and/or delegate its obligations hereunder and thereunder, in whole or in part, and sell participations in the Notes and the Security Documents as security therefor, provided as follows: (i) Any such ~~assignment,~~ assignment (other than ~~an assignment in whole,~~ of all of a Lender's Notes and Commitments) made other than to ~~(A)~~ another ~~Lender, (B) a separately organized branch of a~~ Lender or ~~(C)~~ a Related Lender ~~Party,~~ Party shall reflect an assignment of such assigning Lender's Notes and Commitments which is in an aggregate principal amount of at least $~~500,000~~5,000,000, ~~unless each~~ and if greater, shall be an integral multiple of ~~the Borrower and the Agent otherwise consents to a lesser amount~~$1,000,000. (ii) Notwithstanding any provision of this Agreement to the contrary, ~~(A)~~ each Lender may at any time ~~pledge~~ assign all or any portion of its rights under this Agreement and each of the other Loan Documents, ~~including~~ including, without ~~limitation its Loans and~~ limitation, the Notes held by such Lender, to a Federal Reserve Bank (or equivalent thereof in the case of Lenders chartered outside of the United States) in support of borrowings made by such Lender from such Federal Reserve Bank and (B) any Lender that is a fund or similar investment vehicle that invests in or makes commercial loans may, without the consent of the Agent or the Borrower, pledge all or any portion of its Notes or Loans to any holders of obligations owed, or securities issued, by such Person, as security for such obligations or securities, or to any trustee for, or any other representative of, such holders); provided that ~~any foreclosure or similar action by~~ no such ~~trustee shall be subject to the provisions of this Section concerning assignments. No pledge pursuant to this subsection (ii)~~ assignment shall release ~~the transferor~~ a Lender from any of its obligations and liabilities under the Loan Documents. Any Federal Reserve Bank (or equivalent thereof) which receives such an assignment from any Lender may make further assignments of such rights in accordance with the provisions of this Section. (iii) Any assignments and/or delegations made hereunder shall be pursuant to an instrument of assignment and acceptance (the "Assignment and Acceptance") substantially in the form of ~~Schedule 12~~ SCHEDULE ------------------------- -------- 13(B)(III) and the parties to each such assignment shall execute and --------- deliver to the Agent for its acceptance the Assignment and Acceptance together with any Note or Notes subject thereto. Upon such execution and delivery, from and after the effective date specified in each Assignment and Acceptance, which effective date shall be at least five (5) Business Days after the execution ~~thereof unless otherwise permitted by the Agent~~thereof, (A) the assignee thereunder shall become a party hereto and, to the extent provided in such Assignment and Acceptance, have the rights and obligations of a Lender hereunder with ~~applicable~~ Commitments and outstanding Loans as set forth therein and (B) the assigning Lender thereunder shall, to the extent provided in such assignment, be released from its obligations under this Agreement as to that portion of its obligation being so assigned and delegated. The Assignment and Acceptance shall be deemed to amend this Agreement to the extent, and only to the extent, necessary to reflect the addition of the assignee as a Lender and the resulting adjustment of Commitments and outstanding Loans arising from the purchase by and delegation to such assignee of all or a portion of the rights and obligations of such assigning Lender under this Agreement. (iv) The Agent, on behalf of the Borrower, shall maintain at the address of the Agent referred to in Section 13.03 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 Commitments of, and principal amounts of the Loans owing to, and any Notes evidencing the Loans owned by, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, the 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; provided that in the case of an assignment by a Lender to any Related Lender Party that is not reflected on the Register, the assigning Lender shall maintain a comparable register on behalf of the Agent. 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. (v) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and the assignee together with the ~~Note or Notes, if any,~~ Note(s) subject to such assignment ~~(or a standard indemnity letter from the respective assigning Lender in respect of any lost Note or Notes)~~ and payment by ~~the assigning Lender or~~ the assignee to the Agent of a registration and processing ~~fees~~ fee of $~~3,500 in~~ 3,000, the ~~aggregate (except with respect~~ Agent shall accept such Assignment and Acceptance. Promptly upon delivering such Assignment and Acceptance to ~~assignments (A) to any Related Lender Party or another Lender or (B) by~~ the Agent, the ~~Syndication Agent or~~ assigning Lender shall give notice thereof to the ~~Documentation Agent, in their capacities as Lenders),~~ Borrower and the ~~Agent shall promptly accept such~~ other Lenders pursuant to a Notice of Assignment and Acceptance ~~and record the information contained therein~~ substantially in the ~~Register and give notice~~ form of ~~such acceptance and recordation to the Lenders and the Borrower~~SCHEDULE 13(B)(IV). Such Assignment and Acceptance and the assignment evidenced thereby shall only be effective upon appropriate entries with respect to the information contained therein being made in the Register pursuant to subparagraph (iv) above. (vi) Within five (5) Business Days after receipt of ------------------ such notice, the Borrower ~~shall, if requested by the assignee Lender,~~ shall execute and deliver to the Agent in exchange for ~~evidence of the delivery to the Agent of a copy of each~~ such surrendered ~~Note, marked "Superseded",~~ Note(s) one or more new Notes payable to the order of such assignee in an amount equal to the portion of the ~~applicable Commitment assumed and/or~~ Commitments assumed, and the Loans ~~purchased~~ purchased, by such assignee pursuant to such Assignment and Acceptance and a one or more new ~~Note~~ Notes payable to the order of the assigning Lender in an amount equal to the portion of the ~~applicable Commitment(s) and/or~~ Commitments and outstanding Loans retained by it hereunder. ~~Such~~ Each new ~~Notes~~ Note shall be dated the effective date of such Assignment and Acceptance and shall 66 otherwise be in substantially the form provided in ~~Sections~~ SECTION 1.01~~, 1.03, 1.04 or 1.04A as applicable~~. ~~Copies of~~ The canceled Note(s) surrendered by the ~~superseded Notes~~ assigning Lender shall be ~~delivered~~ returned to the Borrower upon the execution and delivery of such new ~~Notes and the original superseded Notes shall be returned to the assignors thereof~~Note(s). (~~vii~~v) Each Lender may sell participations in all or a portion of its rights and obligations under this Agreement (including, without limitation, all or a portion of its Commitments and the Notes held by it); provided, however, that, no (A) the selling Lender shall ~~transfer or grant any participation~~ remain obligated under ~~which the participant shall have rights to approve any amendment to or waiver of~~ this Agreement to the extent as it would if it had not sold such participation, (B) the selling Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (C) at no time shall the selling Lender agree with such participant to take or refrain from taking any action hereunder or under any other Loan Document, except that the selling Lender may agree not to consent, without such participant's consent, to any of the actions referred to in ARTICLE XII, to the extent ~~such amendment or waiver would (A) extend~~ that the final scheduled maturity of any Loan or Note in which such participant is participating, or reduce the rate or extend the time of payment of interest or fees thereon (except in connection with a waiver of applicability of any post-default increase in interest rates) or reduce the principal amount thereof, or increase the amount of the participant's participation over the amount thereof, or increase the amount of the participant's participation over the amount thereof then in effect (it being understood that no waiver or modification of any condition precedent, covenant or Default or of any mandatory reduction in the aggregate Commitments shall constitute a change in the terms of such participation, that an increase in any Commitment or Loan shall be permitted without same require the consent of any participant if the participant's participation is not increased as a result thereof and that any amendment or modification to the financial definitions in this Agreement shall not constitute a reduction in any rate of interest or fees for purposes of this clause (A))each Lender hereunder, (B) consent to the assignment or transfer by the Borrower of any of its rights and obligations under this Agreement or (C) release all or substantially all of the Collateral under all of the Security Documents (except as expressly provided in the Security Documents) supporting the Loans hereunder in which such participant is participating or (D) eliminate the rights set forth in Section 1.21. In the case of any such participation, the participant shall not have any rights under this Agreement or any of the other Loan Documents (the participant's rights against such Lender in respect of such participation to be those set forth in the agreement executed by such Lender in favor of the participant relating thereto) and all amounts payable by the Borrower hereunder shall be determined as if such Lender had not sold such ~~participation~~participation and no participant shall be entitled to receive any greater amount pursuant to this Agreement than the selling Lender would have been entitled to receive in respect of the amount of the participation transferred by such Lender to such participant had no such transfer occurred, and (E) the Borrower, the Agent and the other Lenders shall continue to deal solely and directly with the selling Lender in connection with such Lender's rights and obligations under this Agreement. (~~viii~~vi) Except for an assignment made to ~~(i) another Lender, (ii)~~ a separately organized branch or an Affiliate of a Lender, ~~(iii) a Related Lender Party or (iv) a Qualified Institutional Lender, and except during the existence of a Default,~~ no assignment or participation referred to above shall be permitted without the prior written consent of the ~~Agent~~ Agent, which consent shall not be unreasonably withheld or delayed. (vii) Except during the existence of an Event of Default, no assignment by a Lender referred to above, other than to a Related Lender Party and other than under paragraph (b)(ii) of this Section, shall be permitted without the prior written consent of the Borrower, which consent shall not be unreasonably withheld or delayed. (ixviii) The Borrower may not assign any of its rights or delegate any of its duties or obligations hereunder. (x) To the extent that an assignment of all or any portion of a Lender's Commitment and outstanding Loans pursuant to subsection (b) of Article XI or this Article XII would, due to circumstances existing at the time of such assignment, result in costs under Sections 1.11, 1.13 or 1.14 which are increased from those being charged by the respective assigning Lender prior to such assignment, then the Borrower shall not be obligated to pay such increased costs (although the Borrower shall be obligated to pay any other increased costs of the type described above resulting from changes after the date of the respective assignment). (xiix) Any Lender may, in connection with any assignment or participation pursuant to this Section, disclose to the assignee or participant any information relating to any of the Companies ~~and the Parent Affiliates~~ furnished to such Lender by or on behalf of the Borrower and such assignee or participant shall treat such information as confidential.

Appears in 1 contract

Samples: Credit Agreement (Voyager Net Inc)

Benefit of Agreement Assignments and Participations. (a) This Agreement shall be binding upon and inure to the benefit of the ~~Borrower~~Borrowers, the ~~Lenders and~~ Lenders, the Agent and their respective successors and ~~permitted~~ assigns, and all subsequent holders of any of the Notes or any portion ~~thereof~~hereof. (b) Each Lender may assign its rights and interests under this Agreement, the Notes and the Security Documents ~~and/or delegate its obligations hereunder and thereunder,~~ in whole or in part, and sell participations in the Notes and the Security Documents as security therefor, ~~provided~~ PROVIDED as follows: (i) No Lender shall make any assignment (other than assignment in full) other than to a separately organized branch or an Affiliate of the same Lender, if; after giving effect thereto, such Lender would hold less than $5,000,000 of the then aggregate outstanding principal amount of the Notes. (ii) Any such ~~assignment, other than an~~ assignment ~~in whole,~~ made other than to ~~(A) another Lender, (B)~~ a separately organized ~~branch of~~ branch, or an Affiliate of; a Lender ~~or (C) a Related Lender Party,~~ shall reflect an assignment of such assigning Lender's Notes ~~and Commitments~~ which is in an aggregate principal amount of at least $~~500,000~~5,000,000, ~~unless each~~ and if greater, shall be an integral multiple of ~~the Borrower and the Agent otherwise consents to a lesser amount~~$1,000,000. (iiiii) Notwithstanding any provision of this Agreement to the contrary, ~~(A)~~ each Lender may at any time ~~pledge~~ assign all or any portion of its rights under this Agreement and each of the other Loan Documents, ~~including~~ including, without ~~limitation its Loans and~~ limitation, the Notes held by such Lender, to a Federal Reserve Bank (or equivalent thereof in the case of Lenders chartered outside of the United States) in support of borrowings made by such Lender from such Federal Reserve Bank and (B) any Lender that is a fund or similar investment vehicle that invests in or makes commercial loans may, without the consent of the Agent or the Borrower, pledge all or any portion of its Notes or Loans to any holders of obligations owed, or securities issued, by such Person, as security for such obligations or securities, or to any trustee for, or any other representative of, such holders); provided that ~~any foreclosure or similar action by~~ no such ~~trustee shall be subject to the provisions of this Section concerning assignments. No pledge pursuant to this subsection (ii)~~ assignment shall release ~~the transferor~~ a Lender from any of its obligations and liabilities under the Loan Documents. Any Federal Reserve Bank (or equivalent thereof) which receives such an assignment from any Lender may make further assignments of such rights in accordance with the provisions of this Section. (~~iii~~iv) Any assignments ~~and/or delegations~~ made hereunder shall be pursuant to an instrument of assignment and acceptance (the "~~Assignment and Acceptance~~ASSIGNMENT AND ACCEPTANCE") substantially in the form of Schedule 12 12.01 and the parties to each such assignment shall execute and deliver to the Agent for its acceptance the Assignment and Acceptance together with any Note or Notes subject thereto. Upon such execution and delivery, from and after the effective date specified in each Assignment and Acceptance, which effective date shall be at least ~~five~~ two (52) Business Days after the execution ~~thereof unless otherwise permitted by the Agent,~~ thereof; (A) the assignee thereunder shall become a party ~~hereto~~ hereto, to the Loan Documents and to the Intercreditor Agreement and, to the extent provided in such Assignment and Acceptance, have the rights and obligations of a Lender hereunder with ~~applicable Loans~~ a commitment as set forth therein and (B) the assigning Lender thereunder shall, to the extent provided in such assignment, be released from its obligations under this Agreement as to that portion of its obligation being so assigned and delegated. The Assignment and Acceptance shall be deemed to amend this Agreement to the extent, and only to the extent, necessary to reflect the addition of the assignee as a Lender and the resulting adjustment of ~~Loans~~ Commitments arising from the purchase by and delegation to such assignee of all or a portion of the rights and obligations of such assigning Lender under this Agreement. (iv) The Agent, on behalf of the Borrower, shall maintain at the address of the Agent referred to in Section 13.03 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 Commitments of, and principal amounts of the Loans owing to, and any Notes evidencing the Loans owned by, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, the 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; provided that in the case of an assignment by a Lender to any Related Lender Party that is not reflected on the Register, the assigning Lender shall maintain a comparable register on behalf of the Agent. 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. (v) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and the assignee together with the Note ~~or Notes, if any,~~ subject to such assignment ~~(or a standard indemnity letter from the respective assigning Lender in respect of any lost Note or Notes)~~ and payment by ~~the assigning Lender or~~ the assignee to the Agent of a registration and processing ~~fees~~ fee of $~~3,500 in~~ 2,000.00, the ~~aggregate (except with respect~~ Agent shall accept such Assignment and Acceptance. Promptly upon delivering such Assignment and Acceptance to ~~assignments (A) to any Related Lender Party or another Lender or (B) by~~ the Agent, the ~~Syndication Agent or the Documentation Agent, in their capacities as Lenders), the Agent~~ assigning Lender shall ~~promptly accept such Assignment and Acceptance and record the information contained therein in the Register and~~ give notice ~~of such acceptance and recordation~~ thereof to the ~~Lenders~~ Borrowers and the ~~Borrower~~other Lenders. Such Assignment and Acceptance and the assignment evidenced thereby shall only be effective upon appropriate entries with respect to the information contained therein being made in the Register pursuant to subparagraph (iv) above. (vi) Within five (5) Business Days after receipt of such notice, the ~~Borrower shall, if requested by the assignee Lender,~~ Borrowers shall execute and deliver to the Agent in exchange for ~~evidence of the delivery to the Agent of a copy of each~~ such surrendered ~~Note, marked "Superseded", one~~ Note(s) a new Note or ~~more new~~ Notes payable to the order of such assignee in an amount equal to the portion of the ~~applicable Commitment~~ Loan(s) assumed ~~and/or Loans purchased~~ by such assignee pursuant to such Assignment and Acceptance and a new Note or Notes payable to the order of the assigning Lender in an amount equal to the portion of the ~~applicable Commitment(s) and/or~~ Loans retained by it hereunder. Such new Notes shall be dated the effective date of such Assignment and Acceptance and shall otherwise be in substantially the form provided in ~~Sections 1.01, 1.03, 1.04 or 1.04A as applicable~~Article II. ~~Copies of~~ The canceled Notes surrendered by the ~~superseded Notes~~ assigning Lender shall be ~~delivered~~ returned to the ~~Borrower~~ Borrowers upon the execution and delivery of such new ~~Notes and the original superseded Notes shall be returned to the assignors thereof~~Notes. (~~vii~~vi) Each Lender may sell participations in all or a portion of its rights and obligations under this Agreement (including, without limitation, all or a portion of its Commitments and the Notes held by it); ~~provided~~PROVIDED, ~~however~~HOWEVER, that, no (A) the selling Lender shall ~~transfer or grant any participation~~ remain obligated under ~~which the participant shall have rights to approve any amendment to or waiver of~~ this Agreement to the extent as it would if it had not sold such participation, (B) the selling Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (C) at no time shall the selling Lender agree with such participant to take or refrain from taking any action hereunder or under any other Loan Document, except that the selling Lender may agree not to consent, without such participant's consent, to any of the actions referred to ARTICLE XI, to the extent ~~such amendment or waiver would (A) extend~~ that the final scheduled maturity of any Loan or Note in which such participant is participating, or reduce the rate or extend the time of payment of interest or fees thereon (except in connection with a waiver of applicability of any post-default increase in interest rates) or reduce the principal amount thereof, or increase the amount of the participant's participation over the amount thereof, or increase the amount of the participant's participation over the amount thereof then in effect (it being understood that no waiver or modification of any condition precedent, covenant or Default or of any mandatory reduction in the aggregate Commitments shall constitute a change in the terms of such participation, that an increase in any Commitment or Loan shall be permitted without same require the consent of any participant if the participant's participation is not increased as a result thereof and that any amendment or modification to the financial definitions in this Agreement shall not constitute a reduction in any rate of interest or fees for purposes of this clause (A))each Lender hereunder, (B) consent to the assignment or transfer by the Borrower of any of its rights and obligations under this Agreement or (C) release all or substantially all of the Collateral under all of the Security Documents (except as expressly provided in the Security Documents) supporting the Loans hereunder in which such participant is participating or (D) eliminate the rights set forth in Section 1.21. In the case of any such participation, the participant shall not have any rights under this Agreement or any of the other Loan Documents (the participant's rights against such Lender in respect of such participation to be those set forth in the agreement executed by such Lender in favor of the participant relating thereto) and all amounts payable by the ~~Borrower~~ Borrowers hereunder shall be determined as if such Lender had not sold such ~~participation~~participation and no participant shall be entitled to receive any greater amount pursuant to this Agreement than the selling Lender would have been entitled to receive in respect of the amount of the participation transferred by such Lender to such participant had no such transfer occurred, and (E) the Borrowers, the Agent, and the other Lenders shall continue to deal solely and directly with the selling Lender in connection with such Lender's rights and obligations under this Agreement. (~~viii~~vii) Except ~~for~~ during the existence of an Event of Default, no assignment ~~made~~ by a Lender referred to ~~(i) another Lender, (ii)~~ above other than to a separately organized branch or Affiliate of ~~a Lender,~~ such Lender and other than under paragraph (~~iii~~b)(iii) ~~a Related Lender Party or (iv) a Qualified Institutional Lender, and except during the existence of a Default, no assignment referred to above~~ hereof shall be permitted without the prior written consent of the ~~Agent and the Borrower~~Agent, which consent shall not be unreasonably withheld or delayed. (ixviii) ~~The~~ No Borrower may ~~not~~ assign any of its rights or delegate any of its duties or obligations hereunder. (x) To the extent that an assignment of all or any portion of a Lender's Commitment and outstanding Loans pursuant to subsection (b) of Article XI or this Article XII would, due to circumstances existing at the time of such assignment, result in costs under Sections 1.11, 1.13 or 1.14 which are increased from those being charged by the respective assigning Lender prior to such assignment, then the Borrower shall not be obligated to pay such increased costs (although the Borrower shall be obligated to pay any other increased costs of the type described above resulting from changes after the date of the respective assignment). (xiix) Any Lender may, in connection with any assignment or participation pursuant to this Section, disclose to the assignee or participant any information relating to the ~~Companies and the Parent Affiliates~~ Borrowers furnished to such Lender by or on behalf of the ~~Borrower~~ Borrowers and such assignee or participant shall treat such information as confidential.

Appears in 1 contract

Samples: Loan Agreement (Asi Group LLC)

Benefit of Agreement Assignments and Participations. (a) This Agreement shall be binding upon and inure to the benefit of and be enforceable by the ~~Borrower, the Lenders and the Agent and their~~ respective successors and ~~permitted assigns, and all subsequent holders of any~~ assigns of the ~~Notes or any portion thereof. (b) Each Lender may assign its rights and interests under this Agreement~~parties hereto; provided, ~~the Notes and the Security Documents and/or delegate its obligations hereunder and thereunder~~however, ~~in whole or in part, and sell participations in the Notes and the Security Documents as security therefor, provided as follows:~~ that (i) ~~Any such assignment~~no Credit Party may assign or transfer any of its rights, obligations or interests hereunder or under any other than an assignment in whole, made other than to (A) another Lender, (B) a separately organized branch of a Lender or (C) a Related Lender Party, shall reflect an assignment of such assigning Lender's Notes and Commitments which is in an aggregate principal amount of at least $500,000, unless each Credit Document without the prior written consent of the ~~Borrower and the Agent otherwise consents to a lesser amount.~~ Lenders, (ii) ~~Notwithstanding~~ although any ~~provision of this Agreement to the contrary, (A) each~~ Lender may ~~at any time pledge~~ transfer, assign or grant participations in its rights hereunder, such Lender shall remain a “Lender” for all purposes hereunder (and may not transfer or assign all or any portion of its ~~rights under this Agreement~~ Revolving Loan Commitments hereunder except as provided in Sections 2.12 and ~~each of the other Loan Documents, including without limitation its Loans~~ 13.04(b)) and the ~~Notes held by such Lender~~transferee, ~~to a Federal Reserve Bank (~~assignee or ~~equivalent thereof in~~ participant, as the case ~~of Lenders chartered outside of the United States) in support of borrowings made by such Lender from such Federal Reserve Bank~~ may be, shall not constitute a “Lender” hereunder and (B) any Lender that is a fund or similar investment vehicle that invests in or makes commercial loans may, without the consent of the Agent or the Borrower, pledge all or any portion of its Notes or Loans to any holders of obligations owed, or securities issued, by such Person, as security for such obligations or securities, or to any trustee for, or any other representative of, such holders; provided that any foreclosure or similar action by such trustee shall be subject to the provisions of this Section concerning assignments. No pledge pursuant to this subsection (ii) shall release the transferor Lender from any of its obligations and liabilities under the Loan Documents. (iii) Any assignments and/or delegations made hereunder shall be pursuant to an instrument of assignment and acceptance (the "Assignment and Acceptance") substantially in the form of Schedule 12 and the parties to each such assignment shall execute and deliver to the Agent for its acceptance the Assignment and Acceptance together with any Note or Notes subject thereto. Upon such execution and delivery, from and after the effective date specified in each Assignment and Acceptance, which effective date shall be at least five (5) Business Days after the execution thereof unless otherwise permitted by the Agent, (A) the assignee thereunder shall become a party hereto and, to the extent provided in such Assignment and Acceptance, have the rights and obligations of a Lender hereunder with applicable Loans as set forth therein and (B) the assigning Lender thereunder shall, to the extent provided in such assignment, be released from its obligations under this Agreement as to that portion of its obligation being so assigned and delegated. The Assignment and Acceptance shall be deemed to amend this Agreement to the extent, and only to the extent, necessary to reflect the addition of the assignee as a Lender and the resulting adjustment of Loans arising from the purchase by and delegation to such assignee of all or a portion of the rights and obligations of such assigning Lender under this Agreement. (iv) The Agent, on behalf of the Borrower, shall maintain at the address of the Agent referred to in Section 13.03 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 Commitments of, and principal amounts of the Loans owing to, and any Notes evidencing the Loans owned by, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, the 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; provided that in the case of an assignment by a Lender to any Related Lender Party that is not reflected on the Register, the assigning Lender shall maintain a comparable register on behalf of the Agent. 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. (v) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and the assignee together with the Note or Notes, if any, subject to such assignment (or a standard indemnity letter from the respective assigning Lender in respect of any lost Note or Notes) and payment by the assigning Lender or the assignee to the Agent of registration and processing fees of $3,500 in the aggregate (except with respect to assignments (A) to any Related Lender Party or another Lender or (B) by the Agent, the Syndication Agent or the Documentation Agent, in their capacities as Lenders), the Agent shall promptly accept such Assignment and Acceptance and record the information contained therein in the Register and give notice of such acceptance and recordation to the Lenders and the Borrower. Such Assignment and Acceptance and the assignment evidenced thereby shall only be effective upon appropriate entries with respect to the information contained therein being made in the Register pursuant to subparagraph (iv) above. (vi) Within five (5) Business Days after receipt of such notice, the Borrower shall, if requested by the assignee Lender, execute and deliver to the Agent in exchange for evidence of the delivery to the Agent of a copy of each such surrendered Note, marked "Superseded", one or more new Notes payable to the order of such assignee in an amount equal to the portion of the applicable Commitment assumed and/or Loans purchased by such assignee pursuant to such Assignment and Acceptance and a new Note payable to the order of the assigning Lender in an amount equal to the portion of the applicable Commitment(s) and/or Loans retained by it hereunder. Such new Notes shall be dated the effective date of such Assignment and Acceptance and shall otherwise be in substantially the form provided in Sections 1.01, 1.03, 1.04 or 1.04A as applicable. Copies of the superseded Notes shall be delivered to the Borrower upon execution and delivery of such new Notes and the original superseded Notes shall be returned to the assignors thereof. (vii) Each Lender may sell participations in all or a portion of its rights and obligations under this Agreement (including, without limitation, all or a portion of the Notes held by it); provided, however, that, no Lender shall transfer or grant any participation under which the participant shall have rights to approve any amendment to or waiver of this Agreement or any other ~~Loan Document,~~ Credit Document except to the extent such amendment or waiver would (Ax) extend the final scheduled maturity of any Loan or Note in which such participant is participating, or reduce the rate or extend the time of payment of interest or ~~fees~~ Commitment Commission thereon (except (m) in connection with a waiver of applicability of any post-default increase in interest ~~rates~~rates and (n) or reduce the principal amount thereof, or increase the amount of the participant's participation over the amount thereof, or increase the amount of the participant's participation over the amount thereof then in effect (it being understood that no waiver or modification of any condition precedent, covenant or Default or of any mandatory reduction in the aggregate Commitments shall constitute a change in the terms of such participation, that an increase in any Commitment or Loan shall be permitted without the consent of any participant if the participant's participation is not increased as a result thereof and that any amendment or modification to the financial definitions in this Agreement shall not constitute a reduction in ~~any~~ the rate of interest ~~or fees~~ for purposes of this clause (Ax)) or reduce the principal amount thereof, or increase the amount of the participant’s participation over the amount thereof then in effect (it being understood that a waiver of any Default or Event of Default or of a mandatory reduction in the Total Commitment shall not constitute a change in the terms of such participation, and that an increase in any Revolving Loan Commitment or Loan shall be permitted without the consent of any participant if the participant’s participation is not increased as a result thereof), (By) consent to the assignment or transfer by the ~~Borrower~~ Borrowers of any of ~~its~~ their rights and obligations under this Agreement or (Cz) release all or substantially all of the Collateral under all of the Security Documents (except as expressly provided in the ~~Security~~ Credit Documents) ~~supporting~~ securing the Loans hereunder in which such participant is ~~participating or (D) eliminate the rights set forth in Section 1.21~~participating. In the case of any such participation, the participant shall not have any rights under this Agreement or any of the other ~~Loan~~ Credit Documents (the participant's ’s rights against such Lender in respect of such participation to be those set forth in the agreement executed by such Lender in favor of the participant relating thereto) and all amounts payable by the ~~Borrower~~ Borrowers hereunder shall be determined as if such Lender had not sold such participation. (~~viii~~b) ~~Except for an assignment made~~ Notwithstanding the foregoing, any Lender (or any Lender together with one or more other Lenders) may (x) assign all or a portion of its Revolving Loan Commitment and/or its outstanding Loans to its (i) ~~another Lender~~parent company so long as such parent company is solvent and/or any affiliate of such Lender which is at least 50% owned by such Lender or its parent company (so long as such affiliate is solvent) or (ii) in the case of any Lender that is a fund that invests in bank loans, any other fund that invests in bank loans and is managed or advised by the same investment advisor of such Lender or by an Affiliate of such investment advisor (so long as such fund is solvent) or (iii) to one or more Lenders or (y) assign with the consent of the Borrowers (which consent shall not be unreasonably withheld or delayed and shall not be required if any Event of Default is then in existence) all, or if less than all, a portion equal to at least $5,000,000 in the aggregate for the assigning Lender or assigning Lenders, of such Revolving Loan Commitments and outstanding principal amount of Loans hereunder to one or more Eligible Transferees (treating any fund that invests in bank loans and any other fund that invests in bank loans and is managed or advised by the same investment advisor of such fund or by an Affiliate of such investment advisor as a single Eligible Transferee), each of which assignees shall become a party to this Agreement as a Lender by execution of an Assignment and Assumption Agreement, provided that (i) at such time Schedule I shall be deemed modified to reflect the Revolving Loan Commitments (and/or outstanding Loans, as the case may be) of such new Lender and of the existing Lenders, (ii) ~~a separately organized branch~~ upon the surrender of a the relevant Notes assigned by the Lender, new Notes will be issued, at the Borrowers’ expense, to such new Lender and to the assigning Lender upon the request of such new Lender or assigning Lender, such new Notes to be in conformity with the requirements of Section 2.05 (with appropriate modifications) to the extent needed to reflect the revised Revolving Loan Commitments (and/or outstanding Loans, as the case may be), (iii) ~~a Related Lender Party or (iv) a Qualified Institutional Lender, and except during~~ the ~~existence of a Default, no assignment referred to above shall be permitted without the prior written~~ consent of the Administrative Agent ~~and the Borrower,~~ shall be required in connection with any assignment pursuant to preceding clause (y) (which consent shall not be unreasonably withheld or delayed. ), and (ixiv) ~~The Borrower may not assign~~ the Administrative Agent shall receive at the time of each such assignment, from the assigning or assignee Lender, the payment of a non-refundable assignment fee of $3,000. To the extent of any assignment pursuant to this Section 13.04(b), the assigning Lender shall be relieved of its ~~rights or delegate any~~ obligations hereunder with respect to its assigned Revolving Loan Commitments and outstanding Loans. At the time of ~~its duties or obligations~~ each assignment pursuant to this Section 13.04(b) to a Person which is not already a Lender hereunder~~. (x)~~ , the respective assignee Lender shall, to the extent legally entitled to do so, comply with Section 4.04(b). To the extent that an assignment of all or any portion of a Lender~~'s Commitment~~ ’s Revolving Loan Commitments and related outstanding ~~Loans~~ Obligations pursuant to ~~subsection (b) of Article XI~~ Section 2.12 or this ~~Article XII~~ Section 13.04(b) would, ~~due to circumstances existing~~ at the time of such assignment, result in increased costs under ~~Sections 1.11, 1.13~~ Section 2.09 or ~~1.14 which are increased~~ 2.10 from those being charged by the respective assigning Lender prior to such assignment, then the ~~Borrower~~ Borrowers shall not be obligated to pay such increased costs (although the ~~Borrower~~ Borrowers, in accordance with and pursuant to the other provisions of this Agreement, shall be obligated to pay any other increased costs of the type described above resulting from changes after the date of the respective assignment). (xic) ~~Any~~ Nothing in this Agreement shall prevent or prohibit any Lender ~~may~~from pledging its Loans and Notes hereunder to a Federal Reserve Bank in support of borrowings made by such Lender from such Federal Reserve Bank and, with prior notification to the Administrative Agent (but without the consent of the Administrative Agent or the Borrowers), any Lender which is a fund may pledge all or any portion of its Loans and Notes to its trustee or to a collateral agent providing credit or credit support to such Lender in ~~connection with any assignment~~ support of its obligations to such trustee, such collateral agent or ~~participation~~ a holder of such obligations, as the case may be. No pledge pursuant to this ~~Section, disclose to~~ clause (c) shall release the ~~assignee or participant~~ transferor Lender from any ~~information relating to the Companies and the Parent Affiliates furnished to such Lender by or on behalf~~ of ~~the Borrower and such assignee or participant shall treat such information as confidential~~its obligations hereunder.

