Benefit of Agreement Assignments and Participations. (a) This Agreement shall be binding upon and inure to the benefit of and be enforceable by the respective successors and assigns of the parties hereto; provided, however, that (i) no Credit Party may assign or transfer any of its rights, obligations or interests hereunder or under any other Credit Document without the prior written consent of the Lenders, (ii) although any Lender may 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 Revolving Loan Commitments hereunder except as provided in Sections 2.12 and 14.04(b)) and the transferee, assignee or participant, as the case may be, shall not constitute a “Lender” hereunder and (iii) 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 Credit Document except to the extent such amendment or waiver would (x) 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 Commitment Commission thereon (except (m) in connection with a waiver of applicability of any post-default increase in interest 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 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), (y) consent to the assignment or transfer by the Borrower of any of its rights and obligations under this Agreement or (z) release all or substantially all of the Collateral under all of the Security Documents (except as expressly provided in the Credit Documents) securing the Loans hereunder in which such participant is participating. In the case of any such participation, the participant shall not have any rights under this Agreement or any of the other Credit 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. (b) 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) 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) 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 Revolving Loan Commitments (and/or outstanding Loans, as the case may be), (iii) the consent of the Administrative Agent shall be required in connection with any assignment pursuant to preceding clause (y) and the 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 (iv) 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 obligations hereunder with respect to its assigned Revolving Loan Commitments and outstanding Loans. At the time of each assignment pursuant to this Section 14.04(b) to a Person which is not already a Lender hereunder, 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 Revolving Loan Commitments and related outstanding Obligations pursuant to Section 2.12 or this Section 14.04(b) would, at the time of such assignment, result in increased costs under Section 2.09 or 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, 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). (c) Nothing in this Agreement shall prevent or prohibit any Lender 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 support of its obligations to such trustee, such collateral agent or a holder of such obligations, as the case may be. No pledge pursuant to this clause (c) shall release the transferor Lender from any of its obligations hereunder.
Appears in 1 contract
Benefit of Agreement Assignments and Participations. (a) This Agreement shall be binding upon and inure to the benefit of and be enforceable by the respective successors and assigns of the parties hereto; provided, however, provided that (i) no Credit Party the Borrower may not assign or transfer any of its rights, obligations or interests interest hereunder or under any other Credit Document without the prior written consent of the Lenders, .
(iib) although any Any Lender may transfermake, 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 grant participations in its rights hereunderan Affiliate of an existing Lender, such Lender shall remain a “Lender” for all purposes hereunder (and may consent not transfer to be unreasonably withheld, conditioned or assign delayed, after consultation with the Borrower) to one or more banks or other entities all or any a portion of its Revolving Loan Commitments hereunder except as provided in Sections 2.12 rights and 14.04(b)) obligations under this Agreement, the Notes and the transferee, assignee Letters of Credit; provided that no such assignment shall be for less than $5,000,000 of such Lender's Commitments or participantLoans, as the case may be. Upon such execution, delivery and acceptance, from and after the effective date (the "Effective Date") of such Assignment and Acceptance (x) the assignee thereunder shall be a party hereto, and, to the extent that rights and obligations hereunder have been assigned to and assumed by it pursuant to such Assignment and Acceptance, such assignee shall have the rights and obligations of a Lender hereunder and (y) the Lender assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's rights and obligations under this Agreement, 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, (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 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 constitute 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 for the recordation of the names and addresses of the Lenders and the Commitments of, and principal amount of the Loans owing to, each Lender from time to time (the "Register"). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower and each Secured Party may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register and copies of each Assignment and Acceptance shall be available for inspection by the Borrower, the Issuing Bank or any Lender at any reasonable time and from time to time upon reasonable prior notice.
(f) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender, together with the Note or Notes subject to such assignment, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit O hereto, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) no give prompt notice thereof to the Issuing Bank and the Borrower. Within five (5) Business Days after its receipt of such notice, the Borrower shall execute and deliver to the Administrative Agent in exchange for the surrendered Note or Notes a new Note or Notes to the order of such assignee in an amount equal to the Commitment or Commitments assumed by it pursuant to such Assignment and Acceptance and, if the assigning Lender has retained a Commitment or Commitments hereunder, a new Note or Notes to the order of the assigning Lender in an amount equal to the 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 of the Note or Notes subject to such assignments.