Appears in 1 contract

Samples: Credit Agreement (Trico Marine Services Inc)

Benefit of Agreement Assignments and Participations. (a) This Agreement shall be binding upon and inure to the benefit of the Borrower, the Lenders and the Agent and their respective successors and permitted assigns, and all subsequent holders of any of the Notes or any portion thereof. (b) Each Lender may assign its rights and interests under this Agreement, the Notes and the Security Documents and/or delegate its obligations hereunder and thereunder, in whole or in part, and sell participations in the Notes and the Security Documents as security therefor, provided as follows: (i) Any such assignment, other than an assignment in whole, made other than to (A) another Lender, (B) a separately organized branch of a Lender or (C) a Related Lender Party, shall reflect an assignment of such assigning Lender's Notes and Commitments which is in an aggregate principal amount of at least $~~500,000~~2,500,000, unless each of the Borrower and the Agent otherwise consents to a lesser amount. (ii) Notwithstanding any provision of this Agreement to the contrary, (A) each Lender may at any time pledge all or any portion of its rights under this Agreement and each of the other Loan Documents, including without limitation its Loans and the Notes held by such Lender, to a Federal Reserve Bank (or equivalent thereof in the case of Lenders chartered outside of the United States) in support of borrowings made by such Lender from such Federal Reserve Bank and (B) any Lender that is a fund ~~or similar investment vehicle~~ that invests in ~~or makes commercial~~ bank loans may, without the consent of the Agent or the Borrower, pledge all or any portion of its Notes or Loans to any holders of obligations owed, or securities issued, by such ~~Person~~fund, as security for such obligations or securities, or to any trustee for, or any other representative of, such holders; provided that any foreclosure or similar action by such trustee shall be subject to the provisions of this Section concerning assignments. No pledge pursuant to this subsection (ii) shall release the transferor Lender from any of its obligations and liabilities under the Loan Documents. (iii) Any assignments and/or delegations made hereunder shall be pursuant to an instrument of assignment and acceptance (the "Assignment and Acceptance") substantially in the form of Schedule 12 and the parties to each such assignment shall execute and deliver to the Agent for its acceptance the Assignment and Acceptance together with any Note or Notes subject thereto. Upon such execution and delivery, from and after the effective date specified in each Assignment and Acceptance, which effective date shall be at least five (5) Business Days after the execution thereof unless otherwise permitted by the Agent, (A) the assignee thereunder shall become a party hereto and, to the extent provided in such Assignment and Acceptance, have the rights and obligations of a Lender hereunder with applicable ~~Loans~~ Commitments as set forth therein and (B) the assigning Lender thereunder shall, to the extent provided in such assignment, be released from its obligations under this Agreement as to that portion of its obligation being so assigned and delegated. The Assignment and Acceptance shall be deemed to amend this Agreement to the extent, and only to the extent, necessary to reflect the addition of the assignee as a Lender and the resulting adjustment of ~~Loans~~ Commitments arising from the purchase by and delegation to such assignee of all or a portion of the rights and obligations of such assigning Lender under this Agreement. (iv) The Agent, on behalf of the Borrower, shall maintain at the address of the Agent referred to in Section 13.03 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 Commitments of, and principal amounts of the Loans owing to, and any Notes evidencing the Loans owned by, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, the 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; provided that in the case of an assignment by a Lender to any Related Lender Party that is not reflected on the Register, the assigning Lender shall maintain a comparable register on behalf of the Agent. 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. (v) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and the assignee together with the Note or ~~Notes, if any,~~ Notes subject to such assignment (or a standard indemnity letter from the respective assigning Lender in respect of any lost Note or Notes) and payment by the assigning Lender or the assignee to the Agent of registration and processing fees of $3,500 in the aggregate (except with respect to assignments (A) to any Related Lender Party or another Lender or (B) by the Agent, the Syndication Agent or the Documentation Agent, in their capacities as Lenders), the Agent shall promptly accept such Assignment and Acceptance and record the information contained therein in the Register and give notice of such acceptance and recordation to the Lenders and the Borrower. Such Assignment and Acceptance and the assignment evidenced thereby shall only be effective upon appropriate entries with respect to the information contained therein being made in the Register pursuant to subparagraph (iv) above. (vi) Within five (5) Business Days after receipt of such notice, the Borrower ~~shall, if requested by the assignee Lender,~~ shall execute and deliver to the Agent in exchange for evidence of the delivery to the Agent of a copy of each such surrendered Note, marked "Superseded"), one or more new Notes payable to the order of such assignee in an amount equal to the portion of the applicable Commitment assumed and/or Loans purchased by such assignee pursuant to such Assignment and Acceptance and a new Note payable to the order of the assigning Lender in an amount equal to the portion of the applicable Commitment(s) and/or Loans retained by it hereunder. Such new Notes shall be dated the effective date of such Assignment and Acceptance and shall otherwise be in substantially the form provided in ~~Sections~~ Section 1.01, 1.03, 1.04 or 1.04A as applicable. Copies of the superseded Notes shall be delivered to the Borrower upon execution and delivery of such new Notes and the original superseded Notes shall be returned to the assignors thereof. (vii) Each Lender may sell participations in all or a portion of its rights and obligations under this Agreement (including, without limitation, all or a portion of the Notes held by it); provided, however, that, no Lender shall transfer or grant any participation under which the participant shall have rights to approve any amendment to or waiver of this Agreement or any other Loan Document, except to the extent such amendment or waiver would (A) extend the final scheduled maturity of any Loan or Note in which such participant is participating, or reduce the rate or extend the time of payment of interest or fees thereon (except in connection with a waiver of applicability of any post-default increase in interest rates) or reduce the principal amount thereof, or increase the amount of the participant's participation over the amount thereof, or increase the amount of the participant's participation over the amount thereof then in effect (it being understood that no waiver or modification of any condition precedent, covenant or Default or of any mandatory reduction in the aggregate Commitments shall constitute a change in the terms of such participation, that an increase in any Commitment or Loan shall be permitted without the consent of any participant if the participant's participation is not increased as a result thereof and that any amendment or modification to the financial definitions in this Agreement shall not constitute a reduction in any rate of interest or fees for purposes of this clause (A)), (B) consent to the assignment or transfer by the Borrower of any of its rights and obligations under this Agreement or (C) release all or substantially all of the Collateral under all of the Security Documents (except as expressly provided in the Security Documents) supporting the Loans hereunder in which such participant is participating or (D) eliminate the rights set forth in Section 1.21. In the case of any such participation, the participant shall not have any rights under this Agreement or any of the other Loan Documents (the participant's rights against such Lender in respect of such participation to be those set forth in the agreement executed by such Lender in favor of the participant relating thereto) and all amounts payable by the Borrower hereunder shall be determined as if such Lender had not sold such participation. (viii) Except for an assignment made to (i) another Lender, (ii) a separately organized branch of a Lender, (iii) a Related Lender Party or (iv) a Qualified Institutional Lender, and except during the existence of a Default, no assignment referred to above shall be permitted without the prior written consent of the Agent and the Borrower, which consent shall not be unreasonably withheld or delayed. (ix) The Borrower may not assign any of its rights or delegate any of its duties or obligations hereunder. (x) To the extent that an assignment of all or any portion of a Lender's Commitment and outstanding Loans pursuant to subsection (b) of Article XI or this Article XII would, due to circumstances existing at the time of such assignment, result in costs under Sections 1.11, 1.13 or 1.14 which are increased from those being charged by the respective assigning Lender prior to such assignment, then the Borrower shall not be obligated to pay such increased costs (although the Borrower shall be obligated to pay any other increased costs of the type described above resulting from changes after the date of the respective assignment). (xi) Any Lender may, in connection with any assignment or participation pursuant to this Section, disclose to the assignee or participant any information relating to the Companies and the Parent Affiliates furnished to such Lender by or on behalf of the Borrower and such assignee or participant shall treat such information as confidential.

Appears in 1 contract

Samples: Credit Agreement (Pegasus Communications Corp)

Benefit of Agreement Assignments and Participations. (a) This Agreement shall be binding upon and inure to the benefit of and be enforceable by the ~~Borrower, the Lenders and the Agent and their~~ respective successors and ~~permitted assigns~~assigns of the parties hereto; provided, ~~and all subsequent holders of~~ however, no Obligor may assign or transfer any of its rights, obligations or interest hereunder or under any other Credit Document without the ~~Notes or any portion thereof~~prior written consent of each Bank. (b) Each ~~Lender~~ Bank may assign its rights and interests under this Agreement, the Notes and the Security Documents and/or delegate its obligations hereunder and thereunder, in whole or in part, and sell participations in the Notes and the Security Documents as security therefor, provided as follows: (i) Any such assignment, other than an assignment in whole, made other than to (A) another Lender, (B) a separately organized branch of a Lender or (C) a Related Lender Party, shall reflect an assignment of such assigning Lender's Notes and Commitments which is in an aggregate principal amount of at least $500,000, unless each of the Borrower and the Agent otherwise consents to a lesser amount. (ii) Notwithstanding any provision of this Agreement to the contrary, (A) each Lender may at any time pledge all or any portion of its rights under this Agreement and each of the other Loan Documents, including without limitation its Loans and the Notes held by such Lender, to a Federal Reserve Bank (or equivalent thereof in the case of Lenders chartered outside of the United States) in support of borrowings made by such Lender from such Federal Reserve Bank and (B) any Lender that is a fund or similar investment vehicle that invests in or makes commercial loans may, without the consent of the Agent or the Borrower, pledge all or any portion of its Notes or Loans to any holders of obligations owed, or securities issued, by such Person, as security for such obligations or securities, or to any trustee for, or any other representative of, such holders; provided that any foreclosure or similar action by such trustee shall be subject to the provisions of this Section concerning assignments. No pledge pursuant to this subsection (ii) shall release the transferor Lender from any of its obligations and liabilities under the Loan Documents. (iii) Any assignments and/or delegations made hereunder shall be pursuant to an instrument of assignment and acceptance (the "Assignment and Acceptance") substantially in the form of Schedule 12 and the parties to each such assignment shall execute and deliver to the Agent for its acceptance the Assignment and Acceptance together with any Note or Notes subject thereto. Upon such execution and delivery, from and after the effective date specified in each Assignment and Acceptance, which effective date shall be at least five (5) Business Days after the execution thereof unless otherwise permitted by the Agent, (A) the assignee thereunder shall become a party hereto and, to the extent provided in such Assignment and Acceptance, have the rights and obligations of a Lender hereunder with applicable Loans as set forth therein and (B) the assigning Lender thereunder shall, to the extent provided in such assignment, be released from its obligations under this Agreement as to that portion of its obligation being so assigned and delegated. The Assignment and Acceptance shall be deemed to amend this Agreement to the extent, and only to the extent, necessary to reflect the addition of the assignee as a Lender and the resulting adjustment of Loans arising from the purchase by and delegation to such assignee of all or a portion of the rights and obligations of such assigning Lender under this Agreement. (iv) The Agent, on behalf of the Borrower, shall maintain at the address of the Agent referred to in Section 13.03 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 Commitments of, and principal amounts of the Loans owing to, and any Notes evidencing the Loans owned by, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, the 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; provided that in the case of an assignment by a Lender to any Related Lender Party that is not reflected on the Register, the assigning Lender shall maintain a comparable register on behalf of the Agent. 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. (v) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and the assignee together with the Note or Notes, if any, subject to such assignment (or a standard indemnity letter from the respective assigning Lender in respect of any lost Note or Notes) and payment by the assigning Lender or the assignee to the Agent of registration and processing fees of $3,500 in the aggregate (except with respect to assignments (A) to any Related Lender Party or another Lender or (B) by the Agent, the Syndication Agent or the Documentation Agent, in their capacities as Lenders), the Agent shall promptly accept such Assignment and Acceptance and record the information contained therein in the Register and give notice of such acceptance and recordation to the Lenders and the Borrower. Such Assignment and Acceptance and the assignment evidenced thereby shall only be effective upon appropriate entries with respect to the information contained therein being made in the Register pursuant to subparagraph (iv) above. (vi) Within five (5) Business Days after receipt of such notice, the Borrower shall, if requested by the assignee Lender, execute and deliver to the Agent in exchange for evidence of the delivery to the Agent of a copy of each such surrendered Note, marked "Superseded", one or more new Notes payable to the order of such assignee in an amount equal to the portion of the applicable Commitment assumed and/or Loans purchased by such assignee pursuant to such Assignment and Acceptance and a new Note payable to the order of the assigning Lender in an amount equal to the portion of the applicable Commitment(s) and/or Loans retained by it hereunder. Such new Notes shall be dated the effective date of such Assignment and Acceptance and shall otherwise be in substantially the form provided in Sections 1.01, 1.03, 1.04 or 1.04A as applicable. Copies of the superseded Notes shall be delivered to the Borrower upon execution and delivery of such new Notes and the original superseded Notes shall be returned to the assignors thereof. (vii) Each Lender may sell participations in all or a portion of its ~~rights~~ Loans or Commitments hereunder to one or more Eligible Assignees each of which assignees shall become a party to this Agreement as a Bank by execution of an assignment agreement, substantially in the form of Exhibit J; provided that, (i) at such time Schedule I shall be deemed modified to reflect the Commitments of such new Bank and of the existing Banks; (ii) the Obligors will issue new Notes to such new Bank and to the assigning Bank upon the request of such new Bank or assigning Bank in replacement of the original Notes, such new Notes to be in conformity with the requirements of Section 2.4 to the extent needed to reflect the ownership of the Loans; (iii) the Administrative Agent shall receive at the time of each such assignment, from the assignee, the payment of a non-refundable assignment fee of U.S.$3,500; and (iv) each such assignment shall be in a minimum amount of U.S.$10,000,000. To the extent of any assignment Gerdau Export and Working Capital Agreement (c) The Borrowers hereby designate the Administrative Agent to serve as the Borrowers’ agent, solely for purposes of this Section 13.3(c), to maintain a register (the “Register”) on which it will record the Commitments from time to time of each of the Banks, the Loans made by each of the Banks and each repayment in respect of the principal amount of the Loans of each Bank. The requirements of this Section 13.3(c) and Section 13.3(b) are intended to result in the Loans being in “registered form” for purposes of Section 871, Section 881 or any other applicable provision of the Code, and shall be interpreted and applied in a manner consistent therewith. Failure to make any such recordation, or any error in such recordation shall not affect the Borrowers’ obligations in respect of the Loans. Each Borrower agrees to indemnify the Administrative Agent from and against any and all losses, claims, damages and liabilities of whatsoever nature which may be imposed on, asserted against or incurred by the Administrative Agent in performing its duties under this ~~Agreement (including~~Section 13.3(c), ~~without limitation~~except to the extent that such losses, ~~all~~ claims, damages or ~~a portion~~ liabilities were caused by the gross negligence or willful misconduct of the ~~Notes held by it); provided~~Administrative Agent. (d) Notwithstanding the foregoing, ~~however~~any Bank may transfer or grant participations in its rights hereunder without the consent of any Obligor. In connection with any such participation, ~~that,~~ such Bank shall remain a “Bank” for all purposes hereunder and the participant shall not constitute a “Bank” hereunder and no ~~Lender~~ Bank shall transfer or grant any participation under which the participant shall have rights to approve any amendment to or waiver of this Agreement or any other ~~Loan Document,~~ Credit Document except to the extent such amendment or waiver would (Ai) extend the final scheduled maturity of any Loan or Note in which such participant is participating, or reduce the rate or extend the time of payment of interest or fees thereon (except in connection with a waiver of applicability of any post-default increase in interest rates) or reduce the principal amount thereof, or increase the ~~amount of the participant's participation over the amount thereof, or increase the amount of the participant's participation~~ Commitments in which such participant is participating over the amount thereof then in effect (it being understood that no a waiver ~~or modification~~ of any ~~condition precedent, covenant or~~ Default or Event of ~~any mandatory reduction in the aggregate Commitments~~ Default shall not constitute a change in the terms of ~~such participation~~any Commitment, and that an increase in any Commitment ~~or Loan~~ shall be permitted without the consent of any participant if the participant's ’s participation is not increased as a result ~~thereof and that any amendment~~ thereof) or ~~modification to the financial definitions in this Agreement shall not constitute a reduction in any rate of interest or fees for purposes of this clause~~ (~~A)), (B~~ii) consent to the assignment or transfer by ~~the Borrower~~ any Obligor of any of its rights and obligations under this Agreement or (C) release all or substantially all of the Collateral under all of the Security Documents (except as expressly provided in the Security Documents) supporting the Loans hereunder in which such participant is participating or (D) eliminate the rights set forth in Section 1.21Agreement. In the case of any such participation, the participant shall not have any rights under this Agreement or any of the other ~~Loan~~ Credit Documents (the participant's ’s rights against such ~~Lender~~ Bank in respect of such participation to be those set forth in the agreement executed by such ~~Lender~~ Bank in favor of the participant relating thereto) and all amounts payable by the ~~Borrower~~ Borrowers hereunder shall be determined as if such ~~Lender~~ Bank had not sold such participation., except that the participant Gerdau Export and Working Capital Agreement (~~viii~~e) ~~Except for an assignment made~~ In addition to the assignments and participations permitted under the foregoing provisions of this Section 13.3, any Bank may (~~i) another Lender, (ii) a separately organized branch of a Lender, (iii) a Related Lender Party~~ without notice or ~~(iv) a Qualified Institutional Lender, and except during the existence of a Default, no assignment referred to above shall be permitted without the prior written~~ consent of the ~~Agent~~ Administrative Agent, the Borrowers or any other Person and ~~the Borrower, which consent shall not be unreasonably withheld or delayed. (ix~~without payment of any fee) ~~The Borrower may not~~ assign ~~any of its rights or delegate any of its duties or obligations hereunder. (x) To the extent that an assignment of~~ and pledge all or any portion of ~~a Lender's Commitment~~ its Loans and ~~outstanding Loans~~ Notes to any U.S. Federal Reserve Bank as collateral security pursuant to subsection (b) of Article XI or this Article XII would, due to circumstances existing at the time of such assignment, result in costs under Sections 1.11, 1.13 or 1.14 which are increased from those being charged by the respective assigning Lender prior to such assignment, then the Borrower shall not be obligated to pay such increased costs (although the Borrower shall be obligated to pay any other increased costs Regulation A of the ~~type described above resulting from changes after the date~~ Board of Governors of the ~~respective assignment)~~U.S. Federal Reserve System and any operating circular issued by such Federal Reserve Bank. No such assignment shall release the assigning Bank from its obligations hereunder. (xi) Any Lender may, in connection with any assignment or participation pursuant to this Section, disclose to the assignee or participant any information relating to the Companies and the Parent Affiliates furnished to such Lender by or on behalf of the Borrower and such assignee or participant shall treat such information as confidential.

Appears in 1 contract

Samples: Senior Export and Working Capital Facility Agreement

Benefit of Agreement Assignments and Participations. (a) This Agreement shall be binding upon and inure to the benefit of the Borrower, the Lenders and the Agent and their respective successors and permitted assigns, and all subsequent holders of any of the Notes or any portion thereof. (b) Each Lender may assign its rights and interests under this Agreement, the Notes and the Security Documents and/or delegate its obligations hereunder and thereunder, in whole or in part, and sell participations in the Notes and the Security Documents as security therefor, provided as follows: (i) Any such assignment, other than an assignment in whole, made other than to (A) another Lender, (B) a separately organized branch of a Lender or (C) a Related Lender Party, shall reflect an assignment of such assigning Lender's Notes and Commitments which is in an aggregate principal amount of at least $~~500,000~~1,000,000, unless each of the Borrower and the Agent otherwise consents to a lesser amount. (ii) Notwithstanding any provision of this Agreement to the contrary, (A) each Lender may at any time pledge all or any portion of its rights under this Agreement and each of the other Loan Documents, including without limitation its Loans and the Notes held by such Lender, to a Federal Reserve Bank (or equivalent thereof in the case of Lenders chartered outside of the United States) in support of borrowings made by such Lender from such Federal Reserve Bank and (B) any Lender that is a fund ~~or similar investment vehicle~~ that invests in ~~or makes commercial~~ bank loans may, without the consent of the Agent or the Borrower, pledge all or any portion of its Notes or Loans to any holders of obligations owed, or securities issued, by such ~~Person~~fund, as security for such obligations or securities, or to any trustee for, or any other representative of, such holders; provided that any foreclosure or similar action by such trustee shall be subject to the provisions of this Section concerning assignments. No pledge pursuant to this subsection (ii) shall release the transferor Lender from any of its obligations and liabilities under the Loan Documents. (iii) Any assignments and/or delegations made hereunder shall be pursuant to an instrument of assignment and acceptance (the "Assignment and Acceptance") substantially in the form of Schedule 12 and the parties to each such assignment shall execute and deliver to the Agent for its acceptance the Assignment and Acceptance together with any Note or Notes subject thereto. Upon such execution and delivery, from and after the effective date specified in each Assignment and Acceptance, which effective date shall be at least five (5) Business Days after the execution thereof unless otherwise permitted by the Agent, (A) the assignee thereunder shall become a party hereto and, to the extent provided in such Assignment and Acceptance, have the rights and obligations of a Lender hereunder with applicable ~~Loans~~ Commitments as set forth therein and (B) the assigning Lender thereunder shall, to the extent provided in such assignment, be released from its obligations under this Agreement as to that portion of its obligation being so assigned and delegated. The Assignment and Acceptance shall be deemed to amend this Agreement to the extent, and only to the extent, necessary to reflect the addition of the assignee as a Lender and the resulting ~~adjustment~~ adjustments of ~~Loans~~ the Commitments arising from the purchase by and delegation to such assignee ~~of all or a portion~~ of the rights and obligations of such assigning Lender under this Agreement. (iv) The Agent, on behalf of the Borrower, shall maintain at the address of the Agent referred to in Section 13.03 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 Commitments ~~of,~~ of and principal amounts of the Loans owing to, and any Notes evidencing the Loans owned by, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, the 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; provided that in the case of an assignment by a Lender to any Related Lender Party that is not reflected on the Register, the assigning Lender shall maintain a comparable register on behalf of the Agent. 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. (v) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and the assignee together with the Note or ~~Notes, if any,~~ Notes subject to such assignment (or a standard indemnity letter from the respective assigning Lender in respect of any lost Note or Notes) and payment by the assigning Lender or the assignee to the Agent of registration and processing fees of $3,500 in the aggregate (except with respect to assignments (A) to any Related Lender Party or another Lender or (B) by the Agent, ~~the Syndication Agent or the Documentation Agent,~~ in ~~their capacities~~ its capacity as ~~Lenders~~Lender), the Agent shall promptly accept such Assignment and Acceptance and record the information contained therein in the Register and give notice of such acceptance and recordation to the Lenders and the Borrower. Such Assignment and Acceptance and the assignment evidenced thereby shall only be effective upon appropriate entries with respect to the information contained therein being made in the Register pursuant to subparagraph (iv) above. (vi) Within five (5) Business Days after receipt of such notice, the Borrower ~~shall, if requested by the assignee Lender,~~ shall execute and deliver to the Agent in exchange for evidence of the delivery to the Agent of a copy of each such surrendered Note, marked "Superseded", ," one or more new Notes payable to the order of such assignee in an amount equal to the portion of the applicable Commitment assumed and/or Loans purchased by such assignee pursuant to such Assignment and Acceptance and a new Note payable to the order of the assigning Lender in an amount equal to the portion of the applicable ~~Commitment(s)~~ Commitments and/or Loans retained by it hereunder. Such new Notes shall be dated the effective date of such Assignment and Acceptance and shall otherwise be in substantially the form provided in ~~Sections 1.01, 1.03, 1.04 or 1.04A as applicable~~Section 1. 01. Copies of the superseded Notes shall be delivered to the Borrower upon execution and delivery of such new Notes and the original superseded Notes shall be returned to the assignors thereof. (vii) Each Lender may sell participations in all or a portion of its rights and obligations under this Agreement (including, without limitation, all or a portion of its Commitment and the Notes held by it); provided, however, that, no Lender shall transfer or grant any participation under which the participant shall have rights to approve any amendment to or waiver of this Agreement or any other Loan Document, except to the extent such amendment or waiver would (A) extend the final scheduled maturity of any Loan or Note in which such participant is participating, or reduce the rate or extend the time of payment of interest or fees thereon (except in connection with a waiver of applicability of any post-default increase in interest rates) or reduce the principal amount thereof, or increase the amount of the participant's participation over the amount thereof, or increase the amount of the participant's participation over the amount thereof then in effect (it being understood that no waiver or modification of any condition precedent, covenant or Default or of any mandatory reduction in the aggregate Commitments shall constitute a change in the terms of such participation, that an increase in any Commitment or Loan shall be permitted without the consent of any participant if the participant's participation is not increased as a result thereof and that any amendment or modification to the financial definitions in this Agreement shall not constitute a reduction in any rate of interest or fees for purposes of this clause (A)), (B) consent to the assignment or transfer by the Borrower of any of its rights and obligations under this Agreement or (C) release any of the Equity Securities of PM&C or all or substantially all of the other Collateral under all of the Security Documents (except as expressly provided in the Security Documents) supporting the Loans hereunder in which such participant is ~~participating or (D) eliminate the rights set forth in Section 1.21~~participating. In the case of any such participation, the participant shall not have any rights under this Agreement or any of the other Loan Documents (the participant's rights against such Lender in respect of such participation to be those set forth in the agreement executed by such Lender in favor of the participant relating thereto) and all amounts payable by the Borrower hereunder shall be determined as if such Lender had not sold such participation. (viii) Except for an assignment made to (i) another Lender, (ii) a separately organized branch of a ~~Lender,~~ Lender or (iii) a Related Lender ~~Party or (iv) a Qualified Institutional Lender~~Party, and except during the existence of a Default, no assignment referred to above shall be permitted without the prior written consent of the Agent and the Borrower, which consent shall not be unreasonably withheld or delayed. (ix) If DBS Investors, LLC intends to assign or grant a participation in all or a portion of its Loan, or if Pegasus Partners II, L.P. intends to assign any portion of its membership interests in DBS Investors, LLC, or if DBS Investors, LLC intends to issue any membership interests to any Person other than Pegasus Partners II, L.P., such that after giving effect to any such assignment, participation or issuance, DBS Investors, LLC and its Affiliates would own, directly or indirectly, less than a majority of the aggregate outstanding principal amount of the Loans and unutilized Commitments (it being understood that for purposes of this clause (ix) only, DBS Investors, LLC shall be deemed to own only that portion of the Loans and Commitments held by DBS Investors, LLC which is equal to the ownership interest of Pegasus Partners II, L.P. and its Affiliates in DBS Investors, LLC at such time), then, prior to any such assignment, participation or issuance, DBS Investors, LLC will provide the Borrower with at least three (3) Business Days prior notice to afford the Borrower an opportunity to introduce DBS Investors, LLC to prospective assignees or participants of such Loans or prospective assignees or purchasers of such membership interests. (x) In the event Avenue Special Situations Fund II, LP or its Affiliates (collectively, "Avenue") refuse to consent to any amendment, waiver or other modification of any Loan Document requested by the Borrower that requires the consent of Avenue pursuant to clause (ii) of the definition of Required Lenders and such amendment, waiver or other modification has previously been consented to by Lenders, excluding Defaulting Lenders, holding more than fifty percent (50%) of the aggregate outstanding principal amount of the Loans and unutilized Commitments, the Borrower shall have the right, at its sole expense and effort, so long as no Event of Default then exists, to replace Avenue with one or more new lenders (each, a "New Lender") reasonably acceptable to the Agent, provided that: (A) at the time of any replacement pursuant to this paragraph, the New Lender shall enter into one or more Assignment and Acceptances pursuant to paragraph (b) of Article XII (with all fees payable pursuant to such paragraph (b) to be paid by the Borrower or the New Lender), pursuant to which the New Lender shall acquire the Commitment and outstanding Loans of Avenue, and in connection therewith (i) the New Lender shall pay to Avenue an amount equal to the principal amount of, and all accrued interest on, all outstanding Loans of Avenue and (ii) the Borrower shall pay to Avenue an amount equal to the difference (if any) between the Fixed Early Payment Amount and the principal amount of all outstanding Loans of Avenue; and (B) all obligations of the Borrower owing to Avenue under the Loan Documents (other than those expressly described in the preceding subparagraph (A) in respect of which the assignment purchase price has been, or is concurrently being, paid) shall be paid in full to Avenue by the Borrower concurrently with such replacement. Upon the execution of the respective Assignment and Acceptance, the payment of the amounts referred to in subparagraphs (A) and (B) above and delivery to the New Lender of the appropriate replacement Notes executed by the Borrower, the New Lender shall become a Lender hereunder and Avenue shall cease to constitute a Lender hereunder, except with respect to indemnification provisions applicable to Avenue under this Agreement, which shall survive as to Avenue. (xi) The Borrower may not assign any of its rights or delegate any of its duties or obligations hereunder. (x) To the extent that an assignment of all or any portion of a Lender's Commitment and outstanding Loans pursuant to subsection (b) of Article XI or this Article XII would, due to circumstances existing at the time of such assignment, result in costs under Sections 1.11, 1.13 or 1.14 which are increased from those being charged by the respective assigning Lender prior to such assignment, then the Borrower shall not be obligated to pay such increased costs (although the Borrower shall be obligated to pay any other increased costs of the type described above resulting from changes after the date of the respective assignment). (xixii) Any Lender may, in connection with any assignment or participation pursuant to this Section, disclose to the assignee or participant any information relating to the Companies ~~and the Parent Affiliates~~ furnished to such Lender by or on behalf of the Borrower and such assignee or participant shall treat such information as confidential. Notwithstanding anything herein to the contrary, any party to this Agreement (and each employee, representative, or other agent of any party to this Agreement) may disclose to any and all persons, without limitation of any kind, the tax treatment and tax structure of the transactions contemplated by this Agreement, and all materials of any kind (including opinions or other tax analyses) related to such tax treatment and tax structure; provided, that this sentence shall not permit any person to disclose the name of, or other information that would identify, any party to such transactions or to disclose confidential commercial information regarding such transactions.

Appears in 1 contract

Samples: Term Loan Agreement (Pegasus Satellite Communications Inc)

Benefit of Agreement Assignments and Participations. (a) This Agreement shall be binding upon and inure to the benefit of and be enforceable by the ~~Borrower, the Lenders and the Agent and their~~ respective successors and ~~permitted assigns, and all subsequent holders~~ assigns of the parties hereto; provided that the Borrower may not assign or transfer any of its interest hereunder without the ~~Notes or any portion thereof~~prior written consent of the Lenders. (b) Any Lender may make, carry or transfer Loans at, to or for the account of, any of its branch offices or the office of an Affiliate of such Lender except to the extent such transfer would result in increased costs to the Borrower. (c) Each Lender may assign (with the consent of the Administrative Agent, if such proposed assignment is not to an existing Lender or an Affiliate of an existing Lender, such consent not to be unreasonably withheld, conditioned or delayed, after consultation with the Borrower) to one or more banks or other entities all or a portion of its rights and ~~interests~~ obligations under this Agreement, the Notes and the ~~Security Documents and/or delegate its obligations hereunder and thereunder, in whole or in part, and sell participations in the Notes and the Security Documents as security therefor,~~ Letters of Credit; provided ~~as follows:~~ that (i) ~~Any~~ no such ~~assignment, other~~ assignment shall be for less than ~~an assignment in whole, made other than to (A) another Lender, (B) a separately organized branch of a Lender or (C) a Related Lender Party, shall reflect an assignment~~ $5,000,000 of such ~~assigning~~ Lender's ~~Notes~~ Commitments or Loans, as the case may be, and ~~Commitments which is in an aggregate principal amount of at least $500,000, unless each of the Borrower and the Agent otherwise consents to a lesser amount.~~ (ii) ~~Notwithstanding any provision~~ each assignment shall be of ~~this Agreement to the contrary, (A) each Lender may at any time pledge all or any~~ a pro rata portion of ~~its rights under this Agreement and each of the other Loan Documents, including without limitation its Loans and the Notes held by~~ such Lender~~, to a Federal Reserve Bank (~~'s Commitments or equivalent thereof in the case of Lenders chartered outside of the United States) in support of borrowings made by such Lender from such Federal Reserve Bank and (B) any Lender that is a fund or similar investment vehicle that invests in or makes commercial loans may, without the consent of the Agent or the Borrower, pledge all or any portion of its Notes or Loans to any holders of obligations owed, or securities issued, by such Person, as security for such obligations or securities, or to any trustee for, or any other representative of, such holders; provided that any foreclosure or similar action by such trustee shall be subject to the provisions of this Section concerning assignments. No pledge pursuant to this subsection (ii) shall release the transferor Lender from any of its obligations and liabilities under the Loan Documents. (iii) Any assignments and/or delegations made hereunder shall be pursuant to an instrument of assignment and acceptance (the "Assignment and Acceptance") substantially in the form of Schedule 12 and the parties to each such assignment shall execute and deliver to the Agent for its acceptance the Assignment and Acceptance together with any Note or Notes subject theretoLoans. Upon such ~~execution~~ execution, delivery and ~~delivery~~acceptance, from and after the effective date ~~specified in each~~ (the "Effective Date") of such Assignment and ~~Acceptance, which effective date shall be at least five~~ Acceptance (~~5) Business Days after the execution thereof unless otherwise permitted by the Agent, (A~~x) the assignee thereunder shall ~~become~~ be a party ~~hereto~~ hereto, and, to the extent ~~provided in~~ that rights and obligations hereunder have been assigned to and assumed by it pursuant to such Assignment and Acceptance, such assignee shall have the rights and obligations of a Lender hereunder ~~with applicable Loans as set forth therein~~ and (By) the ~~assigning~~ Lender assignor thereunder shall, to the extent ~~provided in~~ that rights and obligations hereunder have been assigned by it pursuant to such ~~assignment~~Assignment and Acceptance, relinquish its rights and be released from its obligations under this Agreement ~~as to that portion~~ (and, in the case of ~~its obligation being so assigned and delegated. The~~ an Assignment and Acceptance shall be deemed to amend this Agreement to the extent, and only to the extent, necessary to reflect the addition of the assignee as a Lender and the resulting adjustment of Loans arising from the purchase by and delegation to such assignee of covering all or a the remaining portion of ~~the~~ an assigning Lender's rights and obligations under this Agreement, such Lender shall cease to be a party hereto). (d) By executing and delivering an Assignment and Acceptance, the assignee thereunder confirms and agrees as follows: (i) other than as provided in such Assignment and Acceptance, the assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement, the Notes, the Letters of Credit or any other instrument or document furnished pursuant hereto, (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of the Borrower or 113 any other Credit Party or OPMW Credit Party or the performance or observance by the Borrower or any other Credit Party or OPMW Credit Party of any of its obligations under this Agreement. , any other Financing Document or Transaction Document or any other instrument or document furnished pursuant hereto or thereto, (iviii) ~~The Agent~~such assignee confirms that it has received a copy of this Agreement, ~~on behalf~~ together with copies of the ~~Borrower, shall maintain at the address of the Agent~~ financial statements referred to in Section ~~13.03~~ 5.10 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, (iv) such assignee will, independently and without reliance upon the Lead Arrangers, the Agents, the Issuing Bank, such assigning Lender or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (v) such assignee appoints and authorizes the Administrative Agent to take such action as agent on its behalf and to exercise such powers under this Agreement and the other Financing Documents as are delegated to the Administrative Agent by the terms hereof, together with such powers as are reasonably incidental thereto and (vi) such assignee agrees that it will perform in accordance with their terms all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender. (e) The Administrative Agent shall maintain at its address referred to in Section 9.01 a copy of each Assignment and Acceptance delivered to and accepted by it and a register ~~(the "Register")~~ for the recordation of the names and addresses of the Lenders and the Commitments of, and principal ~~amounts~~ amount of the Loans owing to, ~~and any Notes evidencing the Loans owned by,~~ each Lender from time to ~~time~~time (the "Register"). The entries in the Register shall be ~~conclusive~~conclusive and binding for all purposes, ~~in the absence of~~ absent manifest error, and the ~~Borrower, the Agent~~ Borrower and ~~the Lenders shall~~ each Secured Party may treat each Person whose name is recorded in the Register as ~~the owner of~~ a ~~Loan or other obligation~~ Lender 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; provided that in the case of an assignment by a Lender to any Related Lender Party that is not reflected on the Register, the assigning Lender shall maintain a comparable register on behalf of the AgentAgreement. The Register and copies of each Assignment and Acceptance shall be available for inspection by the ~~Borrower~~ Borrower, the Issuing Bank or any Lender at any reasonable time and from time to time upon reasonable prior notice. (vf) Upon its receipt of an Assignment and Acceptance executed by an assigning ~~Lender and the assignee~~ Lender, together with the Note or ~~Notes, if any,~~ Notes subject to such assignment (or a standard indemnity letter from the respective assigning Lender in respect of any lost Note or Notes) and payment by the assigning Lender or the assignee to the Agent of registration and processing fees of $3,500 in the aggregate (except with respect to assignments (A) to any Related Lender Party or another Lender or (B) by the Agentassignment, the ~~Syndication~~ Administrative Agent or shall, if such Assignment and Acceptance has been completed and is in substantially the ~~Documentation Agent~~form of Exhibit O hereto, ~~in their capacities as Lenders), the Agent shall promptly~~ (i) accept such Assignment and ~~Acceptance and~~ Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice ~~of such acceptance and recordation~~ thereof to the ~~Lenders~~ Issuing Bank and the Borrower. Such Assignment and Acceptance and the assignment evidenced thereby shall only be effective upon appropriate entries with respect to the information contained therein being made in the Register pursuant to subparagraph (iv) above. (vi) Within five (5) Business Days after its receipt of such notice, the Borrower ~~shall, if requested by the assignee Lender,~~ shall execute and deliver to the Administrative Agent in exchange for ~~evidence of~~ the ~~delivery to the Agent of~~ surrendered Note or Notes a ~~copy of each such surrendered Note, marked "Superseded", one~~ new Note or ~~more new~~ Notes ~~payable~~ to the order of such assignee in an amount equal to the ~~portion of the applicable~~ Commitment or Commitments assumed ~~and/or Loans purchased~~ by ~~such assignee~~ it pursuant to such Assignment and Acceptance ~~and~~ and, if the assigning Lender has retained a Commitment or Commitments hereunder, a new Note ~~payable~~ or Notes to the order of the assigning Lender in an amount equal to the ~~portion of the applicable Commitment(s) and/or Loans~~ Commitment or Commitments retained by it hereunder. Such new Note or Notes shall re-evidence the indebtedness outstanding under the old Notes or Notes and shall be in an aggregate principal amount equal to the aggregate principal amount of such surrendered Note or Notes, shall be dated the effective date of such Assignment and Acceptance and shall otherwise be in substantially the form ~~provided in Sections 1.01, 1.03, 1.04 or 1.04A as applicable. Copies~~ of the ~~superseded~~ Note or Notes ~~shall be delivered~~ subject to ~~the Borrower upon execution and delivery of~~ such ~~new Notes and the original superseded Notes shall be returned to the assignors thereof~~assignments. (~~vii~~g) Each Lender may sell participations (without the consent of the Administrative Agent, the Issuing Bank, the Borrower or any other Lender) to one or more parties in or to all or a portion of its rights and obligations under this Agreement (including, without limitation, all or a portion of its Commitment, the Loans owing to it and the Note or Notes held by it and the participations in the Letters of Credit held by it); ~~provided~~provided that (i) such Lender's obligations under this Agreement (including, ~~however~~without limitation, ~~that~~its Commitment) shall remain unchanged, no (ii) such Lender shall ~~transfer~~ remain solely responsible to other parties hereto for the performance of such obligations, (iii) such Lender shall remain the holder of any such Note for all purposes of this Agreement, (iv) the Borrower, the Administrative Agent, the Issuing Bank and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender's rights and obligations under this Agreement and (v) such Lender shall not transfer, grant, assign or ~~grant~~ sell any participation under which the participant shall have rights to approve any amendment to or waiver of this Agreement ~~or any other Loan Document,~~ except to the extent such amendment or waiver would (A) extend the final ~~scheduled~~ maturity date or the date for the payments of any ~~Loan~~ installment of fees or ~~Note~~ principal or interest of any Loans in which such participant is participating, or (B) reduce the rate or extend the time of payment of interest or fees thereon (except in connection with a waiver of applicability of any post-default increase in interest rates) or reduce the principal amount thereof, or increase the amount of any installment of principal of the ~~participant's participation over~~ Loans in which such participant is participating, (C) reduce the ~~amount thereof~~interest rate applicable to the Loans in which such participant is participating, (D) reduce any fees payable hereunder, or ~~increase the amount of the participant's participation over the amount thereof then in effect~~ (it being understood that no waiver or modification of any condition precedent, covenant or Default or of any mandatory reduction in the aggregate Commitments shall constitute a change in the terms of such participation, that an increase in any Commitment or Loan shall be permitted without the consent of any participant if the participant's participation is not increased as a result thereof and that any amendment or modification to the financial definitions in this Agreement shall not constitute a reduction in any rate of interest or fees for purposes of this clause (A)), (B) consent to the assignment or transfer by the Borrower of any of its rights and obligations under this Agreement or (CE) release all or substantially all of the Collateral under all of the Security Documents (except as expressly provided in the Security Documents) supporting the Loans hereunder in which such participant is participating or (D) eliminate the rights set forth in Section 1.21. In the case of any such participation, the participant shall not have any rights under this Agreement or any of the other Loan Documents (the participant's rights against such Lender in respect of such participation to be those set forth in the agreement executed by such Lender in favor of the participant relating thereto) and all amounts payable by the Borrower hereunder shall be determined as if such Lender had not sold such participationCollateral. (~~viii~~h) ~~Except for an assignment made to (i) another Lender~~Each Lender agrees that, (ii) a separately organized branch of a Lender, (iii) a Related Lender Party or (iv) a Qualified Institutional Lender, and except during the existence of a Default, no assignment referred to above shall be permitted without the prior written consent of the ~~Agent~~ Borrower and the ~~Borrower~~Administrative Agent, ~~which consent shall~~ it will not ~~be unreasonably withheld~~ make any assignment hereunder in any manner or ~~delayed~~under any circumstances that would require registration or qualification of, or filings in respect of, any Loan, Note or other Obligation under the securities laws of the United States of America or of any state. (ixi) ~~The Borrower~~ Any Lender may ~~not~~ at any time assign all or any portion of its rights ~~or delegate~~ under this Agreement and the other Financing Documents to the Federal Reserve Bank of the United States; provided, that any payment in respect of such assigned rights made by the Borrower to the assigning Lender in accordance with the terms of this Agreement shall satisfy the Borrower's obligations hereunder in respect of such assigned rights to the extent of such payment. No such assignment shall release the assignor Lender from its ~~duties or~~ obligations hereunder. (xj) To After the extent that an assignment of all or any portion of a Lender's Commitment and outstanding Loans pursuant to subsection (b) of Article XI or this Article XII would, due to circumstances existing at the time of such assignment, result in costs under Sections 1.11, 1.13 or 1.14 which are increased from those being charged by the respective assigning Lender prior to such assignment, then the Borrower shall not be obligated to pay such increased costs (although the Borrower shall be obligated to pay any other increased costs completion of the ~~type described above resulting from changes after the date~~ primary and general syndication of the ~~respective assignment). (xi) Any~~ Loans described herein, each transferor Lender ~~may, in connection with any~~ shall pay the Administrative Agent a fee of $3,500.00 for processing each assignment ~~or participation~~ made pursuant to this Section, disclose to the assignee or participant any information relating to the Companies and the Parent Affiliates furnished to such Lender by or on behalf of the Borrower and such assignee or participant shall treat such information as confidentialSection 9.06.

Appears in 1 contract

Samples: Credit Agreement (Orion Power Holdings Inc)

Benefit of Agreement Assignments and Participations. (a) This Agreement shall be binding upon and inure to the benefit of the Borrower, the Lenders and the ~~Agent~~ Agents and their respective successors and ~~permitted~~ assigns, and all subsequent holders of any of the Notes or any portion thereof. (b) Each Lender may assign its rights and interests under this Agreement, the Notes and the Security Documents and/or delegate its obligations hereunder and thereunder, in whole or in part, and sell participations in the Notes and the Security Documents as security therefor, ~~provided~~ PROVIDED as follows: (i) Any such ~~assignment, other than an~~ assignment ~~in whole,~~ made other than to ~~(A) another Lender, (B)~~ a separately organized ~~branch of~~ branch, or an Affiliate of, a Lender ~~or (C) a Related Lender Party,~~ shall reflect an assignment of such assigning Lender's Notes and Commitments which is in an aggregate principal amount of at least $~~500,000~~5,000,000, ~~unless each~~ and if greater, an integral multiple of ~~the Borrower and the Agent otherwise consents to a lesser amount~~$1,000,000. (ii) Notwithstanding any provision of this Agreement to the contrary, ~~(A)~~ each Lender may at any time ~~pledge~~ assign all or any portion of its rights under this Agreement and each of the other Loan Documents, ~~including~~ including, without ~~limitation its Loans and~~ limitation, the Notes held by such Lender, to a Federal Reserve Bank (or equivalent thereof in the case of Lenders chartered outside of the United States) in support of borrowings made by such Lender from such Federal Reserve Bank and (B) any Lender that is a fund or similar investment vehicle that invests in or makes commercial loans may, without the consent of the Agent or the Borrower, pledge all or any portion of its Notes or Loans to any holders of obligations owed, or securities issued, by such Person, as security for such obligations or securities, or to any trustee for, or any other representative of, such holders); provided that ~~any foreclosure or similar action by~~ no such ~~trustee shall be subject to the provisions of this Section concerning assignments. No pledge pursuant to this subsection (ii)~~ assignment shall release ~~the transferor~~ a Lender from any of its obligations and liabilities under the Loan Documents. Any Federal Reserve Bank (or equivalent thereof) which receives such an assignment from any Lender may make further assignments of such rights in accordance with the provisions of this Section. (iii) Any assignments and/or delegations made hereunder shall be pursuant to an instrument of assignment and acceptance (the "~~Assignment and Acceptance~~ASSIGNMENT AND ACCEPTANCE") substantially in the form of ~~Schedule 12~~ SCHEDULE 13(B)(III) and the parties to each such assignment shall execute and deliver to the Documentation Agent for its acceptance the Assignment and Acceptance together with any Note or Notes subject thereto. Upon such execution and delivery, from and after the effective date specified in each Assignment and Acceptance, which effective date shall be at least five (5) Business Days after the execution ~~thereof unless otherwise permitted by the Agent~~thereof, (A) the assignee thereunder shall become a party hereto and, to the extent provided in such Assignment and Acceptance, have the rights and obligations of a Lender hereunder with applicable ~~Loans~~ Commitments as set forth therein and (B) the assigning Lender thereunder shall, to the extent provided in such assignment, be released from its obligations under this Agreement as to that portion of its obligation being so assigned and delegated. The Assignment and Acceptance shall be deemed to amend this Agreement to the extent, and only to the extent, necessary to reflect the addition of the assignee as a Lender and the resulting adjustment of ~~Loans~~ Commitments arising from the purchase by and delegation to such assignee of all or a portion of the rights and obligations of such assigning Lender under this Agreement. (iv) The Agent, on behalf of the Borrower, shall maintain at the address of the Agent referred to in Section 13.03 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 Commitments of, and principal amounts of the Loans owing to, and any Notes evidencing the Loans owned by, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, the 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; provided that in the case of an assignment by a Lender to any Related Lender Party that is not reflected on the Register, the assigning Lender shall maintain a comparable register on behalf of the Agent. 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. (v) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and the assignee together with the Note or ~~Notes, if any,~~ Notes subject to such assignment ~~(or a standard indemnity letter from the respective assigning Lender in respect of any lost Note or Notes)~~ and payment by the ~~assigning Lender or the~~ assignee to the Documentation Agent of a registration and processing ~~fees~~ fee of $~~3,500 in the aggregate (except with respect to assignments (A) to any Related Lender Party or another Lender or (B) by the Agent~~3,000, the ~~Syndication~~ Documentation Agent or shall accept such Assignment and Acceptance. Promptly upon delivering such Assignment and Acceptance to the Documentation Agent, ~~in their capacities as Lenders),~~ the ~~Agent~~ assigning Lender shall ~~promptly accept such~~ give notice thereof to the Borrower pursuant to a Notice of Assignment and Acceptance ~~and record the information contained therein~~ substantially in the ~~Register~~ form of SCHEDULE 13(B)(IV) and ~~give notice of such acceptance and recordation~~ addressed to the ~~Lenders~~ Borrower and the ~~Borrower~~Documentation Agent. Such Assignment and Acceptance and the assignment evidenced thereby shall only be effective upon appropriate entries with respect to the information contained therein being made in the Register pursuant to subparagraph (iv) above. (vi) Within five (5) Business Days after receipt of such notice, the Borrower ~~shall, if requested by the assignee Lender,~~ shall execute and deliver to the Documentation Agent in exchange for ~~evidence of the delivery to the Agent of a copy of~~ each such surrendered ~~Note, marked "Superseded", one or more~~ Note a new ~~Notes~~ Note payable to the order of such assignee in an amount equal to the portion of the applicable ~~Commitment~~ Commitment(s) assumed ~~and/or Loans purchased~~ by such assignee pursuant to such Assignment and Acceptance and a new Note payable to the order of the assigning Lender in an amount equal to the portion of the applicable Commitment(s) ~~and/or Loans~~ retained by it hereunder. Such new Notes shall be dated the effective date of such Assignment and Acceptance and shall otherwise be in substantially the form provided in ~~Sections 1.01, 1.03, 1.04 or 1.04A as applicable~~SECTION 1. 01. ~~Copies of the superseded~~ Canceled Notes shall be ~~delivered~~ returned to the Borrower upon the execution and delivery of such new ~~Notes and the original superseded Notes shall be returned to the assignors thereof~~Notes. (~~vii~~v) Each Lender may sell participations in all or a portion of its rights and obligations under this Agreement (including, without limitation, all or a portion of its Commitments and the Notes held by it); ~~provided~~PROVIDED, ~~however~~HOWEVER, that, no (A) each such participation shall be in a minimum amount of $5,000,000 (B) the selling Lender shall ~~transfer or grant any participation~~ remain obligated under ~~which the participant shall have rights to approve any amendment to or waiver of~~ this Agreement to the extent as it would if it had not sold such participation, (C) the selling Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (D) at no time shall the selling Lender agree with such participant to take or refrain from taking any action hereunder or under any other Loan Document, except that the selling Lender may agree not to consent, without such participant's consent, to any of the actions referred to in ARTICLE XII, to the extent ~~such amendment or waiver would (A) extend~~ that the final scheduled maturity of any Loan or Note in which such participant is participating, or reduce the rate or extend the time of payment of interest or fees thereon (except in connection with a waiver of applicability of any post-default increase in interest rates) or reduce the principal amount thereof, or increase the amount of the participant's participation over the amount thereof, or increase the amount of the participant's participation over the amount thereof then in effect (it being understood that no waiver or modification of any condition precedent, covenant or Default or of any mandatory reduction in the aggregate Commitments shall constitute a change in the terms of such participation, that an increase in any Commitment or Loan shall be permitted without same require the consent of any participant if the participant's participation is not increased as a result thereof and that any amendment or modification to the financial definitions in this Agreement shall not constitute a reduction in any rate of interest or fees for purposes of this clause (A))each Lender hereunder, (BE) consent to the assignment or transfer by the Borrower of any of its rights and obligations under this Agreement or (C) release all or substantially all of the Collateral under all of the Security Documents (except as expressly provided in the Security Documents) supporting the Loans hereunder in which such participant is participating or (D) eliminate the rights set forth in Section 1.21. In the case of any such participation, the participant shall not have any rights under this Agreement or any of the other Loan Documents (the participant's rights against such Lender in respect of such participation to be those set forth in the agreement executed by such Lender in favor of the participant relating thereto) and all amounts payable by the Borrower hereunder shall be determined as if such Lender had not sold such ~~participation~~participation and no participant shall be entitled to receive any greater amount pursuant to this Agreement than the selling Lender would have been entitled to receive in respect of the amount of the participation transferred by such Lender to such participant had no such transfer occurred, and (F) the Borrower, the Agents and the other Lenders shall continue to deal solely and directly with the selling Lender in connection with such Lender's rights and obligations under this Agreement. (viii) Except for an assignment made to (i) another Lender, (ii) a separately organized branch of a Lender, (iii) a Related Lender Party or (iv) a Qualified Institutional Lender, and except during the existence of a Default, no assignment referred to above shall be permitted without the prior written consent of the Agent and the Borrower, which consent shall not be unreasonably withheld or delayed. (ixvi) The Borrower may not assign any of its rights or delegate any of its duties or obligations hereunder. (x) To the extent that an assignment of all or any portion of a Lender's Commitment and outstanding Loans pursuant to subsection (b) of Article XI or this Article XII would, due to circumstances existing at the time of such assignment, result in costs under Sections 1.11, 1.13 or 1.14 which are increased from those being charged by the respective assigning Lender prior to such assignment, then the Borrower shall not be obligated to pay such increased costs (although the Borrower shall be obligated to pay any other increased costs of the type described above resulting from changes after the date of the respective assignment). (xivii) Any Lender may, in connection with any assignment or participation pursuant to this Section, disclose to the assignee or participant any information relating to the Companies ~~and the Parent Affiliates~~ furnished to such Lender by or on behalf of the Borrower and such assignee or participant shall treat such information as confidential.