(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 that (i) such Lender's obligations under this Agreement (including, without limitation, its Commitment) shall remain unchanged, (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 Credit Document except to the extent such amendment or waiver would (xA) 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 Commitment Commission thereon (except (m) in connection with a waiver of applicability of any post-default increase in interest 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 any installment of principal of the participant’s participation over the amount thereof then Loans 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 which 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)participating, (yC) consent reduce the interest rate applicable to the assignment or transfer by the Borrower of Loans in which such participant is participating, (D) reduce any of its rights and obligations under this Agreement fees payable hereunder, or (zE) release all or substantially all of the Collateral under all of the Security Documents (except as expressly provided in the Credit Documents) securing the Loans hereunder in which such participant is participating. In the case of any such participation, the participant shall not have any rights under this Agreement or any of the other Credit 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.
(bh) Notwithstanding Each Lender agrees that, without 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) 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 prior written consent of the Borrower (which consent shall and the Administrative Agent, it will not be unreasonably withheld make any assignment hereunder in any manner or delayed and shall not be required if under any Event of Default is then in existence) allcircumstances that would require registration or qualification of, or if less than allfilings in respect of, a portion equal to at least $5,000,000 in any Loan, Note or other Obligation under the aggregate for securities laws of the assigning Lender United States of America 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 state.
(i) Any Lender may at such any 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) 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 Revolving Loan Commitments (and/or outstanding Loans, as the case may be), (iii) the consent of the Administrative Agent shall be required in connection with any assignment pursuant to preceding clause (y) and the 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 (iv) 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 obligations hereunder with respect to its assigned Revolving Loan Commitments and outstanding Loans. At the time of each assignment pursuant to this Section 14.04(b) to a Person which is not already a Lender hereunder, 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 Revolving Loan Commitments and related outstanding Obligations pursuant to Section 2.12 or this Section 14.04(b) would, at the time of such assignment, result in increased costs under Section 2.09 or 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, 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).
(c) Nothing in this Agreement shall prevent or prohibit any Lender 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 assign all or any portion of its Loans rights under this Agreement and Notes the other Financing Documents to its trustee or the Federal Reserve Bank of the United States; provided, that any payment in respect of such assigned rights made by the Borrower to a collateral agent providing credit or credit support to such the assigning Lender in support accordance with the terms of its this Agreement shall satisfy the Borrower's obligations to such trustee, such collateral agent or a holder hereunder in respect of such obligations, as assigned rights to the case may beextent of such payment. No pledge pursuant to this clause (c) such assignment shall release the transferor assignor Lender from any of its obligations hereunder.
(j) After the 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 other cases, for processing each assignment made pursuant to this Section 9.06.
Appears in 1 contract
Benefit of Agreement Assignments and Participations. (a) This Agreement shall be binding upon and inure to the benefit of the Borrowers, the Lenders, the Agent and be enforceable by the their respective successors and assigns assigns, and all subsequent holders of any of the parties hereto; providedNotes or any portion hereof.
(b) Each Lender may assign its rights and interests under this Agreement, howeverthe Notes and the Security Documents in whole or in part, that and sell participations in the Notes and the Security Documents as security therefor, PROVIDED as follows:
(i) no Credit Party may assign No Lender shall make any assignment (other than assignment in full) other than to a separately organized branch or transfer any of its rights, obligations or interests hereunder or under any other Credit Document without the prior written consent an Affiliate of the Lenderssame 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) although Any such assignment made other than to a separately organized branch, or an Affiliate of; a Lender shall reflect an assignment of such assigning Lender's Notes which is in an aggregate principal amount of at least $5,000,000, and if greater, shall be an integral multiple of $1,000,000.
(iii) Notwithstanding any provision of this Agreement to the contrary, each Lender may transfer, assign or grant participations in its rights hereunder, such Lender shall remain a “Lender” for all purposes hereunder (and may not transfer or at any time assign all or any portion of its Revolving rights under this Agreement and each of the other Loan Commitments Documents, including, without 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); provided that no such assignment shall release 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.