Appears in 1 contract

Samples: Credit Agreement (Teletrac Inc /De)

Benefit of Agreement Assignments and Participations. (a) This Agreement shall be binding upon and inure to the benefit of and be enforceable by the ~~Borrower, the Lenders and the Agent and their~~ respective successors and ~~permitted assigns, and all subsequent holders~~ assigns of the parties hereto; provided that the Borrower may not assign or transfer any of its interest hereunder without the ~~Notes or any portion thereof~~prior written consent of the Lenders. (b) Any Lender may make, carry or transfer Loans at, to or for the account of, any of its branch offices or the office of an Affiliate of such Lender except to the extent such transfer would result in increased costs to the Borrower. (c) Each Lender may assign (with the consent of the Administrative Agent, not to be unreasonably withheld, conditioned or delayed, if such proposed assignment is not to an existing Lender or an Affiliate of an existing Lender, after consultation with the Borrower) to one or more banks or other entities all or a portion of its rights and ~~interests~~ obligations under this Agreement, the Notes and the Security Documents and/or delegate its obligations hereunder and thereunder, in whole or in part, and sell participations in the Notes and the Security Documents as security therefor, provided as follows: (i) Any such assignment, other than an assignment in whole, made other than to (A) another Lender, (B) a separately organized branch Letters of a Lender or (C) a Related Lender Party, shall reflect an assignment of such assigning Lender's Notes and Commitments which is in an aggregate principal amount of at least $500,000, unless each of the Borrower and the Agent otherwise consents to a lesser amount. (ii) Notwithstanding any provision of this Agreement to the contrary, (A) each Lender may at any time pledge all or any portion of its rights under this Agreement and each of the other Loan Documents, including without limitation its Loans and the Notes held by such Lender, to a Federal Reserve Bank (or equivalent thereof in the case of Lenders chartered outside of the United States) in support of borrowings made by such Lender from such Federal Reserve Bank and (B) any Lender Credit; PROVIDED that is a fund or similar investment vehicle that invests in or makes commercial loans may, without the consent of the Agent or the Borrower, pledge all or any portion of its Notes or Loans to any holders of obligations owed, or securities issued, by such Person, as security for such obligations or securities, or to any trustee for, or any other representative of, such holders; provided that any foreclosure or similar action by such trustee shall be subject to the provisions of this Section concerning assignments. No pledge pursuant to this subsection (ii) shall release the transferor Lender from any of its obligations and liabilities under the Loan Documents. (iii) Any assignments and/or delegations made hereunder shall be pursuant to an instrument of assignment and acceptance (the "Assignment and Acceptance") substantially in the form of Schedule 12 and the parties to each no such assignment shall ~~execute and deliver to~~ be for less than $5,000,000 of such Lender's Commitments or Loans, as the ~~Agent for its acceptance the Assignment and Acceptance together with any Note or Notes subject thereto~~case may be. Upon such ~~execution~~ execution, delivery and ~~delivery~~acceptance, from and after the effective date ~~specified in each~~ (the "EFFECTIVE DATE") of such Assignment and ~~Acceptance, which effective date shall be at least five~~ Acceptance (~~5) Business Days after the execution thereof unless otherwise permitted by the Agent, (A~~x) the assignee thereunder shall ~~become~~ be a party ~~hereto~~ hereto, and, to the extent ~~provided in~~ that rights and obligations hereunder have been assigned to and assumed by it pursuant to such Assignment and Acceptance, such assignee shall have the rights and obligations of a Lender hereunder ~~with applicable Loans as set forth therein~~ and (By) the ~~assigning~~ Lender assignor thereunder shall, to the extent ~~provided in~~ that rights and obligations hereunder have been assigned by it pursuant to such ~~assignment~~Assignment and Acceptance, relinquish its rights and be released from its obligations under this Agreement ~~as to that portion~~ (and, in the case of ~~its obligation being so assigned and delegated. The~~ an Assignment and Acceptance shall be deemed to amend this Agreement to the extent, and only to the extent, necessary to reflect the addition of the assignee as a Lender and the resulting adjustment of Loans arising from the purchase by and delegation to such assignee of covering all or a the remaining portion of ~~the~~ an assigning Lender's rights and obligations under this Agreement, such Lender shall cease to be a party hereto). (d) By executing and delivering an Assignment and Acceptance, the assignee thereunder confirms and agrees as follows: (i) other than as provided in such Assignment and Acceptance, the assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement, the Notes, the Letters of Credit or any other instrument or document furnished pursuant hereto, (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of the Borrower or any other Credit Party or the performance or observance by the Borrower or any other Credit Party of any of its obligations under this Agreement. , any other Financing Document or Transaction Document or any other instrument or document furnished pursuant hereto or thereto, (iviii) ~~The Agent~~such assignee confirms that it has received a copy of this Agreement, ~~on behalf~~ together with copies of the ~~Borrower, shall maintain at the address of the Agent~~ financial statements referred to in Section ~~13.03~~ 5.10 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, (iv) such assignee will, independently and without reliance upon the Arrangers, the Agents, the Administrative Agent, the Issuing Bank, such assigning Lender or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (v) such assignee appoints and authorizes the Administrative Agent to take such action as agent on its behalf and to exercise such powers under this Agreement and the other Financing Documents as are delegated to the Administrative Agent by the terms hereof, together with such powers as are reasonably incidental thereto and (vi) such assignee agrees that it will perform in accordance with their terms all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender. (e) The Administrative Agent shall maintain at its address referred to in Section 9.01 a copy of each Assignment and Acceptance delivered to and accepted by it and a register ~~(the "Register")~~ for the recordation of the names and addresses of the Lenders and the Commitments of, and principal ~~amounts~~ amount of the Loans owing to, ~~and any Notes evidencing the Loans owned by,~~ each Lender from time to ~~time~~time (the "REGISTER"). The entries in the Register shall be ~~conclusive~~conclusive and binding for all purposes, ~~in the absence of~~ absent manifest error, and the ~~Borrower, the Agent~~ Borrower and ~~the Lenders shall~~ each Secured Party may treat each Person whose name is recorded in the Register as ~~the owner of~~ a ~~Loan or other obligation~~ Lender 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; provided that in the case of an assignment by a Lender to any Related Lender Party that is not reflected on the Register, the assigning Lender shall maintain a comparable register on behalf of the AgentAgreement. The Register and copies of each Assignment and Acceptance shall be available for inspection by the ~~Borrower~~ Borrower, the Issuing Bank or any Lender at any reasonable time and from time to time upon reasonable prior notice. (vf) Upon its receipt of an Assignment and Acceptance executed by an assigning ~~Lender and the assignee~~ Lender, together with the Note or ~~Notes, if any,~~ Notes subject to such assignment (or a standard indemnity letter from the respective assigning Lender in respect of any lost Note or Notes) and payment by the assigning Lender or the assignee to the Agent of registration and processing fees of $3,500 in the aggregate (except with respect to assignments (A) to any Related Lender Party or another Lender or (B) by the Agentassignment, the ~~Syndication~~ Administrative Agent or shall, if such Assignment and Acceptance has been completed and is in substantially the ~~Documentation Agent~~form of EXHIBIT K hereto, ~~in their capacities as Lenders), the Agent shall promptly~~ (i) accept such Assignment and ~~Acceptance and~~ Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice ~~of such acceptance and recordation~~ thereof to the ~~Lenders~~ Issuing Bank and the Borrower. Such Assignment and Acceptance and the assignment evidenced thereby shall only be effective upon appropriate entries with respect to the information contained therein being made in the Register pursuant to subparagraph (iv) above. (vi) Within five (5) Business Days after its receipt of such notice, the Borrower ~~shall, if requested by the assignee Lender,~~ shall execute and deliver to the Administrative Agent in exchange for ~~evidence of~~ the ~~delivery to the Agent of~~ surrendered Note or Notes a ~~copy of each such surrendered Note, marked "Superseded", one~~ new Note or ~~more new~~ Notes ~~payable~~ to the order of such assignee in an amount equal to the ~~portion of the applicable~~ Commitment or Commitments assumed ~~and/or Loans purchased~~ by ~~such assignee~~ it pursuant to such Assignment and Acceptance ~~and~~ and, if the assigning Lender has retained a Commitment or Commitments hereunder, a new Note ~~payable~~ or Notes to the order of the assigning Lender in an amount equal to the ~~portion of the applicable Commitment(s) and/or Loans~~ Commitment or Commitments retained by it hereunder. Such new Note or Notes shall re-evidence the indebtedness outstanding under the old Notes or Notes and shall be in an aggregate principal amount equal to the aggregate principal amount of such surrendered Note or Notes, shall be dated the effective date of such Assignment and Acceptance and shall otherwise be in substantially the form ~~provided in Sections 1.01, 1.03, 1.04 or 1.04A as applicable. Copies~~ of the ~~superseded~~ Note or Notes ~~shall be delivered~~ subject to ~~the Borrower upon execution and delivery of~~ such ~~new Notes and the original superseded Notes shall be returned to the assignors thereof~~assignments. (~~vii~~g) Each Lender may sell participations (without the consent of the Administrative Agent, the Issuing Bank, the Borrower or any other Lender) to one or more parties in or to all or a portion of its rights and obligations under this Agreement (including, without limitation, all or a portion of its Commitment, the Loans owing to it and the Note or Notes held by it and the participations in the Letters of Credit held by it); ~~provided~~provided that (i) such Lender's obligations under this Agreement (including, ~~however~~without limitation, ~~that~~its Commitment) shall remain unchanged, no (ii) such Lender shall ~~transfer~~ remain solely responsible to other parties hereto for the performance of such obligations, (iii) such Lender shall remain the holder of any such Note for all purposes of this Agreement, (iv) the Borrower, the Administrative Agent, the Issuing Bank and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender's rights and obligations under this Agreement and (v) such Lender shall not transfer, grant, assign or ~~grant~~ sell any participation under which the participant shall have rights to approve any amendment to or waiver of this Agreement ~~or any other Loan Document,~~ except to the extent such amendment or waiver would (A) extend the final ~~scheduled~~ maturity date or the date for the payments of any ~~Loan~~ installment of fees or ~~Note~~ principal or interest of any Loans in which such participant is participating, or (B) reduce the rate or extend the time of payment of interest or fees thereon (except in connection with a waiver of applicability of any post-default increase in interest rates) or reduce the principal amount thereof, or increase the amount of any installment of principal of the ~~participant's participation over~~ Loans in which such participant is participating, (C) reduce the ~~amount thereof~~interest rate applicable to the Loans in which such participant is participating, (D) reduce any fees payable hereunder, or ~~increase the amount of the participant's participation over the amount thereof then in effect~~ (it being understood that no waiver or modification of any condition precedent, covenant or Default or of any mandatory reduction in the aggregate Commitments shall constitute a change in the terms of such participation, that an increase in any Commitment or Loan shall be permitted without the consent of any participant if the participant's participation is not increased as a result thereof and that any amendment or modification to the financial definitions in this Agreement shall not constitute a reduction in any rate of interest or fees for purposes of this clause (A)), (B) consent to the assignment or transfer by the Borrower of any of its rights and obligations under this Agreement or (CE) release all or substantially all of the Collateral under all of the Security Documents (except as expressly provided in the Security Documents) supporting the Loans hereunder in which such participant is participating or (D) eliminate the rights set forth in Section 1.21. In the case of any such participation, the participant shall not have any rights under this Agreement or any of the other Loan Documents (the participant's rights against such Lender in respect of such participation to be those set forth in the agreement executed by such Lender in favor of the participant relating thereto) and all amounts payable by the Borrower hereunder shall be determined as if such Lender had not sold such participationCollateral. (~~viii~~h) ~~Except for an assignment made to (i) another Lender~~Each Lender agrees that, (ii) a separately organized branch of a Lender, (iii) a Related Lender Party or (iv) a Qualified Institutional Lender, and except during the existence of a Default, no assignment referred to above shall be permitted without the prior written consent of the ~~Agent~~ Borrower and the ~~Borrower~~Administrative Agent, ~~which consent shall~~ it will not ~~be unreasonably withheld~~ make any assignment hereunder in any manner or ~~delayed~~under any circumstances that would require registration or qualification of, or filings in respect of, any Loan, Note or other Obligation under the securities laws of the United States of America or of any state. (ixi) ~~The Borrower~~ Any Lender may ~~not~~ at any time assign all or any portion of its rights ~~or delegate~~ under this Agreement and the other Financing Documents to the Federal Reserve Bank of the United States; provided, that any payment in respect of such assigned rights made by the Borrower to the assigning Lender in accordance with the terms of this Agreement shall satisfy the Borrower's obligations hereunder in respect of such assigned rights to the extent of such payment. No such assignment shall release the assignor Lender from its ~~duties or~~ obligations hereunder. (xj) To After the ~~extent that~~ completion of the primary and general syndication of the Loans described herein, each transferor Lender shall pay the Administrative Agent a fee of $2,000 in the case of an assignment to an existing Lender or an Affiliate of an existing Lender or $3,500.00 in all ~~or any portion of a Lender's Commitment and outstanding Loans pursuant to subsection (b) of Article XI or this Article XII would~~other cases, due to circumstances existing at the time of such assignment, result in costs under Sections 1.11, 1.13 or 1.14 which are increased from those being charged by the respective assigning Lender prior to such assignment, then the Borrower shall not be obligated to pay such increased costs (although the Borrower shall be obligated to pay any other increased costs of the type described above resulting from changes after the date of the respective assignment). (xi) Any Lender may, in connection with any for processing each assignment ~~or participation~~ made pursuant to this Section, disclose to the assignee or participant any information relating to the Companies and the Parent Affiliates furnished to such Lender by or on behalf of the Borrower and such assignee or participant shall treat such information as confidentialSection 9.06.

Appears in 1 contract

Samples: Credit Agreement (Orion Power Holdings Inc)

Benefit of Agreement Assignments and Participations. (a) This Agreement shall be binding upon and inure to the benefit of and be enforceable by the ~~Borrower, the Lenders and the Agent and their~~ respective successors and ~~permitted assigns~~assigns of the parties hereto; provided, ~~and all subsequent holders of~~ however, that neither Guarantor may assign or transfer any of its rights, obligations or interest hereunder or under any other Relevant Credit Agreement without the ~~Notes~~ prior written consent of each Lender. HSBC Bank (USA), National Association may at any time assign or participate its Commitment, its Loans or any portion ~~thereof~~thereof to its Affiliates, provided that until the last day of the Availability Period, any such Affiliate may only assign or participate its Commitments or Loans to its Affiliates; provided further that the Administrative Agent shall notify the Guarantors of any such assignment or participation of a Commitment or Loan hereunder and the name(s) of the assignee or participant. (b) ~~Each~~ Following the last day of the Availability Period, each Lender ~~may~~ may, in accordance with Applicable Law and this Section, assign its ~~rights and interests under this~~ Loan or any portion thereof to any other Person by execution of an Assignment Agreement, the Notes and the Security Documents and/or delegate its obligations hereunder and thereunder, in whole or in part, and sell participations in the Notes and the Security Documents as security therefor, ; provided ~~as follows~~that: (i) ~~Any~~ any such ~~assignment, other than an~~ partial assignment ~~in whole, made~~ (other than to ~~(A)~~ another Lender) shall be in an amount at least equal to U.S.$1,000,000 or an integral multiple of U.S.$500,000 in excess thereof (or, ~~(B) a separately organized branch of a Lender or (C) a Related Lender Party~~if less, ~~shall reflect an assignment~~ all of such ~~assigning~~ Lender~~'s Notes and Commitments which is in an aggregate principal amount of at least $500,000, unless each of the Borrower and the Agent otherwise consents to a lesser amount.~~’s remaining Loans), (ii) ~~Notwithstanding any provision of this~~ upon each such assignment, the assignor and assignee shall deliver an Assignment Agreement to the contrary, (A) each Lender may at any time pledge all or any portion of its rights under this Agreement and each of the other Loan Documents, including without limitation its Loans and the Notes held by such Lender, to a Federal Reserve Bank (or equivalent thereof in the case of Lenders chartered outside of the United States) in support of borrowings made by such Lender from such Federal Reserve Bank and (B) any Lender that is a fund or similar investment vehicle that invests in or makes commercial loans may, without the consent of the Agent or the Borrower, pledge all or any portion of its Notes or Loans to any holders of obligations owed, or securities issued, by such Person, as security for such obligations or securities, or to any trustee for, or any other representative of, such holders; provided that any foreclosure or similar action by such trustee shall be subject to the provisions of this Section concerning assignments. No pledge pursuant to this subsection (ii) shall release the transferor Lender from any of its obligations and liabilities under the Loan Documents.Administrative Agent, (iii) ~~Any assignments and/or delegations made hereunder~~ the assignee, if it shall not be a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire, (iv) the assignment of any Loans pursuant to this Agreement shall also require that an ~~instrument~~ assignment agreement be executed and delivered in respect of ~~assignment and acceptance~~ such Loans pursuant to the Relevant Credit Agreement relating to such Loans, (~~the "Assignment and Acceptance"~~v) ~~substantially in the form of Schedule 12 and the parties to~~ each such assignment shall ~~execute and deliver~~ be to an Eligible Assignee (except that such restriction shall not apply to an assignment of a Loan under a Relevant Credit Agreement if during any time following the ~~Agent for its acceptance the Assignment and Acceptance together with any Note or Notes subject thereto. Upon such execution and delivery, from and after the effective~~ date ~~specified in each Assignment and Acceptance, which effective date shall be at least~~ that is five (5) Business Days after the ~~execution thereof unless otherwise permitted~~ Majority Lenders have declared all amounts payable by a Borrower under such Relevant Credit Agreement to be immediately due and payable), and (vi) so long as no (x) Default hereunder or under the Relevant Credit Agreement for the Loan being assigned, (y) Guarantor Event of Default or (iii) Borrower Event of Default under the Relevant Credit Agreement for the Loan being assigned exists, each Guarantor has consented to such assignment (such consent not to be unreasonably withheld, and to be deemed given if not received or declined within ten (10) Business Days after written request therefor); provided that no such consent shall be required for any assignment by any Lender to its Affiliate or any other Lender. (c) The Guarantors shall have the right to replace any Lender which does not agree to an amendment or waiver request (each such Lender, a “Non-Consenting Lender”) with an Eligible Assignee designated by the Guarantors. Any replacement of a Lender pursuant to this paragraph shall be (i) made by the Eligible Assignee’s and the Non-Consenting Lender’s entering into an Assignment and Acceptance and by following the procedures in this Section 7.3 for adding a Lender; (ii) shall close within five (5) days after the Administrative Agent’s receipt of a notice of election to replace such Lender from the Guarantors; and (iii) shall only be made upon the Non-Consenting Lender’s being paid in full all principal, interest, and other amounts owed to it as of the effective date of the replacement. (Ad) Upon the effective date of the assignment to be effected by an Assignment Agreement and registration thereof in the Register pursuant to Section 7.3(e), the assignee ~~thereunder~~ shall ~~become a party hereto and~~have, to the extent ~~provided in~~ of such ~~Assignment and Acceptance~~assignment, ~~have~~ the obligations, rights and ~~obligations~~ benefits of a Lender hereunder ~~with applicable Loans as set forth therein~~ holding the Commitment (or portion thereof) assigned to it and specified in such Assignment Agreement (B) in addition to the Commitment, if any, theretofore held by such assignee), and the assigning Lender ~~thereunder~~ shall, to the extent ~~provided in~~ of such ~~assignment~~assignment of its Commitment, be released from the Commitment (or portion thereof) so assigned. Upon its ~~obligations~~ receipt of an Assignment Agreement executed by an assigning Lender and an assignee together with (except in the case of an assignment by a Lender to an Affiliate of such Lender) payment by the assigning or assignee Lender to the Administrative Agent of an assignment fee of U.S.$3,000, the Administrative Agent shall: (A) promptly accept such Assignment Agreement and (B) on the effective date determined pursuant thereto record such assignment in the Register and give notice of such acceptance and recordation to the assigning Lender, its assignee and the Guarantors. Notwithstanding anything to the contrary contained herein, no Borrower and neither Guarantor shall be obligated to pay to any Lender any amount under Section 2.7 of this Agreement as or Sections 3.1, 3.3, 3.4 or 3.5 of any Relevant Credit Agreement that is greater than the amount that any such Borrower or the Guarantors would have been obligated to that portion of its obligation being so assigned and delegated. The Assignment and Acceptance shall be deemed to amend this Agreement to the extent, and only to the extent, necessary to reflect the addition of the assignee as a Lender and the resulting adjustment of Loans arising from the purchase by and delegation to pay such ~~assignee of all or a portion of the rights and obligations of~~ Lender’s assignor if such assigning Lender had not assigned to such Lender any of its rights under this Agreement, unless at the time such assignment is made: (1) the circumstances giving rise to such greater payments did not exist or (2) the Guarantors consent to such greater obligation. Notwithstanding the foregoing, no such assignment shall be allowed if the assignor thereof (if it is assigning less than all of its Loans) would, after such assignment, have less than U.S.$1,000,000 in Loans (such amount to be reduced on a pro rata basis upon the receipt of any payment of principal on the Loans) or Commitments. Any assignment in contravention of the provisions of this paragraph shall be null and void ab initio. (ive) The ~~Agent, on behalf of the Borrower,~~ Administrative Agent shall maintain ~~at the address of the Agent referred to in Section 13.03~~ a copy of each Assignment ~~and Acceptance~~ Agreement delivered to it and a register ~~(the "Register")~~ for the recordation of the names and addresses of the ~~Lenders~~ Lenders, and the Commitments ~~of,~~ and principal ~~amounts~~ amount of the Loans owing to, ~~and any Notes evidencing the Loans owned by,~~ each Lender pursuant to the terms hereof from time to ~~time~~time (the “Register”). The entries in the Register shall be ~~conclusive,~~ conclusive in the absence of manifest ~~error,~~ error and the ~~Borrower~~Guarantors, the Administrative Agent and the Lenders ~~shall~~ may treat each Person whose name is recorded in the Register pursuant to the terms hereof as ~~the owner of~~ a ~~Loan or other obligation~~ Lender hereunder ~~as the owner thereof~~ for all purposes of this Agreement and the ~~other Loan Documents~~Relevant Credit Agreement, notwithstanding ~~any~~ notice to the contrary. ~~Any assignment~~ All payments under the Relevant Credit Agreement in respect of ~~any Loan~~ principal or ~~other obligation hereunder~~ interest shall be ~~effective only upon~~ made to the appropriate ~~entries with respect thereto being made~~ Person named in the Register; provided that in the case of an assignment by a Lender to any Related Lender Party that is not reflected on the Register, the assigning Lender shall maintain a comparable register on behalf of the Agent. The Register shall be available for inspection by the ~~Borrower or~~ Guarantors and any ~~Lender~~ Lender, at any reasonable time and from time to time upon reasonable prior notice. (vf) ~~Upon~~ A Lender may assign its ~~receipt of an Assignment~~ Loans and ~~Acceptance executed~~ its rights and obligations thereunder only by ~~an assigning Lender and the assignee together~~ complying with the ~~Note or Notes, if any, subject to~~ terms of this Agreement. No such assignment ~~(or~~ shall be effected until, and such assignee shall succeed to the rights of a ~~standard indemnity letter from~~ holder only upon, final acceptance and registration of the ~~respective assigning Lender~~ assignment by the Administrative Agent in ~~respect~~ the Register. Prior to the registration of any ~~lost Note or Notes)~~ assignment of Loans by a holder as provided herein, the Administrative Agent may treat the Person in whose name the Lenders are registered as the owner thereof for all purposes and ~~payment by~~ as the ~~assigning Lender or~~ Person entitled to exercise the ~~assignee~~ rights represented thereby, any notice to the Agent of registration and processing fees of $3,500 in the aggregate (except with respect to assignments (A) to any Related Lender Party or another Lender or (B) by the Agent, the Syndication Agent or the Documentation Agent, in their capacities as Lenders), the Agent shall promptly accept such Assignment and Acceptance and record the information contained therein in the Register and give notice of such acceptance and recordation to the Lenders and the Borrower. Such Assignment and Acceptance and the assignment evidenced thereby shall only be effective upon appropriate entries with respect to the information contained therein being made in the Register pursuant to subparagraph (iv) abovecontrary notwithstanding. (vig) Within five (5) Business Days after receipt of such notice, the Borrower shall, if requested by the assignee Lender, execute and deliver to the Agent in exchange for evidence of the delivery to the Agent of a copy of each such surrendered Note, marked "Superseded", one or more new Notes payable to the order of such assignee in an amount equal to the portion of the applicable Commitment assumed and/or Loans purchased by such assignee pursuant to such Assignment and Acceptance and a new Note payable to the order of the assigning If any Lender in an amount equal to the portion of the applicable Commitment(s) and/or Loans retained by it hereunder. Such new Notes shall be dated the effective date of such Assignment and Acceptance and shall otherwise be in substantially the form provided in Sections 1.01, 1.03, 1.04 or 1.04A as applicable. Copies of the superseded Notes shall be delivered to the Borrower upon execution and delivery of such new Notes and the original superseded Notes shall be returned to the assignors thereof. (vii) Each Lender may sell participations in assigns all or a portion of its Loans and its rights and obligations hereunder to any other Person pursuant to the provisions hereof, the assigning Lender shall be relieved of its obligations hereunder with respect to the assigned Loans and Notes, and the assignee shall be a party hereto and, to the extent that Loans and Notes and such other rights and obligations hereunder have been assigned, shall acquire such Loans and Notes and other rights and obligations of a Lender hereunder and under each Relevant Credit Agreement, and this Agreement shall be deemed to be amended to the extent necessary to reflect the transfer and assignment of such rights and obligations and the addition of such assignee, and any reference to the assigning Lender in this Agreement, the Relevant Credit Agreement or the Notes of such Lender shall thereafter refer to such Lender and to such assignee to the extent of their respective interests. (~~including~~h) Following the last day of the Availability Period, ~~without limitation~~a Lender may, in accordance with Applicable Law, sell or agree to sell to one or more other Persons (each a “Participant”) a participation in all or ~~a portion~~ any part of the ~~Notes~~ Loans held by it); provided, however, that, no Lender shall transfer or grant any participation under which the participant shall have rights to approve any amendment to or waiver of this Agreement or any other Loan Document, except to the extent provided that such amendment or waiver would (A) extend the final scheduled maturity of any Loan or Note in which such participant is participating, or reduce the rate or extend the time of payment of interest or fees thereon (except in connection with a waiver of applicability of any post-default increase in interest rates) or reduce the principal amount thereof, or increase the amount of the participant's participation over the amount thereof, or increase the amount of the participant's participation over the amount thereof then in effect (it being understood that no waiver or modification of any condition precedent, covenant or Default or of any mandatory reduction in the aggregate Commitments shall constitute a change in the terms of such participation, that an increase in any Commitment or Loan shall be permitted without the consent of any participant if the participant's participation is not increased as a result thereof and that any amendment or modification to the financial definitions in this Agreement Participant shall not ~~constitute a reduction in~~ have any ~~rate of interest~~ rights or ~~fees for purposes of this clause (A)), (B) consent to the assignment or transfer by the Borrower of any of its rights and~~ obligations under this Agreement or ~~(C) release all or substantially all of~~ the Collateral under all of the Security Documents (except as expressly provided in the Security Documents) supporting the Loans hereunder in which such participant is participating or (D) eliminate the rights set forth in Section 1.21. In the case of any such participation, the participant shall not have any rights under this Relevant Credit Agreement ~~or any of the other Loan Documents~~ (the ~~participant's~~ Participant’s rights against such Lender in respect of such participation to be those set forth in the ~~agreement~~ agreements executed by such Lender in favor of the ~~participant relating thereto) and all~~ Participant). All amounts payable to any Lender under this Agreement or a Relevant Credit Agreement in respect of the Loans held by ~~the Borrower hereunder~~ it, shall be determined as if such Lender had not sold or agreed to sell any participations in such Loan and as if such Lender were funding such Loans in the same way that it is funding the portion of such Loans in which no participations have been sold (or if all of its Loans has been so participated, in the same way that it was funding such Loans at the time of such participation). In no event shall a Lender that sells a participation agree with the Participant to take or refrain from taking any action hereunder except that such Lender may agree with the Participant that it shall not, without the consent of the Participant, agree to anything requiring the vote of 100% of the applicable Lenders hereunder. (~~viii) Except for an assignment made to (~~i) ~~another Lender~~In addition to the assignments and participations permitted under the foregoing provisions of this Section, any Lender may (~~ii) a separately organized branch of a Lender, (iii) a Related Lender Party~~ without notice or ~~(iv) a Qualified Institutional Lender, and except during the existence of a Default, no assignment referred to above shall be permitted without the prior written~~ consent of the Administrative Agent or any other Person and ~~the Borrower, which consent shall not be unreasonably withheld~~ without payment of any fee) assign and pledge all or ~~delayed. (ix) The Borrower may not assign~~ any portion of its ~~rights~~ Loans and Notes to any U.S. Federal Reserve Bank (or ~~delegate~~ other central banking authority) as collateral security pursuant to Regulation A of the Board of Governors of the U.S. Federal Reserve System and any of operating circular issued by such Federal Reserve Bank. No such assignment shall release the assigning Lender from its ~~duties or~~ obligations hereunder. (x) To the extent that an assignment of all or any portion of a Lender's Commitment and outstanding Loans pursuant to subsection (b) of Article XI or this Article XII would, due to circumstances existing at the time of such assignment, result in costs under Sections 1.11, 1.13 or 1.14 which are increased from those being charged by the respective assigning Lender prior to such assignment, then the Borrower shall not be obligated to pay such increased costs (although the Borrower shall be obligated to pay any other increased costs of the type described above resulting from changes after the date of the respective assignment). (xij) Any Lender may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section, disclose to the assignee or participant or proposed assignee or participant any information relating to the ~~Companies~~ relevant Borrower and the ~~Parent Affiliates~~ Guarantors furnished to such Lender by or on behalf of such Borrower or the ~~Borrower and~~ Guarantors; provided that, before any such disclosure, the assignee or participant or proposed assignee or participant shall ~~treat~~ agree to preserve the confidentiality of any Confidential Information relating to the relevant Borrower and the Guarantors received by it from such ~~information as confidential~~Lender on the terms set forth in Section 7.8.

Appears in 1 contract

Samples: Backstop Loan Facility Agreement (Votorantim Cimentos S.A.)

Benefit of Agreement Assignments and Participations. (a) This Agreement shall be binding upon and inure to the benefit of the ~~Borrower~~parties hereto, ~~the Lenders and the Agent~~ and their respective successors and ~~permitted~~ assigns, except that the obligation of the Lenders and ~~all subsequent holders~~ any L/C Issuer hereto to make Revolving Advances and other financial accommodations hereunder shall not inure to the benefit of any successors and assigns of the ~~Notes or any portion thereof~~Borrower. (b) Neither Borrower nor Parent may assign or transfer any of its interest hereunder without the prior written consent of the Lenders. Each of the Lenders may make, carry or transfer its pro rata share of the Revolving Advances at, to or for the account of any of its branch offices or the office of one or more of its Affiliates. 108 (c) Subject to the terms of this Section 12.15, any Lender may ~~assign its rights and interests under this Agreement~~make an assignment to a Qualified Assignee of, or sale of participations in, at any time or times, the ~~Notes~~ Loan Documents, Revolving Advances, Letter of Credit Obligations and ~~the Security Documents and/or delegate its obligations hereunder and~~ any Revolving Commitment or any portion thereof or interest therein, including any Lender's rights, title, interests, remedies, powers or duties thereunder~~, in whole or in part, and sell participations in the Notes and the Security Documents as security therefor, provided as follows:~~ . Any assignment by a Lender shall: (i) Any such assignment, other than an assignment in whole, made other than to (A) another Lender, (B) a separately organized branch of a Lender or (C) a Related Lender Party, shall reflect an assignment of such assigning Lender's Notes and Commitments which is in an aggregate principal amount of at least $500,000, unless each of the Borrower and the Agent otherwise consents to a lesser amount. (ii) Notwithstanding any provision of this Agreement to the contrary, (A) each Lender may at any time pledge all or any portion of its rights under this Agreement and each of the other Loan Documents, including without limitation its Loans and the Notes held by such Lender, to a Federal Reserve Bank (or equivalent thereof in the case of Lenders chartered outside of the United States) in support of borrowings made by such Lender from such Federal Reserve Bank and (B) any Lender that is a fund or similar investment vehicle that invests in or makes commercial loans may, without require the consent of Agent (which consent shall not be unreasonably withheld or delayed with respect to a Qualified Assignee) and the ~~Agent or the Borrower, pledge all or any portion~~ execution of its Notes or Loans to any holders of obligations owed, or securities issued, by such Person, as security for such obligations or securities, or to any trustee for, or any other representative of, such holders; provided that any foreclosure or similar action by such trustee shall be subject to the provisions of this Section concerning assignments. No pledge pursuant to this subsection an assignment agreement (~~ii) shall release the transferor Lender from any of its obligations and liabilities under the Loan Documents. (iii) Any assignments and/or delegations made hereunder shall be pursuant to~~ an ~~instrument of assignment and acceptance (the~~ "Assignment ~~and Acceptance~~Agreement") substantially in the form ~~of Schedule 12~~ attached hereto as Exhibit 12.15(c) and ~~the parties~~ otherwise in form and substance reasonably satisfactory to, and acknowledged by, Agent; (ii) be conditioned on such assignee Lender representing to each such assignment shall execute and deliver to the Agent for its acceptance the Assignment and Acceptance together with any Note or Notes subject thereto. Upon such execution and delivery, from and after the effective date specified in each Assignment and Acceptance, which effective date shall be at least five (5) Business Days after the execution thereof unless otherwise permitted by the Agent, (A) the assignee thereunder shall become a party hereto and, to the extent provided in such Assignment and Acceptance, have the rights and obligations of a Lender hereunder with applicable Loans as set forth therein and (B) the assigning Lender ~~thereunder shall~~and Agent that it is purchasing the applicable Revolving Advances to be assigned to it for its own account, for investment purposes and not with a view to the ~~extent provided in~~ distribution thereof; (iii) after giving effect to any such partial assignment, be released from its obligations under this Agreement as to that portion of its obligation being so assigned and delegated. The Assignment and Acceptance shall be deemed to amend this Agreement to the extent, and only to the extent, necessary to reflect the addition of the assignee as Lender shall have a ~~Lender~~ Revolving Commitment in an amount at least equal to $5,000,000 and the ~~resulting adjustment of Loans arising from the purchase by and delegation to such assignee of all or a portion of the rights and obligations of such~~ assigning Lender ~~under this Agreement.~~ shall have retained a Revolving Commitment in an amount at least equal to $5,000,000; (iv) ~~The Agent~~include a payment to Agent of an assignment fee of $3,500 and (v) so long as no Event of Default has occurred and is continuing, ~~on behalf~~ require the consent of Borrower as to the identity of the ~~Borrower, shall maintain at the address~~ Qualified Assignee Lender of the ~~Agent referred to~~ type described in ~~Section 13.03 a copy of each Assignment and Acceptance delivered to it and a register~~ clause (~~the "Register"~~b) ~~for the recordation~~ of the ~~names and addresses~~ definition of ~~the Lenders and the Commitments of~~"Qualified Assignee", ~~and principal amounts of the Loans owing to, and any Notes evidencing the Loans owned by, each Lender from time to time. The entries in the Register~~ which shall not be ~~conclusive, in the absence of manifest error, and the Borrower, the Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of a Loan~~ unreasonably withheld 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 Registerdelayed; provided that no such consent shall be required for an assignment to a Qualified Assignee of the type described in clause (a) of the definition of "Qualified Assignee"; and provided further that an assignment will not be effective unless it is recorded by Agent in the Loan Account. In the case of an assignment by a Lender ~~to any Related Lender Party that is not reflected on the Register~~under this Section 12.15, the assignee shall have, to the extent of such assignment, the same rights, benefits and obligations as all other Lenders hereunder. The assigning Lender shall ~~maintain~~ be relieved of its obligations hereunder with respect to its Revolving Commitment or assigned portion thereof from and after the date of such assignment. Borrower hereby acknowledges and agrees that any assignment shall give rise to a ~~comparable register on behalf~~ direct obligation of Borrower to the assignee and that the assignee shall be considered to be a "Lender". In all instances, each Lender's liability to make Revolving Advances hereunder shall be several and not joint and shall be limited to such Lender's pro rata share of the ~~Agent~~aggregate Revolving Commitment. ~~The Register shall be available for inspection by~~ In the ~~Borrower~~ event Agent or any Lender at assigns or otherwise transfers all or any ~~reasonable time~~ part of the Obligations, Agent or any such Lender shall so notify Borrower and ~~from time to time~~ Borrower shall, upon ~~reasonable prior notice. (v) Upon its receipt~~ the request of ~~an Assignment and Acceptance executed by an assigning Lender and~~ Agent or such Lender, execute new Notes in exchange for the ~~assignee together with the Note or~~ Notes, if any, ~~subject to such assignment (or a standard indemnity letter from~~ being assigned. Notwithstanding the ~~respective assigning Lender in respect~~ foregoing provisions of any lost Note or Notes) and payment by the assigning Lender or the assignee to the Agent of registration and processing fees of $3,500 in the aggregate (except with respect to assignments (A) to any Related Lender Party or another Lender or (B) by the Agent, the Syndication Agent or the Documentation Agent, in their capacities as Lendersthis Section 12.15(c), (i) any Lender may at any time pledge the Agent shall promptly accept such Assignment and Acceptance and record the information contained therein in the Register and give notice of such acceptance and recordation to the Lenders and the Borrower. Such Assignment and Acceptance and the assignment evidenced thereby shall only be effective upon appropriate entries with respect to the information contained therein being made in the Register pursuant to subparagraph (iv) above. (vi) Within five (5) Business Days after receipt of such notice, the Borrower shall, if requested by the assignee Lender, execute and deliver to the Agent in exchange for evidence of the delivery to the Agent of a copy of each such surrendered Note, marked "Superseded", one or more new Notes payable to the order of such assignee in an amount equal to the portion of the applicable Commitment assumed and/or Loans purchased by such assignee pursuant to such Assignment and Acceptance and a new Note payable to the order of the assigning Lender in an amount equal to the portion of the applicable Commitment(s) and/or Loans retained Obligations held by it ~~hereunder. Such new Notes shall be dated the effective date of~~ and such Assignment and Acceptance and shall otherwise be in substantially the form provided in Sections 1.01, 1.03, 1.04 or 1.04A as applicable. Copies of the superseded Notes shall be delivered to the Borrower upon execution and delivery of such new Notes and the original superseded Notes shall be returned to the assignors thereof. (vii) Each Lender may sell participations in all or a portion of its Lender's rights ~~and obligations~~ under this Agreement ~~(including, without limitation, all or~~ and the other Loan Documents to a ~~portion of the Notes held by it);~~ Federal Reserve Bank provided, ~~however, that,~~ that no such pledge to a Federal Reserve Bank shall release such Lender ~~shall transfer~~ from such Lender's obligations hereunder or ~~grant any participation~~ under ~~which the participant shall have rights to approve any amendment to or waiver of this Agreement or~~ any other Loan Document, ~~except to~~ and (ii) any Lender that is an investment fund may assign the ~~extent~~ Obligations held by it and such amendment or waiver would (A) extend the final scheduled maturity of any Loan or Note in which such participant is participating, or reduce the rate or extend the time of payment of interest or fees thereon (except in connection with a waiver of applicability of any post-default increase in interest rates) or reduce the principal amount thereof, or increase the amount of the participantLender's participation over the amount thereof, or increase the amount of the participant's participation over the amount thereof then in effect (it being understood that no waiver or modification of any condition precedent, covenant or Default or of any mandatory reduction in the aggregate Commitments shall constitute a change in the terms of such participation, that an increase in any Commitment or Loan shall be permitted without the consent of any participant if the participant's participation is not increased as a result thereof and that any amendment or modification to the financial definitions in this Agreement shall not constitute a reduction in any rate of interest or fees for purposes of this clause (A)), (B) consent to the assignment or transfer by the Borrower of any of its rights and obligations under this Agreement or (C) release all or substantially all of the Collateral under all of the Security Documents (except as expressly provided in the Security Documents) supporting the Loans hereunder in which such participant is participating or (D) eliminate the rights set forth in Section 1.21. In the case of any such participation, the participant shall not have any rights under this Agreement ~~or any of~~ and the other Loan Documents (to another investment fund managed by the ~~participant's rights against~~ same investment advisor, provided that such Lender shall notify Agent of any such assignment for purposes of maintaining the Loan Account in ~~respect of~~ accordance with Section 2.21 hereof, and such ~~participation to be those set forth~~ assignment will become effective only if such assignment is recorded in the ~~agreement executed by such Lender in favor of the participant relating thereto) and all amounts payable by the Borrower hereunder shall be determined as if such Lender had not sold such participation~~Loan Account. (viii) Except for an assignment made to (i) another Lender, (ii) a separately organized branch of a Lender, (iii) a Related Lender Party or (iv) a Qualified Institutional Lender, and except during the existence of a Default, no assignment referred to above shall be permitted without the prior written consent of the Agent and the Borrower, which consent shall not be unreasonably withheld or delayed. (ix) The Borrower may not assign any of its rights or delegate any of its duties or obligations hereunder. (x) To the extent that an assignment of all or any portion of a Lender's Commitment and outstanding Loans pursuant to subsection (b) of Article XI or this Article XII would, due to circumstances existing at the time of such assignment, result in costs under Sections 1.11, 1.13 or 1.14 which are increased from those being charged by the respective assigning Lender prior to such assignment, then the Borrower shall not be obligated to pay such increased costs (although the Borrower shall be obligated to pay any other increased costs of the type described above resulting from changes after the date of the respective assignment). (xi) Any Lender may, in connection with any assignment or participation pursuant to this Section, disclose to the assignee or participant any information relating to the Companies and the Parent Affiliates furnished to such Lender by or on behalf of the Borrower and such assignee or participant shall treat such information as confidential.

Appears in 1 contract

Samples: Credit Agreement (Finlay Enterprises Inc /De)

Benefit of Agreement Assignments and Participations. (a) This Agreement shall be binding upon and inure to the benefit of and be enforceable by the ~~Borrower, the Lenders and the Agent and their~~ respective successors and ~~permitted assigns, and all subsequent holders of any~~ assigns of the ~~Notes or any portion thereof. (b) Each Lender may assign its rights and interests under this Agreement~~parties hereto; provided, ~~the Notes and the Security Documents and/or delegate its obligations hereunder and thereunder~~however, ~~in whole or in part, and sell participations in the Notes and the Security Documents as security therefor, provided as follows:~~ that (i) ~~Any such assignment~~no Credit Party may assign or transfer any of its rights, obligations or interests hereunder or under any other than an assignment in whole, made other than to (A) another Lender, (B) a separately organized branch of a Lender or (C) a Related Lender Party, shall reflect an assignment of such assigning Lender's Notes and Commitments which is in an aggregate principal amount of at least $500,000, unless each Credit Document without the prior written consent of the ~~Borrower and the Agent otherwise consents to a lesser amount.~~ Lenders, (ii) ~~Notwithstanding~~ although any ~~provision of this Agreement to the contrary, (A) each~~ Lender may ~~at any time pledge~~ transfer, assign or grant participations in its rights hereunder, such Lender shall remain a “Lender” for all purposes hereunder (and may not transfer or assign all or any portion of its ~~rights under this Agreement~~ Commitments hereunder except as provided in Sections 2.12 and ~~each of~~ 14.04(b) or as otherwise separately agreed to in writing with the ~~other Loan Documents, including without limitation its Loans~~ Borrower) and the ~~Notes held by such Lender~~transferee, ~~to a Federal Reserve Bank (~~assignee or ~~equivalent thereof in~~ participant, as the case ~~of Lenders chartered outside of the United States) in support of borrowings made by such Lender from such Federal Reserve Bank~~ may be, shall not constitute a “Lender” hereunder and (B) any Lender that is a fund or similar investment vehicle that invests in or makes commercial loans may, without the consent of the Agent or the Borrower, pledge all or any portion of its Notes or Loans to any holders of obligations owed, or securities issued, by such Person, as security for such obligations or securities, or to any trustee for, or any other representative of, such holders; provided that any foreclosure or similar action by such trustee shall be subject to the provisions of this Section concerning assignments. No pledge pursuant to this subsection (ii) shall release the transferor Lender from any of its obligations and liabilities under the Loan Documents. (iii) Any assignments and/or delegations made hereunder shall be pursuant to an instrument of assignment and acceptance (the "Assignment and Acceptance") substantially in the form of Schedule 12 and the parties to each such assignment shall execute and deliver to the Agent for its acceptance the Assignment and Acceptance together with any Note or Notes subject thereto. Upon such execution and delivery, from and after the effective date specified in each Assignment and Acceptance, which effective date shall be at least five (5) Business Days after the execution thereof unless otherwise permitted by the Agent, (A) the assignee thereunder shall become a party hereto and, to the extent provided in such Assignment and Acceptance, have the rights and obligations of a Lender hereunder with applicable Loans as set forth therein and (B) the assigning Lender thereunder shall, to the extent provided in such assignment, be released from its obligations under this Agreement as to that portion of its obligation being so assigned and delegated. The Assignment and Acceptance shall be deemed to amend this Agreement to the extent, and only to the extent, necessary to reflect the addition of the assignee as a Lender and the resulting adjustment of Loans arising from the purchase by and delegation to such assignee of all or a portion of the rights and obligations of such assigning Lender under this Agreement. (iv) The Agent, on behalf of the Borrower, shall maintain at the address of the Agent referred to in Section 13.03 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 Commitments of, and principal amounts of the Loans owing to, and any Notes evidencing the Loans owned by, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, the 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; provided that in the case of an assignment by a Lender to any Related Lender Party that is not reflected on the Register, the assigning Lender shall maintain a comparable register on behalf of the Agent. 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. (v) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and the assignee together with the Note or Notes, if any, subject to such assignment (or a standard indemnity letter from the respective assigning Lender in respect of any lost Note or Notes) and payment by the assigning Lender or the assignee to the Agent of registration and processing fees of $3,500 in the aggregate (except with respect to assignments (A) to any Related Lender Party or another Lender or (B) by the Agent, the Syndication Agent or the Documentation Agent, in their capacities as Lenders), the Agent shall promptly accept such Assignment and Acceptance and record the information contained therein in the Register and give notice of such acceptance and recordation to the Lenders and the Borrower. Such Assignment and Acceptance and the assignment evidenced thereby shall only be effective upon appropriate entries with respect to the information contained therein being made in the Register pursuant to subparagraph (iv) above. (vi) Within five (5) Business Days after receipt of such notice, the Borrower shall, if requested by the assignee Lender, execute and deliver to the Agent in exchange for evidence of the delivery to the Agent of a copy of each such surrendered Note, marked "Superseded", one or more new Notes payable to the order of such assignee in an amount equal to the portion of the applicable Commitment assumed and/or Loans purchased by such assignee pursuant to such Assignment and Acceptance and a new Note payable to the order of the assigning Lender in an amount equal to the portion of the applicable Commitment(s) and/or Loans retained by it hereunder. Such new Notes shall be dated the effective date of such Assignment and Acceptance and shall otherwise be in substantially the form provided in Sections 1.01, 1.03, 1.04 or 1.04A as applicable. Copies of the superseded Notes shall be delivered to the Borrower upon execution and delivery of such new Notes and the original superseded Notes shall be returned to the assignors thereof. (vii) Each Lender may sell participations in all or a portion of its rights and obligations under this Agreement (including, without limitation, all or a portion of the Notes held by it); provided, however, that, no Lender shall transfer or grant any participation under which the participant shall have rights to approve any amendment to or waiver of this Agreement or any other ~~Loan Document,~~ Credit Document except to the extent such amendment or waiver would (Ax) extend the final scheduled maturity of any Loan or Note in which such participant is participating, or reduce the rate or extend the time of payment of interest or ~~fees~~ Deferred Fee thereon (except (m) in connection with a waiver of applicability of any post-default increase in interest ~~rates~~rates and (n) that any amendment or modification to the financial definitions in this Agreement shall not constitute a reduction in the rate of interest for purposes of this clause (x)) or reduce the principal amount thereof, or increase the amount of the participant~~'s participation over the amount thereof, or increase the amount of the participant's~~ ’s participation over the amount thereof then in effect (it being understood that no a waiver ~~or modification~~ of any ~~condition precedent, covenant~~ Default or Event of Default or of ~~any~~ a mandatory reduction in the ~~aggregate Commitments~~ Total Tranche A Term Loan Commitment or Total Tranche B Term Loan Commitment shall not constitute a change in the terms of such participation, and that an increase in any Commitment or Loan shall be permitted without the consent of any participant if the participant's ’s participation is not increased as a result ~~thereof and that any amendment or modification to the financial definitions in this Agreement shall not constitute a reduction in any rate of interest or fees for purposes of this clause (A)~~thereof), (By) consent to the assignment or transfer by the Borrower of any of its rights and obligations under this Agreement or (Cz) release all or substantially all of the Collateral under all of the Security Documents (except as expressly provided in the ~~Security~~ Credit Documents) ~~supporting~~ securing the Loans hereunder in which such participant is ~~participating or (D) eliminate the rights set forth in Section 1.21~~participating. In the case of any such participation, the participant shall not have any rights under this Agreement or any of the other ~~Loan~~ Credit Documents (the participant's ’s rights against such Lender in respect of such participation to be those set forth in the agreement executed by such Lender in favor of the participant relating thereto) and all amounts payable by the Borrower hereunder shall be determined as if such Lender had not sold such participation. (~~viii~~b) ~~Except for an assignment made~~ Notwithstanding the foregoing, any Lender (or any Lender together with one or more other Lenders) may (x) assign all or a portion of its Commitment and/or its outstanding Loans to its (i) ~~another Lender,~~ parent company so long as such parent company is solvent and/or any affiliate of such Lender which is at least 50% owned by such Lender or its parent company (so long as such affiliate is solvent) or (ii) in the case of any Lender that is a ~~separately organized branch~~ fund or other entity that invests in bank loans, any other fund or entity that invests in bank loans and is managed or advised by the same investment advisor of ~~a Lender,~~ such Lender or by an Affiliate of such investment advisor (so long as such fund or other entity is solvent) or (iii) ~~a Related Lender Party~~ to one or more Lenders or (ivy) ~~a Qualified Institutional Lender, and except during~~ assign with the ~~existence of a Default, no assignment referred to above shall be permitted without the prior written~~ consent of the ~~Agent and the Borrower,~~ Borrower (which consent shall not be unreasonably withheld or ~~delayed.~~ delayed and shall not be required if any Event of Default is then in existence) all, or if less than all, a portion equal to at least $1,000,000 in the aggregate for the assigning Lender or assigning Lenders, of such Commitments and outstanding principal amount of Loans hereunder to one or more Eligible Transferees (ixtreating any fund or other entity that invests in bank loans and any other fund or entity that invests in bank loans and is managed or advised by the same investment advisor of such fund or other entity or by an Affiliate of such investment advisor as a single Eligible Transferee), each of which assignees shall become a party to this Agreement as a Lender by execution of an Assignment and Assumption Agreement, provided that (i) ~~The~~ at such time Schedule I shall be deemed modified to reflect the Commitments (and/or outstanding Loans, as the case may be) of such new Lender and of the existing Lenders, (ii) upon the surrender of the relevant Notes assigned by the Lender, new Notes will be issued, at the Borrower’s expense, to such new Lender and to the assigning Lender upon the request of such new Lender or assigning Lender, such new Notes to be in conformity with the requirements of Section 2.05 (with appropriate modifications) to the extent needed to reflect the revised Commitments (and/or outstanding Loans, as the case may be), and (iii) the Administrative Agent shall receive at the time of each such assignment, from the assigning or assignee Lender, the payment of a non-refundable assignment fee of $3,000; provided, however, that notwithstanding any other provision of this Section 14.04, the consent of the Borrower ~~may~~ shall not ~~assign~~ be required in any manner with respect to any assignment to an Eligible Assignee if such assignment is made by the Administrative Agent (in its capacity as a Lender) and relates to the Tranche A Term Loans. To the extent of any assignment pursuant to this Section 14.04(b), the assigning Lender shall be relieved of its ~~rights or delegate any~~ obligations hereunder with respect to its assigned Commitments and outstanding Loans. At the time of ~~its duties or obligations~~ each assignment pursuant to this Section 14.04(b) to a Person which is not already a Lender hereunder~~. (x)~~ , the respective assignee Lender shall, to the extent legally entitled to do so, comply with Section 5.04(b). To the extent that an assignment of all or any portion of a Lender~~'s Commitment~~ ’s Commitments and related outstanding ~~Loans~~ Obligations pursuant to ~~subsection (b) of Article XI~~ Section 2.12 or this ~~Article XII~~ Section 14.04(b) would, ~~due to circumstances existing~~ at the time of such assignment, result in increased costs under ~~Sections 1.11, 1.13~~ Section 2.09 or ~~1.14 which are increased~~ 2.10 from those being charged by the respective assigning Lender prior to such assignment, then the Borrower shall not be obligated to pay such increased costs (although the ~~Borrower~~ Borrower, in accordance with and pursuant to the other provisions of this Agreement, shall be obligated to pay any other increased costs of the type described above resulting from changes after the date of the respective assignment). (xic) ~~Any~~ Nothing in this Agreement shall prevent or prohibit any Lender ~~may~~from pledging its Loans and Notes hereunder to a Federal Reserve Bank in support of borrowings made by such Lender from such Federal Reserve Bank and, with prior notification to the Administrative Agent (but without the consent of the Administrative Agent or the Borrower), any Lender which is a fund may pledge all or any portion of its Loans and Notes to its trustee or to a collateral agent providing credit or credit support to such Lender in ~~connection with any assignment~~ support of its obligations to such trustee, such collateral agent or ~~participation~~ a holder of such obligations, as the case may be. No pledge pursuant to this ~~Section, disclose to~~ clause (c) shall release the ~~assignee or participant~~ transferor Lender from any ~~information relating to the Companies and the Parent Affiliates furnished to such Lender by or on behalf~~ of ~~the Borrower and such assignee or participant shall treat such information as confidential~~its obligations hereunder.

Appears in 1 contract

Samples: Priority Credit Agreement (Trico Marine Services Inc)

Benefit of Agreement Assignments and Participations. (a) This Agreement shall be binding upon and inure to the benefit of and be enforceable by the ~~Borrower, the Lenders and the Agent and their~~ respective successors and ~~permitted assigns~~assigns of the parties hereto; provided, ~~and all subsequent holders of~~ however, no Obligor may assign or transfer any of its rights, obligations or interest hereunder or under any other Credit Document without the ~~Notes or any portion thereof~~prior written consent of each Bank. (b) Each ~~Lender~~ Bank may assign its rights and interests under this Agreement, the Notes and the Security Documents and/or delegate its obligations hereunder and thereunder, in whole or in part, and sell participations in the Notes and the Security Documents as security therefor, provided as follows: (i) Any such assignment, other than an assignment in whole, made other than to (A) another Lender, (B) a separately organized branch of a Lender or (C) a Related Lender Party, shall reflect an assignment of such assigning Lender's Notes and Commitments which is in an aggregate principal amount of at least $500,000, unless each of the Borrower and the Agent otherwise consents to a lesser amount. (ii) Notwithstanding any provision of this Agreement to the contrary, (A) each Lender may at any time pledge all or any portion of its rights under this Agreement and each of the other Loan Documents, including without limitation its Loans and the Notes held by such Lender, to a Federal Reserve Bank (or equivalent thereof in the case of Lenders chartered outside of the United States) in support of borrowings made by such Lender from such Federal Reserve Bank and (B) any Lender that is a fund or similar investment vehicle that invests in or makes commercial loans may, without the consent of the Agent or the Borrower, pledge all or any portion of its Notes or Loans to any holders of obligations owed, or securities issued, by such Person, as security for such obligations or securities, or to any trustee for, or any other representative of, such holders; provided that any foreclosure or similar action by such trustee shall be subject to the provisions of this Section concerning assignments. No pledge pursuant to this subsection (ii) shall release the transferor Lender from any of its obligations and liabilities under the Loan Documents. (iii) Any assignments and/or delegations made hereunder shall be pursuant to an instrument of assignment and acceptance (the "Assignment and Acceptance") substantially in the form of Schedule 12 and the parties to each such assignment shall execute and deliver to the Agent for its acceptance the Assignment and Acceptance together with any Note or Notes subject thereto. Upon such execution and delivery, from and after the effective date specified in each Assignment and Acceptance, which effective date shall be at least five (5) Business Days after the execution thereof unless otherwise permitted by the Agent, (A) the assignee thereunder shall become a party hereto and, to the extent provided in such Assignment and Acceptance, have the rights and obligations of a Lender hereunder with applicable Loans as set forth therein and (B) the assigning Lender thereunder shall, to the extent provided in such assignment, be released from its obligations under this Agreement as to that portion of its obligation being so assigned and delegated. The Assignment and Acceptance shall be deemed to amend this Agreement to the extent, and only to the extent, necessary to reflect the addition of the assignee as a Lender and the resulting adjustment of Loans arising from the purchase by and delegation to such assignee of all or a portion of the rights and obligations of such assigning Lender under this Agreement. (iv) The Agent, on behalf of the Borrower, shall maintain at the address of the Agent referred to in Section 13.03 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 Commitments of, and principal amounts of the Loans owing to, and any Notes evidencing the Loans owned by, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, the 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; provided that in the case of an assignment by a Lender to any Related Lender Party that is not reflected on the Register, the assigning Lender shall maintain a comparable register on behalf of the Agent. 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. (v) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and the assignee together with the Note or Notes, if any, subject to such assignment (or a standard indemnity letter from the respective assigning Lender in respect of any lost Note or Notes) and payment by the assigning Lender or the assignee to the Agent of registration and processing fees of $3,500 in the aggregate (except with respect to assignments (A) to any Related Lender Party or another Lender or (B) by the Agent, the Syndication Agent or the Documentation Agent, in their capacities as Lenders), the Agent shall promptly accept such Assignment and Acceptance and record the information contained therein in the Register and give notice of such acceptance and recordation to the Lenders and the Borrower. Such Assignment and Acceptance and the assignment evidenced thereby shall only be effective upon appropriate entries with respect to the information contained therein being made in the Register pursuant to subparagraph (iv) above. (vi) Within five (5) Business Days after receipt of such notice, the Borrower shall, if requested by the assignee Lender, execute and deliver to the Agent in exchange for evidence of the delivery to the Agent of a copy of each such surrendered Note, marked "Superseded", one or more new Notes payable to the order of such assignee in an amount equal to the portion of the applicable Commitment assumed and/or Loans purchased by such assignee pursuant to such Assignment and Acceptance and a new Note payable to the order of the assigning Lender in an amount equal to the portion of the applicable Commitment(s) and/or Loans retained by it hereunder. Such new Notes shall be dated the effective date of such Assignment and Acceptance and shall otherwise be in substantially the form provided in Sections 1.01, 1.03, 1.04 or 1.04A as applicable. Copies of the superseded Notes shall be delivered to the Borrower upon execution and delivery of such new Notes and the original superseded Notes shall be returned to the assignors thereof. (vii) Each Lender may sell participations in all or a portion of its ~~rights~~ Loans or Commitments hereunder to one or more Eligible Assignees each of which assignees shall become a party to this Agreement as a Bank by execution of an assignment agreement, substantially in the form of Exhibit J; provided that, (i) at such time Schedule I shall be deemed modified to reflect the Commitments of such new Bank and of the existing Banks; (ii) the Obligors will issue new Notes to such new Bank and to the assigning Bank upon the request of such new Bank or assigning Bank in replacement of the original Notes, such new Notes to be in conformity with the requirements of Section 2.4 to the extent needed to reflect the ownership of the Loans; (iii) the Administrative Agent shall receive at the time of each such assignment, from the assignee, the payment of a non-refundable assignment fee of U.S.$3,500; and (iv) each such assignment shall be in a minimum amount of U.S.$10,000,000. To the extent of any assignment pursuant to this Section 13.3(b), the assigning Bank shall be relieved of its obligations hereunder with respect to its assigned Commitments and Loans. No transfer or assignment under this ~~Agreement (~~Section 13.3(b) will be effective until recorded by the Administrative Agent on the Register pursuant to Section 13.3(c). Notwithstanding the foregoing, no assignment after the date hereof shall increase the withholding tax burden on the Borrowers based on the Applicable Law in effect as of the date of such assignment, including, without limitation, ~~all or a portion of the Notes held by it~~any additional amounts payable under Section 4.5(a); provided, however, ~~that~~that such limitation shall not prevent any such assignment, but shall shift the burden of any such increased cost, to the extent such cost relates solely to Applicable Law in effect as of the date of such assignment, to the relevant assignee throughout the remainder of the term of this Agreement. (c) The Borrowers hereby designate the Administrative Agent to serve as the Borrowers’ agent, solely for purposes of this Section 13.3(c), to maintain a register (the “Register”) on which it will record the Commitments from time to time of each of the Banks, the Loans made by each of the Banks and each repayment in respect of the principal amount of the Loans of each Bank. The requirements of this Section 13.3(c) and Section 13.3(b) are intended to result in the Loans being in “registered form” for purposes of Section 871, Section 881 or any other applicable provision of the Code, and shall be interpreted and applied in a manner consistent therewith. Failure to make any such recordation, or any error in such recordation shall not affect the Borrowers’ obligations in respect of the Loans. Each Borrower agrees to indemnify the Administrative Agent from and against any and all losses, claims, damages and liabilities of whatsoever nature which may be imposed on, asserted against or incurred by the Administrative Agent in performing its duties under this Section 13.3(c), except to the extent that such losses, claims, damages or liabilities were caused by the gross negligence or willful misconduct of the Administrative Agent. (d) Notwithstanding the foregoing, any Bank may transfer or grant participations in its rights hereunder without the consent of any Obligor. In connection with any such participation, such Bank shall remain a “Bank” for all purposes hereunder and the participant shall not constitute a “Bank” hereunder and no ~~Lender~~ Bank shall transfer or grant any participation under which the participant shall have rights to approve any amendment to or waiver of this Agreement or any other ~~Loan Document,~~ Credit Document except to the extent such amendment or waiver would (Ai) extend ~~the final~~ any scheduled ~~maturity~~ Payment Date of any Loan or Note in which such participant is participating, or reduce the rate or extend the time of payment of interest or fees thereon (except in connection with a waiver of applicability of any post-default increase in interest rates) or reduce the principal amount thereof, or increase the ~~amount of the participant's participation over the amount thereof, or increase the amount of the participant's participation~~ Commitments in which such participant is participating over the amount thereof then in effect (it being understood that no a waiver ~~or modification~~ of any ~~condition precedent, covenant or~~ Default or Event of ~~any mandatory reduction in the aggregate Commitments~~ Default shall not constitute a change in the terms of ~~such participation~~any Commitment, and that an increase in any Commitment ~~or Loan~~ shall be permitted without the consent of any participant if the participant's ’s participation is not increased as a result ~~thereof and that any amendment or modification to the financial definitions in this Agreement shall not constitute a reduction in any rate of interest or fees for purposes of this clause (A)~~thereof), (Bii) consent to the assignment or transfer by ~~the Borrower~~ any Obligor of any of its rights and obligations under this ~~Agreement~~ Agreement, (iii) amend, modify or waive any provision in Article XI hereof or release any Guarantor from any of their respective obligations hereunder, or (Civ) release all or ~~substantially all~~ any portion of the Collateral ~~under all of the Security Documents~~ (~~except~~ as ~~expressly provided~~ such term is defined in the Security ~~Documents) supporting the Loans hereunder in which such participant is participating or (D) eliminate the rights set forth in Section 1.21~~Agreement). In the case of any such participation, the participant shall not have any rights under this Agreement or any of the other ~~Loan~~ Credit Documents (the participant's ’s rights against such ~~Lender~~ Bank in respect of such participation to be those set forth in the agreement executed by such ~~Lender~~ Bank in favor of the participant relating thereto) and all amounts payable by the ~~Borrower~~ Borrowers hereunder shall be determined as if such ~~Lender~~ Bank had not sold such participation, except that the participant shall be entitled to the benefit of Article IV to the extent that such Bank would have been entitled thereto if it had not granted such participation. (~~viii~~e) ~~Except for an assignment made~~ In addition to the assignments and participations permitted under the foregoing provisions of this Section 13.3, any Bank may (~~i) another Lender, (ii) a separately organized branch of a Lender, (iii) a Related Lender Party~~ without notice or ~~(iv) a Qualified Institutional Lender, and except during the existence of a Default, no assignment referred to above shall be permitted without the prior written~~ consent of the ~~Agent~~ Administrative Agent, the Borrowers or any other Person and ~~the Borrower, which consent shall not be unreasonably withheld or delayed. (ix~~without payment of any fee) ~~The Borrower may not~~ assign ~~any of its rights or delegate any of its duties or obligations hereunder. (x) To the extent that an assignment of~~ and pledge all or any portion of ~~a Lender's Commitment~~ its Loans and ~~outstanding Loans~~ Notes to any U.S. Federal Reserve Bank as collateral security pursuant to subsection (b) of Article XI or this Article XII would, due to circumstances existing at the time of such assignment, result in costs under Sections 1.11, 1.13 or 1.14 which are increased from those being charged by the respective assigning Lender prior to such assignment, then the Borrower shall not be obligated to pay such increased costs (although the Borrower shall be obligated to pay any other increased costs Regulation A of the ~~type described above resulting from changes after the date~~ Board of Governors of the ~~respective assignment)~~U.S. Federal Reserve System and any operating circular issued by such Federal Reserve Bank. No such assignment shall release the assigning Bank from its obligations hereunder. (xi) Any Lender may, in connection with any assignment or participation pursuant to this Section, disclose to the assignee or participant any information relating to the Companies and the Parent Affiliates furnished to such Lender by or on behalf of the Borrower and such assignee or participant shall treat such information as confidential.

Appears in 1 contract

Samples: Senior Export and Working Capital Facility Agreement (Gerdau Ameristeel Corp)

Benefit of Agreement Assignments and Participations. (a) This Agreement shall be binding upon and inure to the benefit of and be enforceable by the ~~Borrower, the Lenders and the Agent and their~~ respective successors and ~~permitted assigns~~assigns of the parties hereto; provided, ~~and all subsequent holders of~~ however, no Obligor may assign or transfer any of its rights, obligations or interest hereunder or under any other Credit Document without the ~~Notes or any portion thereof~~prior written consent of each Bank. (b) Each ~~Lender~~ Bank may assign its rights and interests under this Agreement, the Notes and the Security Documents and/or delegate its obligations hereunder and thereunder, in whole or in part, and sell participations in the Notes and the Security Documents as security therefor, provided as follows: (i) Any such assignment, other than an assignment in whole, made other than to (A) another Lender, (B) a separately organized branch of a Lender or (C) a Related Lender Party, shall reflect an assignment of such assigning Lender's Notes and Commitments which is in an aggregate principal amount of at least $500,000, unless each of the Borrower and the Agent otherwise consents to a lesser amount. (ii) Notwithstanding any provision of this Agreement to the contrary, (A) each Lender may at any time pledge all or any portion of its rights under this Agreement and each of the other Loan Documents, including without limitation its Loans and the Notes held by such Lender, to a Federal Reserve Bank (or equivalent thereof in the case of Lenders chartered outside of the United States) in support of borrowings made by such Lender from such Federal Reserve Bank and (B) any Lender that is a fund or similar investment vehicle that invests in or makes commercial loans may, without the consent of the Agent or the Borrower, pledge all or any portion of its Notes or Loans to any holders of obligations owed, or securities issued, by such Person, as security for such obligations or securities, or to any trustee for, or any other representative of, such holders; provided that any foreclosure or similar action by such trustee shall be subject to the provisions of this Section concerning assignments. No pledge pursuant to this subsection (ii) shall release the transferor Lender from any of its obligations and liabilities under the Loan Documents. (iii) Any assignments and/or delegations made hereunder shall be pursuant to an instrument of assignment and acceptance (the "Assignment and Acceptance") substantially in the form of Schedule 12 and the parties to each such assignment shall execute and deliver to the Agent for its acceptance the Assignment and Acceptance together with any Note or Notes subject thereto. Upon such execution and delivery, from and after the effective date specified in each Assignment and Acceptance, which effective date shall be at least five (5) Business Days after the execution thereof unless otherwise permitted by the Agent, (A) the assignee thereunder shall become a party hereto and, to the extent provided in such Assignment and Acceptance, have the rights and obligations of a Lender hereunder with applicable Loans as set forth therein and (B) the assigning Lender thereunder shall, to the extent provided in such assignment, be released from its obligations under this Agreement as to that portion of its obligation being so assigned and delegated. The Assignment and Acceptance shall be deemed to amend this Agreement to the extent, and only to the extent, necessary to reflect the addition of the assignee as a Lender and the resulting adjustment of Loans arising from the purchase by and delegation to such assignee of all or a portion of the rights and obligations of such assigning Lender under this Agreement. (iv) The Agent, on behalf of the Borrower, shall maintain at the address of the Agent referred to in Section 13.03 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 Commitments of, and principal amounts of the Loans owing to, and any Notes evidencing the Loans owned by, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, the 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; provided that in the case of an assignment by a Lender to any Related Lender Party that is not reflected on the Register, the assigning Lender shall maintain a comparable register on behalf of the Agent. 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. (v) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and the assignee together with the Note or Notes, if any, subject to such assignment (or a standard indemnity letter from the respective assigning Lender in respect of any lost Note or Notes) and payment by the assigning Lender or the assignee to the Agent of registration and processing fees of $3,500 in the aggregate (except with respect to assignments (A) to any Related Lender Party or another Lender or (B) by the Agent, the Syndication Agent or the Documentation Agent, in their capacities as Lenders), the Agent shall promptly accept such Assignment and Acceptance and record the information contained therein in the Register and give notice of such acceptance and recordation to the Lenders and the Borrower. Such Assignment and Acceptance and the assignment evidenced thereby shall only be effective upon appropriate entries with respect to the information contained therein being made in the Register pursuant to subparagraph (iv) above. (vi) Within five (5) Business Days after receipt of such notice, the Borrower shall, if requested by the assignee Lender, execute and deliver to the Agent in exchange for evidence of the delivery to the Agent of a copy of each such surrendered Note, marked "Superseded", one or more new Notes payable to the order of such assignee in an amount equal to the portion of the applicable Commitment assumed and/or Loans purchased by such assignee pursuant to such Assignment and Acceptance and a new Note payable to the order of the assigning Lender in an amount equal to the portion of the applicable Commitment(s) and/or Loans retained by it hereunder. Such new Notes shall be dated the effective date of such Assignment and Acceptance and shall otherwise be in substantially the form provided in Sections 1.01, 1.03, 1.04 or 1.04A as applicable. Copies of the superseded Notes shall be delivered to the Borrower upon execution and delivery of such new Notes and the original superseded Notes shall be returned to the assignors thereof. (vii) Each Lender may sell participations in all or a portion of its ~~rights~~ Loans or Commitments hereunder to one or more Eligible Assignees each of which assignees shall become a party to this Agreement as a Bank by execution of an assignment agreement, substantially in the form of Exhibit E; provided that, (i) at such time Schedule I shall be deemed modified to reflect the Commitments of such new Bank and of the existing Banks; (ii) the Obligors will issue new Notes to such new Bank and to the assigning Bank upon the request of such new Bank or assigning Bank in replacement of the original Notes, such new Notes to be in conformity with the requirements of Section 2.4 to the extent needed to reflect the ownership of the Loans; (iii) the Administrative Agent shall receive at the time of each such assignment, from the assignee, the payment of a non-refundable assignment fee of U.S.$3,500; and (iv) each such assignment shall be in a minimum amount of U.S.$10,000,000. To the extent of any assignment pursuant to this Section 12.3(b), the assigning Bank shall be relieved of its obligations hereunder with respect to its assigned Commitments and Loans. No transfer or assignment under this ~~Agreement (~~Section 12.3(b) will be effective until recorded by the Administrative Agent on the Register pursuant to Section 12.3(c). Notwithstanding the foregoing, no assignment after Successful Syndication shall increase the withholding tax burden on the Borrower based on the Applicable Law in effect as of the date of such assignment, including, without ~~limitation, all or a portion of the Notes held by it~~limitation any additional amounts payable under Section 4.5(a); provided, however, ~~that~~that such limitation shall not prevent any such assignment, but shall shift the burden of any such increased cost, to the extent such cost relates solely to Applicable Law in effect as of the date of such assignment, to the relevant assignee throughout the remainder of the term of this Agreement. (c) The Borrower hereby designate the Administrative Agent to serve as the Borrower’s agent, solely for purposes of this Section 12.3(c), to maintain a register (the “Register”) on which it will record the Commitments from time to time of each of the Banks, the Loans made by each of the Banks and each repayment in respect of the principal amount of the Loans of each Bank. The requirements of this Section 12.3(c) and Section 12.3(b) are intended to result in the Loans being in “registered form” for purposes of Section 871, Section 881 or any other applicable provision of the Code, and shall be interpreted and applied in a manner consistent therewith. Failure to make any such recordation, or any error in such recordation shall not affect the Borrower’s obligations in respect of the Loans. The Borrower agrees to indemnify the Administrative Agent from and against any and all losses, claims, damages and liabilities of whatsoever nature which may be imposed on, asserted against or incurred by the Administrative Agent in performing its duties under this Section 12.3(c), except to the extent that such losses, claims, damages or liabilities were caused by the gross negligence or willful misconduct of the Administrative Agent. (d) Notwithstanding the foregoing, any Bank may transfer or grant participations in its rights hereunder without the consent of any Obligor. In connection with any such participation, such Bank shall remain a “Bank” for all purposes hereunder and the participant shall not constitute a “Bank” hereunder and no ~~Lender~~ Bank shall transfer or grant any participation under which the participant shall have rights to approve any amendment to or waiver of this Agreement or any other ~~Loan Document,~~ Credit Document except to the extent such amendment or waiver would (Ai) extend the final scheduled maturity of any Loan or Note in which such participant is participating, or reduce the rate or extend the time of payment of interest or fees thereon (except in connection with a waiver of applicability of any post-default increase in interest rates) or reduce the principal amount thereof, or increase the ~~amount of the participant's participation over the amount thereof, or increase the amount of the participant's participation~~ Commitments in which such participant is participating over the amount thereof then in effect (it being understood that no a waiver ~~or modification~~ of any ~~condition precedent, covenant or~~ Default or Event of ~~any mandatory reduction in the aggregate Commitments~~ Default shall not constitute a change in the terms of ~~such participation~~any Commitment, and that an increase in any Commitment ~~or Loan~~ shall be permitted without the consent of any participant if the participant's ’s participation is not increased as a result ~~thereof and that any amendment~~ thereof) or ~~modification to the financial definitions in this Agreement shall not constitute a reduction in any rate of interest or fees for purposes of this clause~~ (~~A)), (B~~ii) consent to the assignment or transfer by ~~the Borrower~~ any Obligor of any of its rights and obligations under this Agreement or (C) release all or substantially all of the Collateral under all of the Security Documents (except as expressly provided in the Security Documents) supporting the Loans hereunder in which such participant is participating or (D) eliminate the rights set forth in Section 1.21Agreement. In the case of any such participation, the participant shall not have any rights under this Agreement or any of the other ~~Loan~~ Credit Documents (the participant's ’s rights against such ~~Lender~~ Bank in respect of such participation to be those set forth in the agreement executed by such ~~Lender~~ Bank in favor of the participant relating thereto) and all amounts payable by the Borrower hereunder shall be determined as if such ~~Lender~~ Bank had not sold such participation, except that the participant shall be entitled to the benefit of Article IV to the extent that such Bank would have been entitled thereto if it had not granted such participation. (~~viii~~e) ~~Except for an assignment made~~ In addition to the assignments and participations permitted under the foregoing provisions of this Section 12.3, any Bank may (~~i) another Lender, (ii) a separately organized branch of a Lender, (iii) a Related Lender Party~~ without notice or ~~(iv) a Qualified Institutional Lender, and except during the existence of a Default, no assignment referred to above shall be permitted without the prior written~~ consent of the ~~Agent~~ Administrative Agent, the Borrower or any other Person and ~~the Borrower, which consent shall not be unreasonably withheld or delayed. (ix~~without payment of any fee) ~~The Borrower may not~~ assign ~~any of its rights or delegate any of its duties or obligations hereunder. (x) To the extent that an assignment of~~ and pledge all or any portion of ~~a Lender's Commitment~~ its Loans and ~~outstanding Loans~~ Notes to any U.S. Federal Reserve Bank as collateral security pursuant to subsection (b) of Article XI or this Article XII would, due to circumstances existing at the time of such assignment, result in costs under Sections 1.11, 1.13 or 1.14 which are increased from those being charged by the respective assigning Lender prior to such assignment, then the Borrower shall not be obligated to pay such increased costs (although the Borrower shall be obligated to pay any other increased costs Regulation A of the ~~type described above resulting from changes after the date~~ Board of Governors of the ~~respective assignment)~~U.S. Federal Reserve System and any operating circular issued by such Federal Reserve Bank. No such assignment shall release the assigning Bank from its obligations hereunder. (xi) Any Lender may, in connection with any assignment or participation pursuant to this Section, disclose to the assignee or participant any information relating to the Companies and the Parent Affiliates furnished to such Lender by or on behalf of the Borrower and such assignee or participant shall treat such information as confidential.

Appears in 1 contract

Samples: Credit Agreement (Gerdau Ameristeel Corp)

Benefit of Agreement Assignments and Participations. (a) This Agreement shall be binding upon and inure to the benefit of the ~~Borrower~~parties hereto, ~~the Lenders and the Agent~~ and their respective successors and ~~permitted~~ assigns, except that the obligation of the Lenders and ~~all subsequent holders~~ any L/C Issuer hereto to make Revolving Advances and other financial accommodations hereunder shall not inure to the benefit of any successors and assigns of the ~~Notes or any portion thereof~~Borrowers. (b) Neither Borrowers nor Parent may assign or transfer any of its interest hereunder without the prior written consent of the Lenders. Each of the Lenders may make, carry or transfer its pro rata share of the Revolving Advances at, to or for the account of any of its branch offices or the office of one or more of its Affiliates. (c) Subject to the terms of this Section 12.15, any Lender may ~~assign its rights and interests under this Agreement~~make an assignment to a Qualified Assignee of, or sale of participations in, at any time or times, the ~~Notes~~ Loan Documents, Revolving Advances, Letter of Credit Obligations and ~~the Security Documents and/or delegate its obligations hereunder and~~ any Revolving Commitment or any portion thereof or interest therein, including any Lender's rights, title, interests, remedies, powers or duties thereunder~~, in whole or in part, and sell participations in the Notes and the Security Documents as security therefor, provided as follows:~~ . Any assignment by a Lender shall: (i) Any such assignment, other than an assignment in whole, made other than to (A) another Lender, (B) a separately organized branch of a Lender or (C) a Related Lender Party, shall reflect an assignment of such assigning Lender's Notes and Commitments which is in an aggregate principal amount of at least $500,000, unless each of the Borrower and the Agent otherwise consents to a lesser amount. (ii) Notwithstanding any provision of this Agreement to the contrary, (A) each Lender may at any time pledge all or any portion of its rights under this Agreement and each of the other Loan Documents, including without limitation its Loans and the Notes held by such Lender, to a Federal Reserve Bank (or equivalent thereof in the case of Lenders chartered outside of the United States) in support of borrowings made by such Lender from such Federal Reserve Bank and (B) any Lender that is a fund or similar investment vehicle that invests in or makes commercial loans may, without require the consent of Agent (which consent shall not be unreasonably withheld or delayed with respect to a Qualified Assignee) and the ~~Agent or the Borrower, pledge all or any portion~~ execution of its Notes or Loans to any holders of obligations owed, or securities issued, by such Person, as security for such obligations or securities, or to any trustee for, or any other representative of, such holders; provided that any foreclosure or similar action by such trustee shall be subject to the provisions of this Section concerning assignments. No pledge pursuant to this subsection an assignment agreement (~~ii) shall release the transferor Lender from any of its obligations and liabilities under the Loan Documents. (iii) Any assignments and/or delegations made hereunder shall be pursuant to~~ an ~~instrument of assignment and acceptance (the~~ "Assignment ~~and Acceptance~~Agreement") substantially in the form ~~of Schedule 12~~ attached hereto as Exhibit 12.15(c) and ~~the parties~~ otherwise in form and substance reasonably satisfactory to, and acknowledged by, Agent; (ii) be conditioned on such assignee Lender representing to each such assignment shall execute and deliver to the Agent for its acceptance the Assignment and Acceptance together with any Note or Notes subject thereto. Upon such execution and delivery, from and after the effective date specified in each Assignment and Acceptance, which effective date shall be at least five (5) Business Days after the execution thereof unless otherwise permitted by the Agent, (A) the assignee thereunder shall become a party hereto and, to the extent provided in such Assignment and Acceptance, have the rights and obligations of a Lender hereunder with applicable Loans as set forth therein and (B) the assigning Lender ~~thereunder shall~~and Agent that it is purchasing the applicable Revolving Advances to be assigned to it for its own account, for investment purposes and not with a view to the ~~extent provided in~~ distribution thereof; (iii) after giving effect to any such partial assignment, be released from its obligations under this Agreement as to that portion of its obligation being so assigned and delegated. The Assignment and Acceptance shall be deemed to amend this Agreement to the extent, and only to the extent, necessary to reflect the addition of the assignee as Lender shall have a ~~Lender~~ Revolving Commitment in an amount at least equal to $5,000,000 and the ~~resulting adjustment of Loans arising from the purchase by and delegation to such assignee of all or a portion of the rights and obligations of such~~ assigning Lender ~~under this Agreement.~~ shall have retained a Revolving Commitment in an amount at least equal to $5,000,000; (iv) ~~The Agent~~include a payment to Agent of an assignment fee of $3,500 and (v) so long as no Event of Default has occurred and is continuing, ~~on behalf~~ require the consent of Borrowers as to the identity of the ~~Borrower, shall maintain at the address~~ Qualified Assignee Lender of the ~~Agent referred to~~ type described in ~~Section 13.03 a copy of each Assignment and Acceptance delivered to it and a register~~ clause (~~the "Register"~~b) ~~for the recordation~~ of the ~~names and addresses~~ definition of ~~the Lenders and the Commitments of~~"Qualified Assignee", ~~and principal amounts of the Loans owing to, and any Notes evidencing the Loans owned by, each Lender from time to time. The entries in the Register~~ which shall not be ~~conclusive, in the absence of manifest error, and the Borrower, the Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of a Loan~~ unreasonably withheld 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 Registerdelayed; provided that no such consent shall be required for an assignment to a Qualified Assignee of the type described in clause (a) of the definition of "Qualified Assignee"; and provided further that an assignment will not be effective unless it is recorded by Agent in the Loan Account. In the case of an assignment by a Lender ~~to any Related Lender Party that is not reflected on the Register~~under this Section 12.15, the assignee shall have, to the extent of such assignment, the same rights, benefits and obligations as all other Lenders hereunder. The assigning Lender shall ~~maintain~~ be relieved of its obligations hereunder with respect to its Revolving Commitment or assigned portion thereof from and after the date of such assignment. Each Borrower hereby acknowledges and agrees that any assignment shall give rise to a ~~comparable register on behalf~~ direct obligation of Borrowers to the assignee and that the assignee shall be considered to be a "Lender". In all instances, each Lender's liability to make Revolving Advances hereunder shall be several and not joint and shall be limited to such Lender's pro rata share of the ~~Agent~~aggregate Revolving Commitment. ~~The Register shall be available for inspection by~~ In the ~~Borrower~~ event Agent or any Lender at assigns or otherwise transfers all or any ~~reasonable time~~ part of the Obligations, Agent or any such Lender shall so notify Borrowers and ~~from time to time~~ Borrowers shall, upon ~~reasonable prior notice. (v) Upon its receipt~~ the request of ~~an Assignment and Acceptance executed by an assigning Lender and~~ Agent or such Lender, execute new Notes in exchange for the ~~assignee together with the Note or~~ Notes, if any, ~~subject to such assignment (or a standard indemnity letter from~~ being assigned. Notwithstanding the ~~respective assigning Lender in respect~~ foregoing provisions of any lost Note or Notes) and payment by the assigning Lender or the assignee to the Agent of registration and processing fees of $3,500 in the aggregate (except with respect to assignments (A) to any Related Lender Party or another Lender or (B) by the Agent, the Syndication Agent or the Documentation Agent, in their capacities as Lenders), the Agent shall promptly accept such Assignment and Acceptance and record the information contained therein in the Register and give notice of such acceptance and recordation to the Lenders and the Borrower. Such Assignment and Acceptance and the assignment evidenced thereby shall only be effective upon appropriate entries with respect to the information contained therein being made in the Register pursuant to subparagraph (iv) above. (vi) Within five (5) Business Days after receipt of such notice, the Borrower shall, if requested by the assignee Lender, execute and deliver to the Agent in exchange for evidence of the delivery to the Agent of a copy of each such surrendered Note, marked "Superseded", one or more new Notes payable to the order of such assignee in an amount equal to the portion of the applicable Commitment assumed and/or Loans purchased by such assignee pursuant to such Assignment and Acceptance and a new Note payable to the order of the assigning Lender in an amount equal to the portion of the applicable Commitment(s) and/or Loans retained by it hereunder. Such new Notes shall be dated the effective date of such Assignment and Acceptance and shall otherwise be in substantially the form provided in Sections 1.01, 1.03, 1.04 or 1.04A as applicable. Copies of the superseded Notes shall be delivered to the Borrower upon execution and delivery of such new Notes and the original superseded Notes shall be returned to the assignors thereof. (vii) Each Lender may sell participations in all or a portion of its rights and obligations under this Agreement (including, without limitation, all or a portion of the Notes held by it); provided, however, that, no Lender shall transfer or grant any participation under which the participant shall have rights to approve any amendment to or waiver of this Agreement or any other Loan Document, except to the extent such amendment or waiver would (A) extend the final scheduled maturity of any Loan or Note in which such participant is participating, or reduce the rate or extend the time of payment of interest or fees thereon (except in connection with a waiver of applicability of any post-default increase in interest rates) or reduce the principal amount thereof, or increase the amount of the participant's participation over the amount thereof, or increase the amount of the participant's participation over the amount thereof then in effect (it being understood that no waiver or modification of any condition precedent, covenant or Default or of any mandatory reduction in the aggregate Commitments shall constitute a change in the terms of such participation, that an increase in any Commitment or Loan shall be permitted without the consent of any participant if the participant's participation is not increased as a result thereof and that any amendment or modification to the financial definitions in this Agreement shall not constitute a reduction in any rate of interest or fees for purposes of this clause (A)), (B) consent to the assignment or transfer by the Borrower of any of its rights and obligations under this Agreement or (C) release all or substantially all of the Collateral under all of the Security Documents (except as expressly provided in the Security Documents) supporting the Loans hereunder in which such participant is participating or (D) eliminate the rights set forth in Section 1.21. In the case of any such participation, the participant shall not have any rights under this Agreement or any of the other Loan Documents (the participant's rights against such Lender in respect of such participation to be those set forth in the agreement executed by such Lender in favor of the participant relating thereto) and all amounts payable by the Borrower hereunder shall be determined as if such Lender had not sold such participation. (viii) Except for an assignment made to (i) another Lender, (ii) a separately organized branch of a Lender, (iii) a Related Lender Party or (iv) a Qualified Institutional Lender, and except during the existence of a Default, no assignment referred to above shall be permitted without the prior written consent of the Agent and the Borrower, which consent shall not be unreasonably withheld or delayed. (ix) The Borrower may not assign any of its rights or delegate any of its duties or obligations hereunder. (x) To the extent that an assignment of all or any portion of a Lender's Commitment and outstanding Loans pursuant to subsection (b) of Article XI or this Article XII would, due to circumstances existing at the time of such assignment, result in costs under Sections 1.11, 1.13 or 1.14 which are increased from those being charged by the respective assigning Lender prior to such assignment, then the Borrower shall not be obligated to pay such increased costs (although the Borrower shall be obligated to pay any other increased costs of the type described above resulting from changes after the date of the respective assignment). (xi) Any Lender may, in connection with any assignment or participation pursuant to this Section, disclose to the assignee or participant any information relating to the Companies and the Parent Affiliates furnished to such Lender by or on behalf of the Borrower and such assignee or participant shall treat such information as confidential.this

Appears in 1 contract

Samples: Credit Agreement (Finlay Enterprises Inc /De)

Benefit of Agreement Assignments and Participations. (a) This Agreement shall be binding upon and inure to the benefit of and be enforceable by the ~~Borrower, the Lenders and the Agent and their~~ respective successors and ~~permitted assigns~~assigns of the parties hereto; provided, ~~and all subsequent holders of~~ however, that the Borrower may not assign or transfer any of its rights, obligations or interest hereunder or under any other Credit Document without the ~~Notes~~ prior written consent of each Lender, other than any assumption, assignment or ~~any portion thereof~~transfer required pursuant to Section 7.8. (b) ~~Each~~ The Lender may at any time assign or participate its Loan or any portion thereof to its Affiliates, provided that until February 6, 2013, any such Affiliate may only assign or participate its Loan to its Affiliates; further provided that the Administrative Agent shall notify the Borrower of any such assignment or participation of a Loan hereunder and the name(s) of the assignee or participant. Following February 6, 2013, each Lender may, in accordance with Applicable Law and this Section, assign its ~~rights and interests under this~~ Loan or any portion thereof to any other Person by execution of an Assignment Agreement, the Notes and the Security Documents and/or delegate its obligations hereunder and thereunder, in whole or in part, and sell participations in the Notes and the Security Documents as security therefor, ; provided ~~as follows~~that: (i) ~~Any~~ any such ~~assignment, other than an~~ partial assignment ~~in whole, made~~ (other than to ~~(A)~~ another Lender) shall be in an amount at least equal to U.S.$1,000,000 or an integral multiple of U.S.$500,000 in excess thereof (or, ~~(B) a separately organized branch of a Lender or (C) a Related Lender Party~~if less, ~~shall reflect an assignment~~ all of such ~~assigning~~ Lender~~'s Notes and Commitments which is in an aggregate principal amount of at least $500,000, unless each of the Borrower and the Agent otherwise consents to a lesser amount.~~’s remaining Loan hereunder), (ii) ~~Notwithstanding any provision of this~~ upon each such assignment, the assignor and assignee shall deliver an Assignment Agreement to the contrary, (A) each Lender may at any time pledge all or any portion of its rights under this Agreement and each of the other Loan Documents, including without limitation its Loans and the Notes held by such Lender, to a Federal Reserve Bank (or equivalent thereof in the case of Lenders chartered outside of the United States) in support of borrowings made by such Lender from such Federal Reserve Bank and (B) any Lender that is a fund or similar investment vehicle that invests in or makes commercial loans may, without the consent of the Agent or the Borrower, pledge all or any portion of its Notes or Loans to any holders of obligations owed, or securities issued, by such Person, as security for such obligations or securities, or to any trustee for, or any other representative of, such holders; provided that any foreclosure or similar action by such trustee shall be subject to the provisions of this Section concerning assignments. No pledge pursuant to this subsection (ii) shall release the transferor Lender from any of its obligations and liabilities under the Loan Documents.Administrative Agent, (iii) ~~Any assignments and/or delegations made hereunder~~ the assignee, if it shall not be ~~pursuant~~ a Lender, shall deliver to the Administrative Agent an ~~instrument of assignment and acceptance~~ Administrative Questionnaire, (~~the "Assignment and Acceptance"~~iv) ~~substantially in the form of Schedule 12 and the parties to~~ each such assignment shall ~~execute and deliver~~ be to an Eligible Assignee (except that such restriction shall not apply during any time following the ~~Agent for its acceptance the Assignment and Acceptance together with any Note or Notes subject thereto. Upon such execution and delivery, from and after the effective~~ date ~~specified in each Assignment and Acceptance, which effective date shall be at least~~ that is five (5) Business Days after the ~~execution thereof unless otherwise permitted~~ Majority Lenders have declared all amounts payable by the Borrower under the Credit Documents to be immediately due and payable). (c) The Borrower shall have the right to replace any Lender which does not agree to an amendment or waiver request (each such Lender, a “Non-Consenting Lender”) with an Eligible Assignee designated by the Borrower. Any replacement of a Lender pursuant to this paragraph shall be (i) made by the Eligible Assignee’s and the Non-Consenting Lender’s entering into an Assignment and Acceptance; (ii) shall close within five (5) days after the Administrative Agent’s receipt of a notice of election to replace such Lender from the Borrower; and (iii) shall only be made upon the Non-Consenting Lender’s being paid in full all principal, interest, and other amounts owed to it as of the effective date of the replacement. (Ad) Upon the effective date of the assignment to be effected by an Assignment Agreement and registration thereof in the Register pursuant to Section 10.3(f), the assignee ~~thereunder~~ shall ~~become a party hereto and~~have, to the extent ~~provided in~~ of such ~~Assignment and Acceptance~~assignment, ~~have~~ the obligations, rights and ~~obligations~~ benefits of a Lender hereunder ~~with applicable Loans as set forth therein~~ holding the Loan (or portion thereof) assigned to it and ~~(B)~~ specified in such Assignment Agreement and the assigning Lender ~~thereunder~~ shall, to the extent ~~provided in~~ of such ~~assignment~~assignment of its Loan, be released from the Loan (or portion thereof) so assigned. Upon its ~~obligations~~ receipt of an Assignment Agreement executed by an assigning Lender and an assignee together with (except in the case of an assignment by a Lender to an Affiliate of such Lender) payment by the assigning or assignee Lender to the Administrative Agent of an assignment fee of U.S.$3,000, the Administrative Agent shall: (A) promptly accept such Assignment Agreement and (B) on the effective date determined pursuant thereto record such assignment in the Register and give notice of such acceptance and recordation to the assigning Lender, its assignee and the Borrower. Notwithstanding anything to the contrary contained herein, no Borrower shall be obligated to pay to any Lender any amount under Sections 3.1, 3.3, 3.4 or 3.5 of this Agreement as that is greater than the amount that the Borrower would have been obligated to that portion of its obligation being so assigned and delegated. The Assignment and Acceptance shall be deemed to amend this Agreement to the extent, and only to the extent, necessary to reflect the addition of the assignee as a Lender and the resulting adjustment of Loans arising from the purchase by and delegation to pay such ~~assignee of all or a portion of the rights and obligations of~~ Lender’s assignor if such assigning Lender had not assigned to such Lender any of its rights under this Agreement, unless at the time such assignment is made: (1) the circumstances giving rise to such greater payments did not exist or (2) the Borrower consents to such greater obligation. Notwithstanding the foregoing, no such assignment shall be allowed if the assignor thereof (if it is assigning less than all of its Loan) would, after such assignment, have less than U.S.$1,000,000 in Loan. Any assignment in contravention of the provisions of this paragraph shall be null and void ab initio. (ive) Upon the request of the assigning Lender and presentment of its existing Note, the Borrower shall execute and deliver, at the Borrower’s expense, one or more new Notes (as requested by the holder thereof) in exchange therefor, in an aggregate principal amount equal to the principal amount of the surrendered Notes. Each such new Note shall be in such principal amount and be payable to such Person as such holder may request. Each such new Note shall be dated and bear interest from the date to which interest shall have been paid on the relevant surrendered Note(s) or dated the date of the relevant surrendered Note(s) if no interest shall have been paid thereon. Notes shall not be issued or transferred in denominations of less than U.S.$1,000,000; provided that if necessary to enable the registration of transfer by a holder of its entire holding of Notes, one Note may be issued in a denomination of less than U.S.$1,000,000. (f) The ~~Agent, on behalf of the Borrower,~~ Administrative Agent shall maintain ~~at the address of the Agent referred to in Section 13.03~~ a copy of each Assignment ~~and Acceptance~~ Agreement delivered to it and a register ~~(the "Register")~~ for the recordation of the names and addresses of the ~~Lenders~~ Lenders, and the ~~Commitments of,~~ commitments and principal ~~amounts~~ amount of the Loans owing to, ~~and any Notes evidencing the Loans owned by,~~ each Lender pursuant to the terms hereof from time to ~~time~~time (the “Register”). The entries in the Register shall be ~~conclusive,~~ conclusive in the absence of manifest ~~error,~~ error and the Borrower, the Administrative Agent and the Lenders ~~shall~~ may treat each Person whose name is recorded in the Register pursuant to the terms hereof as ~~the owner of~~ a ~~Loan or other obligation~~ Lender hereunder ~~as the owner thereof~~ for all purposes of this Agreement and the ~~other Loan Documents~~Relevant Credit Agreement, notwithstanding ~~any~~ notice to the contrary. ~~Any assignment~~ All payments under the Relevant Credit Agreement in respect of ~~any Loan~~ principal or ~~other obligation hereunder~~ interest shall be ~~effective only upon~~ made to the appropriate ~~entries with respect thereto being made~~ Person named in the Register; provided that in the case of an assignment by a Lender to any Related Lender Party that is not reflected on the Register, the assigning Lender shall maintain a comparable register on behalf of the Agent. The Register shall be available for inspection by the Borrower or and any ~~Lender~~ Lender, at any reasonable time and from time to time upon reasonable prior notice. (vg) ~~Upon~~ A Lender may assign its ~~receipt of an Assignment~~ Loans and ~~Acceptance executed~~ its rights and obligations thereunder only by ~~an assigning Lender and the assignee together~~ complying with the ~~Note or Notes, if any, subject to~~ terms of this Agreement. No such assignment ~~(or~~ shall be effected until, and such assignee shall succeed to the rights of a ~~standard indemnity letter from~~ holder only upon, final acceptance and registration of the ~~respective assigning Lender~~ assignment by the Administrative Agent in ~~respect~~ the Register. Prior to the registration of any ~~lost Note or Notes)~~ assignment of Loans by a holder as provided herein, the Administrative Agent may treat the Person in whose name the Lenders are registered as the owner thereof for all purposes and ~~payment by~~ as the ~~assigning Lender or~~ Person entitled to exercise the ~~assignee~~ rights represented thereby, any notice to the Agent of registration and processing fees of $3,500 in the aggregate (except with respect to assignments (A) to any Related Lender Party or another Lender or (B) by the Agent, the Syndication Agent or the Documentation Agent, in their capacities as Lenders), the Agent shall promptly accept such Assignment and Acceptance and record the information contained therein in the Register and give notice of such acceptance and recordation to the Lenders and the Borrower. Such Assignment and Acceptance and the assignment evidenced thereby shall only be effective upon appropriate entries with respect to the information contained therein being made in the Register pursuant to subparagraph (iv) abovecontrary notwithstanding. (vih) Within five (5) Business Days after receipt of such notice, the Borrower shall, if requested by the assignee Lender, execute and deliver to the Agent in exchange for evidence of the delivery to the Agent of a copy of each such surrendered Note, marked "Superseded", one or more new Notes payable to the order of such assignee in an amount equal to the portion of the applicable Commitment assumed and/or Loans purchased by such assignee pursuant to such Assignment and Acceptance and a new Note payable to the order of the assigning If any Lender in an amount equal to the portion of the applicable Commitment(s) and/or Loans retained by it hereunder. Such new Notes shall be dated the effective date of such Assignment and Acceptance and shall otherwise be in substantially the form provided in Sections 1.01, 1.03, 1.04 or 1.04A as applicable. Copies of the superseded Notes shall be delivered to the Borrower upon execution and delivery of such new Notes and the original superseded Notes shall be returned to the assignors thereof. (vii) Each Lender may sell participations in assigns all or a portion of its Loans and its rights and obligations hereunder to any other Person pursuant to the provisions hereof, the assigning Lender shall be relieved of its obligations hereunder with respect to the assigned Loans and Notes, and the assignee shall be a party hereto and, to the extent that Loans and Notes and such other rights and obligations hereunder have been assigned, shall acquire such Loans and Notes and other rights and obligations of a Lender hereunder, and this Agreement shall be deemed to be amended to the extent necessary to reflect the transfer and assignment of such rights and obligations and the addition of such assignee, and any reference to the assigning Lender in this Agreement or the Notes of such Lender shall thereafter refer to such Lender and to such assignee to the extent of their respective interests. (i) Upon receipt by the Administrative Agent of evidence reasonably satisfactory to each of them of the ownership of and the loss, theft, destruction or mutilation of any Notes, and (i) in the case of loss, theft or destruction, of indemnity reasonably satisfactory to each of them; or (ii) in the case of mutilation, upon surrender and cancellation thereof, the Borrower, at its own expense, shall execute and deliver, in lieu thereof, new Notes, dated and bearing interest from the date to which interest shall have been paid on such lost, stolen, destroyed or mutilated Notes or dated the date of such lost, stolen, destroyed or mutilated Notes if no interest shall have been paid thereon. (j) Following February 6, 2013, a Lender may, in accordance with Applicable Law, sell or agree to sell to one or more other Persons (each a “Participant”) a participation in all or any part of the Loans held by it; provided that such Participant shall not have any rights or obligations under this Agreement (~~including, without limitation, all or a portion of~~ the Notes held by it); provided, however, that, no Lender shall transfer or grant any participation under which the participant shall have rights to approve any amendment to or waiver of this Agreement or any other Loan Document, except to the extent such amendment or waiver would (A) extend the final scheduled maturity of any Loan or Note in which such participant is participating, or reduce the rate or extend the time of payment of interest or fees thereon (except in connection with a waiver of applicability of any post-default increase in interest rates) or reduce the principal amount thereof, or increase the amount of the participant's participation over the amount thereof, or increase the amount of the participant's participation over the amount thereof then in effect (it being understood that no waiver or modification of any condition precedent, covenant or Default or of any mandatory reduction in the aggregate Commitments shall constitute a change in the terms of such participation, that an increase in any Commitment or Loan shall be permitted without the consent of any participant if the participant's participation is not increased as a result thereof and that any amendment or modification to the financial definitions in this Agreement shall not constitute a reduction in any rate of interest or fees for purposes of this clause (A)), (B) consent to the assignment or transfer by the Borrower of any of its rights and obligations under this Agreement or (C) release all or substantially all of the Collateral under all of the Security Documents (except as expressly provided in the Security Documents) supporting the Loans hereunder in which such participant is participating or (D) eliminate the rights set forth in Section 1.21. In the case of any such participation, the participant shall not have any rights under this Agreement or any of the other Loan Documents (the participant's Participant’s rights against such Lender in respect of such participation to be those set forth in the ~~agreement~~ agreements executed by such Lender in favor of the ~~participant relating thereto) and all~~ Participant). All amounts payable to any Lender under this Agreement in respect of the Loans held by ~~the Borrower hereunder~~ it, shall be determined as if such Lender had not sold or agreed to sell any participations in such Loan and as if such Lender were funding such Loans in the same way that it is funding the portion of such Loans in which no participations have been sold (or if all of its Loans has been so participated, in the same way that it was funding such Loans at the time of such participation). In no event shall a Lender that sells a participation agree with the Participant to take or refrain from taking any action hereunder except that such Lender may agree with the Participant that it shall not, without the consent of the Participant, agree to anything requiring the vote of 100% of the applicable Lenders hereunder. (~~viii~~k) ~~Except for an assignment made~~ In addition to the assignments and participations permitted under the foregoing provisions of this Section 10.3, any Lender may (~~i) another Lender, (ii) a separately organized branch of a Lender, (iii) a Related Lender Party~~ without notice or ~~(iv) a Qualified Institutional Lender, and except during the existence of a Default, no assignment referred to above shall be permitted without the prior written~~ consent of the Administrative Agent or any other Person and ~~the Borrower, which consent shall not be unreasonably withheld~~ without payment of any fee) assign and pledge all or ~~delayed. (ix) The Borrower may not assign~~ any portion of its ~~rights~~ Loans and Notes to any U.S. Federal Reserve Bank (or ~~delegate~~ other central banking authority) as collateral security pursuant to Regulation A of the Board of Governors of the U.S. Federal Reserve System and any of operating circular issued by such Federal Reserve Bank. No such assignment shall release the assigning Lender from its ~~duties or~~ obligations hereunder. (x) To the extent that an assignment of all or any portion of a Lender's Commitment and outstanding Loans pursuant to subsection (b) of Article XI or this Article XII would, due to circumstances existing at the time of such assignment, result in costs under Sections 1.11, 1.13 or 1.14 which are increased from those being charged by the respective assigning Lender prior to such assignment, then the Borrower shall not be obligated to pay such increased costs (although the Borrower shall be obligated to pay any other increased costs of the type described above resulting from changes after the date of the respective assignment). (xil) Any Lender may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section, disclose to the assignee or participant or proposed assignee or participant any information relating to the ~~Companies and the Parent Affiliates~~ Borrower furnished to such Lender by or on behalf of the ~~Borrower and~~ Borrower; provided that, before any such disclosure, the assignee or participant or proposed assignee or participant shall ~~treat~~ agree to preserve the confidentiality of any Confidential Information relating to the Borrower received by it from such ~~information as confidential~~Lender on the terms set forth in Section 10.13.

Appears in 1 contract

Samples: Backstop Loan Facility Agreement (Votorantim Cimentos S.A.)

Benefit of Agreement Assignments and Participations. (a) This Agreement shall be binding upon and inure to the benefit of the Borrower, the Lenders and the Agent and their respective successors and permitted assigns, and all subsequent holders of any of the Notes or any portion thereof. (b) Each Lender may assign its rights and interests under this Agreement, the Notes and the Security Documents and/or delegate its obligations hereunder and thereunder, in whole or in part, and sell participations in the Notes and the Security Documents as security therefor, provided as follows: (i) Any such assignment, other than an assignment in whole, made other than to (A) another Lender, (B) a separately organized branch of a Lender or (C) a Related Lender Party, shall reflect an assignment of such assigning Lender's Notes ~~and Commitments~~ which is in an aggregate principal amount of at least $~~500,000~~2,500,000, unless each of the Borrower and the Agent otherwise consents to a lesser amount. (ii) Notwithstanding any provision of this Agreement to the contrary, (A) each Lender may at any time pledge all or any portion of its rights under this Agreement and each of the other Loan Documents, including without limitation its Loans and the Notes held by such Lender, to a Federal Reserve Bank (or equivalent thereof in the case of Lenders chartered outside of the United States) in support of borrowings made by such Lender from such Federal Reserve Bank and (B) any Lender that is a fund ~~or similar investment vehicle~~ that invests in ~~or makes commercial~~ bank loans may, without the consent of the Agent or the Borrower, pledge all or any portion of its Notes or Loans to any holders of obligations owed, or securities issued, by such ~~Person~~fund, as security for such obligations or securities, or to any trustee for, or any other representative of, such holders; provided that any foreclosure or similar action by such trustee shall be subject to the provisions of this Section concerning assignments. No pledge pursuant to this subsection (ii) shall release the transferor Lender from any of its obligations and liabilities under the Loan Documents. (iii) Any assignments and/or delegations made hereunder shall be pursuant to an instrument of assignment and acceptance (the "Assignment and Acceptance") substantially in the form of Schedule 12 and the parties to each such assignment shall execute and deliver to the Agent for its acceptance the Assignment and Acceptance together with any Note or Notes subject thereto. Upon such execution and delivery, from and after the effective date specified in each Assignment and Acceptance, which effective date shall be at least five (5) Business Days after the execution thereof unless otherwise permitted by the Agent, (A) the assignee thereunder shall become a party hereto and, to the extent provided in such Assignment and Acceptance, have the rights and obligations of a Lender hereunder ~~with applicable Loans as set forth therein~~ and (B) the assigning Lender thereunder shall, to the extent provided in such assignment, be released from its obligations under this Agreement as to that portion of its obligation being so assigned and delegated. The Assignment and Acceptance shall be deemed to amend this Agreement to the extent, and only to the extent, necessary to reflect the addition of the assignee as a Lender and the resulting adjustment of Loans arising from the purchase by and delegation to such assignee of all or a portion of the rights and obligations of such assigning Lender under this AgreementLender. (iv) The Agent, on behalf of the Borrower, shall maintain at the address of the Agent referred to in Section ~~13.03~~ 13.3 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 Commitments of~~Lenders, and principal amounts of the Loans owing to, and any Notes evidencing the Loans owned by, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, the 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; provided that in the case of an assignment by a Lender to any Related Lender Party that is not reflected on the Register, the assigning Lender shall maintain a comparable register on behalf of the Agent. 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. (v) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and the assignee together with the Note or ~~Notes, if any,~~ Notes subject to such assignment (or a standard indemnity letter from the respective assigning Lender in respect of any lost Note or Notes) and payment by the assigning Lender or the assignee to the Agent of registration and processing fees of $3,500 in the aggregate (except with respect to assignments (A) to any Related Lender Party or another Lender or (B) by the Agent, the Syndication Agent or the Documentation Agent, in their capacities as Lenders), the Agent shall promptly accept such Assignment and Acceptance and record the information contained therein in the Register and give notice of such acceptance and recordation to the Lenders and the Borrower. Such Assignment and Acceptance and the assignment evidenced thereby shall only be effective upon appropriate entries with respect to the information contained therein being made in the Register pursuant to subparagraph (iv) above. (vi) Within five (5) Business Days after receipt of such notice, the Borrower ~~shall, if requested by the assignee Lender,~~ shall execute and deliver to the Agent in exchange for evidence of the delivery to the Agent of a copy of each such surrendered Note, marked "Superseded"), one or more new Notes payable to the order of such assignee in an amount equal to the portion of the applicable ~~Commitment assumed and/or~~ Loans purchased by such assignee pursuant to such Assignment and Acceptance and a new Note payable to the order of the assigning Lender in an amount equal to the portion of the applicable ~~Commitment(s) and/or~~ Loans retained by it hereunder. Such new Notes shall be dated the effective date of such Assignment and Acceptance and shall otherwise be in substantially the form provided in ~~Sections 1.01, 1.03, 1.04 or 1.04A as applicable~~Section 1. 1. Copies of the superseded Notes shall be delivered to the Borrower upon execution and delivery of such new Notes and the original superseded Notes shall be returned to the assignors thereof. (vii) Each Lender may sell participations in all or a portion of its rights and obligations under this Agreement (including, without limitation, all or a portion of the Notes held by it); provided, however, that, no Lender shall transfer or grant any participation under which the participant shall have rights to approve any amendment to or waiver of this Agreement or any other Loan Document, except to the extent such amendment or waiver would (A) extend the final scheduled maturity of any Loan or Note in which such participant is participating, or reduce the rate or extend the time of payment of interest or fees thereon (except in connection with a waiver of applicability of any post-default increase in interest rates) or reduce the principal amount thereof, or increase the amount of the participant's participation over the amount thereof, or increase the amount of the participant's participation over the amount thereof then in effect (it being understood that no waiver or modification of any condition precedent, covenant or Default ~~or of any mandatory reduction in the aggregate Commitments~~ shall constitute a change in the terms of such participation, that an increase in any ~~Commitment or~~ Loan shall be permitted without the consent of any participant if the participant's participation is not increased as a result thereof and that any amendment or modification to the financial definitions in this Agreement shall not constitute a reduction in any rate of interest or fees for purposes of this clause (A)), (B) consent to the assignment or transfer by the Borrower of any of its rights and obligations under this Agreement or (C) release all or substantially all of the Collateral under all of the Security Documents (except as expressly provided in the Security Documents) supporting the Loans hereunder in which such participant is ~~participating or (D) eliminate the rights set forth in Section 1.21~~participating. In the case of any such participation, the participant shall not have any rights under this Agreement or any of the other Loan Documents (the participant's rights against such Lender in respect of such participation to be those set forth in the agreement executed by such Lender in favor of the participant relating thereto) and all amounts payable by the Borrower hereunder shall be determined as if such Lender had not sold such participation. (viii) Except for an assignment made to (i) another Lender, (ii) a separately organized branch of a ~~Lender,~~ Lender or (iii) a Related Lender ~~Party or (iv) a Qualified Institutional Lender~~Party, and except during the existence of a Default, no assignment referred to above shall be permitted without the prior written consent of the Agent and the Borrower, which consent shall not be unreasonably withheld or delayed. (ix) The Borrower may not assign any of its rights or delegate any of its duties or obligations hereunder. (x) To the extent that an assignment of all or any portion of a Lender's ~~Commitment and~~ outstanding Loans pursuant to subsection (b) of Article XI 11 or this Article ~~XII~~ 12 would, due to circumstances existing at the time of such assignment, result in costs under Sections ~~1.11~~1.7, ~~1.13~~ 1.9 or ~~1.14~~ 1.10 which are increased from those being charged by the respective assigning Lender prior to such assignment, then the Borrower shall not be obligated to pay such increased costs (although the Borrower shall be obligated to pay any other increased costs of the type described above resulting from changes after the date of the respective assignment). (xi) Any Lender may, in connection with any assignment or participation pursuant to this Section, disclose to the assignee or participant any information relating to the Companies ~~and the Parent Affiliates~~ furnished to such Lender by or on behalf of the Borrower and such assignee or participant shall treat such information as confidential.

Appears in 1 contract

Samples: 364 Day Credit Agreement (Pegasus Communications Corp /)

Benefit of Agreement Assignments and Participations. (a) This Agreement shall be binding upon and inure to the benefit of ~~the~~ Borrower, ~~the Lenders and the Agent~~ Lenders, Agents and their respective successors and permitted assigns, and all subsequent holders of any of the Notes or any portion thereof. (b) Each Lender may assign its rights and interests under this Agreement, the Notes and the Security Documents and/or delegate its obligations hereunder and thereunder, in whole or in part, and sell participations in ~~the Notes~~ its Commitment(s) and ~~the Security Documents as security therefor~~its Loans, provided as follows: (i) Any such assignment, other than an assignment in whole, made other than to (A) another Lender, (B) a separately organized branch of a Lender or (C) a Related Lender Party, shall reflect an assignment of such assigning Lender's ~~Notes~~ Note and ~~Commitments~~ Commitment which is in an aggregate principal amount of at least $~~500,000~~1,000,000, ~~unless each~~ and if greater, shall be in an integral multiple of ~~the Borrower and the Agent otherwise consents to a lesser amount~~$100,000. (ii) Notwithstanding any provision of this Agreement to the contrary, (A) each Lender may at any time pledge all or any portion of its rights under this Agreement and each of the other Loan Documents, including without limitation its Loans and the Notes held by such Lender, to a Federal Reserve Bank (or equivalent thereof in the case of Lenders chartered outside of the United States) in support of borrowings made by such Lender from such Federal Reserve ~~Bank and~~ Bank, (B) with the consent of each Agent, any Lender ~~that~~ which is a fund ~~or similar investment vehicle that invests in or makes commercial loans may, without the consent of the Agent or the Borrower,~~ may pledge all or any portion of its Notes or Loans to its trustee in support of its obligations to its trustee, and (C) any ~~holders of obligations owed, or securities issued, by~~ such ~~Person, as security for~~ pledgee may enforce such obligations or securities, or to any trustee for, or any other representative of, such holders; provided that any foreclosure or similar action by such trustee shall be subject to the provisions of this Section concerning assignmentspledge. No pledge pursuant to this subsection (ii) ), and no enforcement thereof by the pledgee, shall release the transferor Lender from any of its obligations and liabilities under the Loan Documents. (iii) Any assignments and/or delegations made hereunder shall be pursuant to an instrument of assignment and acceptance (the "Assignment and Acceptance") substantially in the form of Schedule 12 and the parties to each such assignment shall execute and deliver to ~~the~~ Collateral Agent for its acceptance the Assignment and Acceptance together with any Note or Notes subject thereto. Upon such execution and delivery, from and after the effective date specified in each Assignment and Acceptance, which effective date shall be at least five (5) Business Days after the execution ~~thereof unless otherwise permitted by the Agent~~thereof, (A) the assignee thereunder shall become a party ~~hereto~~ hereto, to the Loan Documents, and, to the extent provided in such Assignment and Acceptance, have the rights and obligations of a Lender hereunder with the applicable ~~Loans as~~ Commitment set forth therein and (B) the assigning Lender thereunder shall, to the extent provided in such assignment, be released from its obligations under this Agreement as to that portion of its obligation being so assigned and delegated. The Assignment and Acceptance shall be deemed to amend this Agreement to the extent, and only to the extent, necessary to reflect the addition of the assignee as a Lender and the resulting adjustment of ~~Loans~~ Commitments arising from the purchase by and delegation to such assignee of all or a portion of the rights and obligations of such assigning Lender under this Agreement. (iv) The Agent, on behalf of the Borrower, shall maintain at the address of the Agent referred to in Section 13.03 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 Commitments of, and principal amounts of the Loans owing to, and any Notes evidencing the Loans owned by, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, the 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; provided that in the case of an assignment by a Lender to any Related Lender Party that is not reflected on the Register, the assigning Lender shall maintain a comparable register on behalf of the Agent. 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. (v) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and the assignee together with the Note ~~or Notes, if any,~~ subject to such assignment (or a standard indemnity letter from the respective assigning Lender in respect of any lost ~~Note or Notes~~Note) and payment by the ~~assigning Lender or the~~ assignee to ~~the~~ Collateral Agent of a registration and processing ~~fees~~ fee of $~~3,500 in the aggregate (except with respect to assignments (A) to any Related Lender Party or another Lender or (B) by the Agent~~5,000, ~~the Syndication Agent or the Documentation Agent, in their capacities as Lenders), the~~ Collateral Agent shall ~~promptly~~ accept such Assignment and ~~Acceptance and record the information contained therein~~ Acceptance; provided, however, that in ~~the Register and give notice~~ lieu of such ~~acceptance~~ processing fee, on not more than two (2) occasions involving assignments to an Affiliate, the assigning Lender shall be obligated to pay to Collateral Agent only Collateral Agent's out-of-pocket expenses incurred in documenting and ~~recordation to the Lenders and the Borrower~~reviewing such assignment (including reasonable attorneys' fees). ~~Such~~ Promptly upon delivering such Assignment and Acceptance to Collateral Agent, the assigning Lender shall give notice thereof to Borrowers and ~~the assignment evidenced thereby shall only be effective upon appropriate entries with respect to the information contained therein being made in the Register pursuant to subparagraph (iv) above. (vi)~~ Collateral Agent. Within five (5) Business Days after receipt of such notice, ~~the Borrower shall, if requested by the assignee Lender,~~ Borrowers shall execute and deliver to ~~the~~ Collateral Agent in exchange for ~~evidence of the delivery to the Agent of a copy of~~ each such surrendered ~~Note, marked "Superseded", one or more~~ Note a new ~~Notes~~ Note payable to the order of such assignee in an amount equal to the portion of the ~~applicable~~ Commitment assumed ~~and/or Loans purchased~~ by such assignee pursuant to such Assignment and Acceptance and a new Note payable to the order of the assigning Lender in an amount equal to the portion of the ~~applicable Commitment(s) and/or Loans~~ Commitment retained by it hereunder. Such new Notes shall be dated the effective date of such Assignment and Acceptance and shall otherwise be in substantially the form provided in ~~Sections 1.01, 1.03, 1.04 or 1.04A as applicable~~Section 2.01. ~~Copies of the superseded~~ Canceled Notes shall be ~~delivered~~ returned to Borrowers upon the ~~Borrower upon~~ execution and delivery of such new ~~Notes and the original superseded Notes shall be returned to the assignors thereof~~Notes. (~~vii~~v) Each Lender may sell participations in all or a portion of its rights and obligations under this Agreement (including, without limitation, all or a portion of its Commitments and the Notes held by it); provided, however, that, no (A) the selling Lender shall ~~transfer or grant any participation~~ remain obligated under ~~which the participant shall have rights to approve any amendment to or waiver of~~ this Agreement to the extent as it would if it had not sold such participation, (B) the selling Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (C) at no time shall the selling Lender agree with such participant to take or refrain from taking any action hereunder or under any other Loan Document, except that the selling Lender may agree not to consent, without such participant's consent, to any of the actions referred to Article XI, to the extent ~~such amendment or waiver would (A) extend~~ that the final scheduled maturity of any Loan or Note in which such participant is participating, or reduce the rate or extend the time of payment of interest or fees thereon (except in connection with a waiver of applicability of any post-default increase in interest rates) or reduce the principal amount thereof, or increase the amount of the participant's participation over the amount thereof, or increase the amount of the participant's participation over the amount thereof then in effect (it being understood that no waiver or modification of any condition precedent, covenant or Default or of any mandatory reduction in the aggregate Commitments shall constitute a change in the terms of such participation, that an increase in any Commitment or Loan shall be permitted without same require the consent of any participant if the participant's participation is not increased as a result thereof and that any amendment or modification to the financial definitions in this Agreement shall not constitute a reduction in any rate of interest or fees for purposes of this clause (A))each Lender hereunder, (B) consent to the assignment or transfer by the Borrower of any of its rights and obligations under this Agreement or (C) release all or substantially all of the Collateral under all of the Security Documents (except as expressly provided in the Security Documents) supporting the Loans hereunder in which such participant is participating or (D) eliminate the rights set forth in Section 1.21. In the case of any such participation, the participant shall not have any rights under this Agreement or any of the other Loan Documents (the participant's rights against such Lender in respect of such participation to be those set forth in the agreement executed by such Lender in favor of the participant relating thereto) and all amounts payable by ~~the~~ Borrower hereunder shall be determined as if such Lender had not sold such ~~participation~~participation and no participant shall be entitled to receive any greater amount pursuant to this Agreement than the selling Lender would have been entitled to receive in respect of the amount of the participation transferred by such Lender to such participant had no such transfer occurred, and (E) Borrowers, Collateral Agent, and the other Lenders shall continue to deal solely and directly with the selling Lender in connection with such Lender's rights and obligations under this Agreement. (~~viii~~vi) Except for an assignment made to (iA) another Lender, (iiB) a separately organized branch of a Lender, (~~iii~~C) a Related Lender Party or (ivD) ~~a Qualified Institutional Lender, and except during the existence of a Default~~an Eligible Transferee, no assignment referred to above shall be permitted without the prior written consent of ~~the Agent and the Borrower~~each Agent, which consent shall not be unreasonably withheld or delayed. (ixvii) ~~The Borrower~~ Borrowers may not assign any of ~~its~~ their rights or delegate any of ~~its~~ their duties or obligations hereunder. (xviii) To the extent that an assignment of all or any portion of a Lender's Commitment and outstanding Loans pursuant to subsection (b) of Article XI or this Article XII would, due to circumstances existing at the time of such assignment, result in costs under Sections ~~1.11~~2.07, ~~1.13~~ 2.09 or ~~1.14~~ 2.10 which are increased from those being charged by the ~~respective~~ assigning Lender prior to such assignment, then ~~the Borrower~~ Borrowers shall not be obligated to pay such increased costs (although ~~the Borrower~~ Borrowers shall be obligated to pay any other increased costs of the type described above resulting from changes after the date of the respective assignment). (xiix) Any Lender may, in connection with any assignment or participation pursuant to this Section, disclose to the assignee or participant any information relating to the ~~Companies~~ Borrowers and ~~the Parent~~ their Affiliates furnished to such Lender by or on behalf of ~~the Borrower~~ Borrowers and such assignee or participant shall treat such information as confidential. (x) No Lender shall sell any Participation or Loan interest to a Person that, by virtue of ownership of debt and/or equity in EMHC, would be deemed to hold an attributable ownership interest in any of the Borrowers in violations of applicable FCC rules and regulations.

Appears in 1 contract

Samples: Credit Agreement (Equity Media Holdings CORP)

Benefit of Agreement Assignments and Participations. (a) This Agreement shall be binding upon and inure to the benefit of the Borrower, the Lenders and the Agent and their respective successors and ~~permitted~~ assigns, and all subsequent holders of any of the Notes or any portion ~~thereof~~hereof. (b) Each Lender may assign its rights and interests under this Agreement, the Notes and the Security Documents and/or delegate its obligations hereunder and thereunder, in whole or in part, and sell participations in the Notes and the Security Documents as security therefor, provided as follows: (i) Any such ~~assignment,~~ assignment (other than ~~an assignment in whole,~~ of all of a Lender's Notes and Commitments) made other than to ~~(A)~~ another ~~Lender, (B) a separately organized branch of a~~ Lender or ~~(C)~~ a Related Lender ~~Party,~~ Party shall reflect an assignment of such assigning Lender's Notes and Commitments which is in an aggregate principal amount of at least $~~500,000~~5,000,000, ~~unless each~~ and if greater, shall be an integral multiple of ~~the Borrower and the Agent otherwise consents to a lesser amount~~$1,000,000. (ii) Notwithstanding any provision of this Agreement to the contrary, ~~(A)~~ each Lender may at any time ~~pledge~~ assign all or any portion of its rights under this Agreement and each of the other Loan Documents, ~~including~~ including, without ~~limitation its Loans and~~ limitation, the Notes held by such Lender, to a Federal Reserve Bank (or equivalent thereof in the case of Lenders chartered outside of the United States) in support of borrowings made by such Lender from such Federal Reserve Bank and (B) any Lender that is a fund or similar investment vehicle that invests in or makes commercial loans may, without the consent of the Agent or the Borrower, pledge all or any portion of its Notes or Loans to any holders of obligations owed, or securities issued, by such Person, as security for such obligations or securities, or to any trustee for, or any other representative of, such holders); provided that ~~any foreclosure or similar action by~~ no such ~~trustee shall be subject to the provisions of this Section concerning assignments. No pledge pursuant to this subsection (ii)~~ assignment shall release ~~the transferor~~ a Lender from any of its obligations and liabilities under the Loan Documents. Any Federal Reserve Bank (or equivalent thereof) which receives such an assignment from any Lender may make further assignments of such rights in accordance with the provisions of this Section. (iii) Any assignments and/or delegations made hereunder shall be pursuant to an instrument of assignment and acceptance (the "Assignment ---------- and Acceptance") substantially in the form of ~~Schedule 12~~ SCHEDULE 13(b)(iii) and the -------------- ------------------ parties to each such assignment shall execute and deliver to the Agent for its acceptance the Assignment and Acceptance together with any Note or Notes subject thereto. Upon such execution and delivery, from and after the effective date specified in each Assignment and Acceptance, which effective date shall be at least five (5) Business Days after the execution ~~thereof unless otherwise permitted by the Agent~~thereof, (A) the assignee thereunder shall become a party hereto and, to the extent provided in such Assignment and Acceptance, have the rights and obligations of a Lender hereunder with ~~applicable~~ Commitments and outstanding Loans as set forth therein and (B) the assigning Lender thereunder shall, to the extent provided in such assignment, be released from its obligations under this Agreement as to that portion of its obligation being so assigned and delegated. The Assignment and Acceptance shall be deemed to amend this Agreement to the extent, and only to the extent, necessary to reflect the addition of the assignee as a Lender and the resulting adjustment of Commitments and outstanding Loans arising from the purchase by and delegation to such assignee of all or a portion of the rights and obligations of such assigning Lender under this Agreement. (iv) The Agent, on behalf of the Borrower, shall maintain at the address of the Agent referred to in Section 13.03 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 Commitments of, and principal amounts of the Loans owing to, and any Notes evidencing the Loans owned by, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, the 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; provided that in the case of an assignment by a Lender to any Related Lender Party that is not reflected on the Register, the assigning Lender shall maintain a comparable register on behalf of the Agent. 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. (v) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and the assignee together with the ~~Note or Notes, if any,~~ Note(s) subject to such assignment ~~(or a standard indemnity letter from the respective assigning Lender in respect of any lost Note or Notes)~~ and payment by ~~the assigning Lender or~~ the assignee to the Agent of a registration and processing ~~fees~~ fee of $~~3,500 in~~ 3,000, the ~~aggregate (except with respect~~ Agent shall accept such Assignment and Acceptance. Promptly upon delivering such Assignment and Acceptance to ~~assignments (A) to any Related Lender Party or another Lender or (B) by~~ the Agent, the ~~Syndication Agent or~~ assigning Lender shall give notice thereof to the ~~Documentation Agent, in their capacities as Lenders),~~ Borrower and the ~~Agent shall promptly accept such~~ other Lenders pursuant to a Notice of Assignment and Acceptance ~~and record the information contained therein~~ substantially in the ~~Register and give notice~~ form of ~~such acceptance and recordation to the Lenders and the Borrower~~SCHEDULE 13(b)(iv). Such Assignment and Acceptance and the assignment evidenced thereby shall only be effective upon appropriate entries with respect to the information contained therein being made in the Register pursuant to subparagraph (iv) above. (vi) Within ------------------ five (5) Business Days after receipt of such notice, the Borrower ~~shall, if requested by the assignee Lender,~~ shall execute and deliver to the Agent in exchange for ~~evidence of the delivery to the Agent of a copy of each~~ such surrendered ~~Note, marked "Superseded",~~ Note(s) one or more new Notes payable to the order of such assignee in an amount equal to the portion of the ~~applicable Commitment assumed and/or~~ Commitments assumed, and the Loans ~~purchased~~ purchased, by such assignee pursuant to such Assignment and Acceptance and a one or more new ~~Note~~ Notes payable to the order of the assigning Lender in an amount equal to the portion of the ~~applicable Commitment(s) and/or~~ Commitments and outstanding Loans retained by it hereunder. ~~Such~~ Each new ~~Notes~~ Note shall be dated the effective date of such Assignment and Acceptance and shall otherwise be in substantially the form provided in ~~Sections~~ SECTION 1.01~~, 1.03, 1.04 or 1.04A as applicable~~. ~~Copies of~~ The canceled Note(s) surrendered by the ~~superseded Notes~~ assigning Lender shall be ~~delivered~~ returned to the Borrower upon the execution and delivery of such new ~~Notes and the original superseded Notes shall be returned to the assignors thereof~~Note(s). (~~vii~~v) Each Lender may sell participations in all or a portion of its rights and obligations under this Agreement (including, without limitation, all or a portion of its Commitments and the Notes held by it); provided, however, that, no (A) the selling Lender shall ~~transfer or grant any participation~~ remain obligated under ~~which the participant shall have rights to approve any amendment to or waiver of~~ this Agreement to the extent as it would if it had not sold such participation, (B) the selling Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (C) at no time shall the selling Lender agree with such participant to take or refrain from taking any action hereunder or under any other Loan Document, except that the selling Lender may agree not to consent, without such participant's consent, to any of the actions referred to in ARTICLE XII, to the extent ~~such amendment or waiver would (A) extend~~ that the final scheduled maturity of any Loan or Note in which such participant is participating, or reduce the rate or extend the time of payment of interest or fees thereon (except in connection with a waiver of applicability of any post-default increase in interest rates) or reduce the principal amount thereof, or increase the amount of the participant's participation over the amount thereof, or increase the amount of the participant's participation over the amount thereof then in effect (it being understood that no waiver or modification of any condition precedent, covenant or Default or of any mandatory reduction in the aggregate Commitments shall constitute a change in the terms of such participation, that an increase in any Commitment or Loan shall be permitted without same require the consent of any participant if the participant's participation is not increased as a result thereof and that any amendment or modification to the financial definitions in this Agreement shall not constitute a reduction in any rate of interest or fees for purposes of this clause (A))each Lender hereunder, (B) consent to the assignment or transfer by the Borrower of any of its rights and obligations under this Agreement or (C) release all or substantially all of the Collateral under all of the Security Documents (except as expressly provided in the Security Documents) supporting the Loans hereunder in which such participant is participating or (D) eliminate the rights set forth in Section 1.21. In the case of any such participation, the participant shall not have any rights under this Agreement or any of the other Loan Documents (the participant's rights against such Lender in respect of such participation to be those set forth in the agreement executed by such Lender in favor of the participant relating thereto) and all amounts payable by the Borrower hereunder shall be determined as if such Lender had not sold such ~~participation~~participation and no participant shall be entitled to receive any greater amount pursuant to this Agreement than the selling Lender would have been entitled to receive in respect of the amount of the participation transferred by such Lender to such participant had no such transfer occurred, and (E) the Borrower, the Agent and the other Lenders shall continue to deal solely and directly with the selling Lender in connection with such Lender's rights and obligations under this Agreement. (~~viii~~vi) Except for an assignment made to ~~(i) another Lender, (ii)~~ a separately organized branch or affiliate of a Lender, (~~iii~~x) ~~a Related Lender Party or (iv) a Qualified Institutional Lender, and except during the existence of a Default,~~ no assignment referred to above shall be permitted without prior written consent of the Agent, which consent will not be unreasonably withheld or delayed and (z) no participation referred to above shall be sold without providing prior written notice thereof to the Agent, such notice to include the amount of the participation sold and the identity of the participant, and an undertaking by the selling Lender to provide to the Agent such additional information regarding such, anticipation as to Agent may reasonably request. (vii) Except during the existence of an Event of Default, no assignment by a Lender referred to above, other than to a Related Lender Party and other than under paragraph (b)(ii) of this Section, shall be permitted without the prior written consent of ~~the Agent and~~ the Borrower, which consent shall not be unreasonably withheld or delayed. (ixviii) The Borrower may not assign any of its rights or delegate any of its duties or obligations hereunder. (x) To the extent that an assignment of all or any portion of a Lender's Commitment and outstanding Loans pursuant to subsection (b) of Article XI or this Article XII would, due to circumstances existing at the time of such assignment, result in costs under Sections 1.11, 1.13 or 1.14 which are increased from those being charged by the respective assigning Lender prior to such assignment, then the Borrower shall not be obligated to pay such increased costs (although the Borrower shall be obligated to pay any other increased costs of the type described above resulting from changes after the date of the respective assignment). (xiix) Any Lender may, in connection with any assignment or participation pursuant to this Section, disclose to the assignee or participant any information relating to any of the Companies ~~and the Parent Affiliates~~ furnished to such Lender by or on behalf of the Borrower and such assignee or participant shall treat such information as confidential.

Appears in 1 contract

Samples: Credit Agreement (Voyager Net Inc)

Benefit of Agreement Assignments and Participations. ~~(a)~~ 12.1. Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of ~~the Borrower~~Obligors, ~~the Lenders~~ Agent and ~~the Agent~~ Secured Parties and their respective successors and ~~permitted~~ assigns, except that (a) no Obligor shall have the right to assign its rights or delegate its obligations under any Credit Documents, and ~~all subsequent holders of any of the Notes or any portion thereof.~~ (b) Each Lender may assign its rights and interests under this Agreement, the Notes and the Security Documents and/or delegate its obligations hereunder and thereunder, in whole or in part, and sell participations in the Notes and the Security Documents as security therefor, provided as follows: (i) Any such assignment, other than an any assignment ~~in whole, made other than to (A) another Lender, (B) a separately organized branch of~~ by a Lender ~~or (C) a Related Lender Party, shall reflect an assignment of such assigning Lender's Notes and Commitments~~ must be made in compliance with Section 12.3. Agent may treat the Person which ~~is in an aggregate principal amount of at least $500,000, unless each of the Borrower and the Agent otherwise consents to a lesser amount. (ii) Notwithstanding~~ made any ~~provision of this Agreement to the contrary, (A) each Lender may at any time pledge all or any portion of its rights under this Agreement and each of the other~~ Loan Documents, including without limitation its Loans and the Notes held by such Lender, to a Federal Reserve Bank (or equivalent thereof in the case of Lenders chartered outside of the United States) in support of borrowings made by such Lender from such Federal Reserve Bank and (B) any Lender that is a fund or similar investment vehicle that invests in or makes commercial loans may, without the consent of the Agent or the Borrower, pledge all or any portion of its Notes or Loans to any holders of obligations owed, or securities issued, by such Person, as security for such obligations or securities, or to any trustee for, or any other representative of, such holders; provided that any foreclosure or similar action by such trustee shall be subject to the provisions of this Section concerning assignments. No pledge pursuant to this subsection (ii) shall release the transferor Lender from any of its obligations and liabilities under the Loan Documents. (iii) Any assignments and/or delegations made hereunder shall be pursuant to an instrument of assignment and acceptance (the "Assignment and Acceptance") substantially in the form of Schedule 12 and the parties to each such assignment shall execute and deliver to the Agent for its acceptance the Assignment and Acceptance together with any Note or Notes subject thereto. Upon such execution and delivery, from and after the effective date specified in each Assignment and Acceptance, which effective date shall be at least five (5) Business Days after the execution thereof unless otherwise permitted by the Agent, (A) the assignee thereunder shall become a party hereto and, to the extent provided in such Assignment and Acceptance, have the rights and obligations of a Lender hereunder with applicable Loans as set forth therein and (B) the assigning Lender thereunder shall, to the extent provided in such assignment, be released from its obligations under this Agreement as to that portion of its obligation being so assigned and delegated. The Assignment and Acceptance shall be deemed to amend this Agreement to the extent, and only to the extent, necessary to reflect the addition of the assignee as a Lender and the resulting adjustment of Loans arising from the purchase by and delegation to such assignee of all or a portion of the rights and obligations of such assigning Lender under this Agreement. (iv) The Agent, on behalf of the Borrower, shall maintain at the address of the Agent referred to in Section 13.03 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 Commitments of, and principal amounts of the Loans owing to, and any Notes evidencing the Loans owned by, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, the 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~~until such Person makes an assignment in accordance with Section 12.3. Any ~~assignment~~ authorization or consent of ~~any Loan or other obligation hereunder~~ a Lender shall be ~~effective only upon appropriate entries with respect thereto being made~~ conclusive and binding on any subsequent transferee or assignee of such Lender. 12.2. Participations. 12.2.1. Permitted Participants; Effect. Subject to Sections 12.3.3, any Lender may at any time, without the consent of, or notice to, the Borrowers, sell to a financial institution ("Participant") a participating interest in the ~~Register; provided that in the case~~ rights and obligations of ~~an assignment~~ such Lender under any Credit Documents. Despite any sale by a Lender of participating interests to ~~any Related Lender Party that is not reflected on~~ a Participant, such Xxxxxx's obligations under the ~~Register~~Credit Documents shall remain unchanged, ~~the assigning~~ such Lender shall maintain a comparable register on behalf of the Agent. 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. (v) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and the assignee together with the Note or Notes, if any, subject to such assignment (or a standard indemnity letter from the respective assigning Lender in respect of any lost Note or Notes) and payment by the assigning Lender or the assignee remain solely responsible to the Agent of registration and processing fees of $3,500 in the aggregate (except with respect to assignments (A) to any Related Lender Party or another Lender or (B) by the Agent, the Syndication Agent or the Documentation Agent, in their capacities as Lenders), the Agent shall promptly accept such Assignment and Acceptance and record the information contained therein in the Register and give notice other parties hereto for performance of such ~~acceptance and recordation to~~ obligations, such Lender shall remain the Lenders and the Borrower. Such Assignment and Acceptance and the assignment evidenced thereby shall only be effective upon appropriate entries with respect to the information contained therein being made in the Register pursuant to subparagraph (iv) above. (vi) Within five (5) Business Days after receipt of such notice, the Borrower shall, if requested by the assignee Lender, execute and deliver to the Agent in exchange for evidence of the delivery to the Agent of a copy of each such surrendered Note, marked "Superseded", one or more new Notes payable to the order of such assignee in an amount equal to the portion of the applicable Commitment assumed and/or Loans purchased by such assignee pursuant to such Assignment and Acceptance and a new Note payable to the order of the assigning Lender in an amount equal to the portion of the applicable Commitment(s) and/or Loans retained by it hereunder. Such new Notes shall be dated the effective date of such Assignment and Acceptance and shall otherwise be in substantially the form provided in Sections 1.01, 1.03, 1.04 or 1.04A as applicable. Copies of the superseded Notes shall be delivered to the Borrower upon execution and delivery of such new Notes and the original superseded Notes shall be returned to the assignors thereof. (vii) Each Lender may sell participations in all or a portion holder of its ~~rights~~ Loans and ~~obligations under this Agreement (including~~Commitments for all purposes, without limitation, all or a portion of the Notes held by it); provided, however, that, no Lender shall transfer or grant any participation under which the participant shall have rights to approve any amendment to or waiver of this Agreement or any other Loan Document, except to the extent such amendment or waiver would (A) extend the final scheduled maturity of any Loan or Note in which such participant is participating, or reduce the rate or extend the time of payment of interest or fees thereon (except in connection with a waiver of applicability of any post-default increase in interest rates) or reduce the principal amount thereof, or increase the amount of the participant's participation over the amount thereof, or increase the amount of the participant's participation over the amount thereof then in effect (it being understood that no waiver or modification of any condition precedent, covenant or Default or of any mandatory reduction in the aggregate Commitments shall constitute a change in the terms of such participation, that an increase in any Commitment or Loan shall be permitted without the consent of any participant if the participant's participation is not increased as a result thereof and that any amendment or modification to the financial definitions in this Agreement shall not constitute a reduction in any rate of interest or fees for purposes of this clause (A)), (B) consent to the assignment or transfer by the Borrower of any of its rights and obligations under this Agreement or (C) release all or substantially all of the Collateral under all of the Security Documents (except as expressly provided in the Security Documents) supporting the Loans hereunder in which such participant is participating or (D) eliminate the rights set forth in Section 1.21. In the case of any such participation, the participant shall not have any rights under this Agreement or any of the other Loan Documents (the participant's rights against such Lender in respect of such participation to be those set forth in the agreement executed by such Lender in favor of the participant relating thereto) and all amounts payable by ~~the Borrower hereunder~~ Obligors shall be determined as if such Lender had not sold such ~~participation. (viii) Except for an assignment made to (i) another Lender, (ii) a separately organized branch of a Lender, (iii) a Related Lender Party or (iv) a Qualified Institutional Lender~~participating interests, and ~~except during~~ Obligors and Agent shall continue to deal solely and directly with such Lender in connection with the Credit Documents. For the avoidance of doubt, each Lender shall be responsible for the indemnity and obligations under Section 11.6 and Section 13.3 without regard to the existence of ~~a Default, no assignment referred to above~~ any participation. Each Lender shall be ~~permitted without~~ solely responsible for notifying its Participants of any matters under the ~~prior written consent of the~~ Credit Documents, and Agent and the ~~Borrower, which consent~~ other Lenders shall not ~~be unreasonably withheld~~ have any obligation or ~~delayed. (ix) The Borrower may not assign~~ liability to any of its rights or delegate any of its duties or obligations hereunder. (x) To the extent that an assignment of all or any portion of a Lender's Commitment and outstanding Loans pursuant to subsection (b) of Article XI or this Article XII would, due to circumstances existing at the time of such assignment, result in costs under Sections 1.11, 1.13 or 1.14 which are increased from those being charged by the respective assigning Lender prior to such assignment, then the Borrower shall not be obligated to pay such increased costs (although the Borrower Participant. Each Participant shall be obligated to pay any other increased costs of the type described above resulting from changes after the date of the respective assignment). (xi) Any Lender may, in connection with any assignment or participation pursuant to this Section, disclose entitled to the ~~assignee or participant any information relating~~ benefits of Section 5.8 (subject to the ~~Companies~~ requirements and limitations therein and Section 5.9 (it being understood that the ~~Parent Affiliates furnished~~ documentation required under Section 5.9 shall be delivered to ~~such Lender by or on behalf of~~ the ~~Borrower and such assignee or participant shall treat such information as confidential.~~participating Lender)), Section 3.6.1

Appears in 1 contract

Samples: Credit Agreement (Calumet Specialty Products Partners, L.P.)

Common use of Benefit of Agreement Assignments and Participations Clause in Contracts