(iv) Any assignments made hereunder except as provided shall be pursuant to an instrument of assignment and acceptance (the "ASSIGNMENT AND ACCEPTANCE") substantially in Sections 2.12 and 14.04(b)) the form of Schedule 12.01 and the transfereeparties 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 two (2) Business Days after the execution thereof; (A) the assignee or participantthereunder shall become a party hereto, as to the case may beLoan Documents and to the Intercreditor Agreement and, shall not constitute a “Lender” hereunder and (iii) 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 Credit Document except to the extent provided in such amendment or waiver would (x) extend Assignment and Acceptance, have the final scheduled maturity rights and obligations of any Loan or Note in which such participant is participating, or reduce the rate or extend the time of payment of interest or Commitment Commission thereon (except (m) in connection a Lender hereunder with a waiver of applicability of any post-default increase in interest rates commitment as set forth therein and (nB) that any amendment or modification the assigning Lender thereunder shall, to the financial definitions 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 not constitute a reduction in be deemed to amend this Agreement to the rate of interest for purposes of this clause (x)) or reduce extent, and only to the principal amount thereofextent, or increase necessary to reflect the amount addition of the participant’s participation over assignee as a Lender and the amount thereof then in effect resulting adjustment of 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.
(it being understood that a waiver v) Upon its receipt of any Default or Event of Default or an Assignment and Acceptance executed by an assigning Lender and the assignee together with the Note subject to such assignment and payment by the assignee to the Agent of a mandatory reduction in registration and processing fee of $2,000.00, the Total Commitment Agent shall not constitute a change in accept such Assignment and Acceptance. Promptly upon delivering such Assignment and Acceptance to the terms Agent, the assigning Lender shall give notice thereof to the Borrowers and the other Lenders. Within five (5) Business Days after receipt of such participationnotice, the Borrowers shall execute and that deliver to the Agent in exchange for such surrendered Note(s) a new Note or Notes payable to the order of such assignee in an increase amount equal to the portion of the Loan(s) assumed by such assignee pursuant to such Assignment and Acceptance and a new Note or Notes payable to the order of the assigning Lender in any Revolving Loan Commitment or Loan an amount equal to the portion of the Loans retained by it hereunder. Such new Notes shall be permitted without dated the consent effective date of any participant if such Assignment and Acceptance and shall otherwise be in substantially the participant’s participation is not increased as a result thereof), (y) consent form provided in Article II. The canceled Notes surrendered by the assigning Lender shall be returned to the assignment Borrowers upon the execution and delivery of such new Notes.
(vi) Each Lender may sell participations in all or transfer by the Borrower of any a portion of its rights and obligations under this Agreement or (z) release including, without limitation, all or substantially all a portion of its Commitments and the Collateral Notes held by it); PROVIDED, HOWEVER, that, (A) the selling Lender shall remain obligated under all of this Agreement to the Security Documents (except extent as expressly provided in the Credit Documents) securing the Loans hereunder in which such participant is participating. In the case of any 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 shall to take or refrain from taking any action hereunder or under any other Loan Document, except that the selling Lender may agree not have any rights under this Agreement or to consent, without such participant's consent, to any of the other Credit Documents actions referred to ARTICLE XI, to the extent that the same require the consent of each Lender hereunder, (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 theretoD) and all amounts payable by the Borrower Borrowers hereunder shall be determined as if such Lender had not sold such participationparticipation 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.
(bvii) Notwithstanding Except during the foregoingexistence of an Event of Default, any no assignment by a Lender (referred to above other than to a separately organized branch 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) parent company so long as such parent company is solvent and/or any affiliate Affiliate of such Lender which is at least 50% owned by such Lender or its parent company and other than under paragraph (so long as such affiliate is solventb)(iii) or (ii) in hereof shall be permitted without 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 prior written 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) 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 Revolving Loan Commitments (and/or outstanding Loans, as the case may be), (iii) the consent of the Administrative Agent shall be required in connection with any assignment pursuant to preceding clause (y) and the consent of the Issuing Lender shall be required in connection with any assignment pursuant to preceding clauses (x) and (y) (in each caseAgent, which consent shall not be unreasonably withheld or delayed).
(viii) No Borrower may assign any of its rights or delegate any of its duties or obligations hereunder.
(ix) Any Lender may, and (iv) 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 in connection with any assignment or participation pursuant to this Section 14.04(b)Section, the assigning Lender shall be relieved of its obligations hereunder with respect to its assigned Revolving Loan Commitments and outstanding Loans. At the time of each assignment pursuant to this Section 14.04(b) to a Person which is not already a Lender hereunder, the respective assignee Lender shall, disclose to the extent legally entitled to do so, comply with Section 5.04(b). To the extent that an assignment of all assignee or participant any portion of a Lender’s Revolving Loan Commitments and related outstanding Obligations pursuant to Section 2.12 or this Section 14.04(b) would, at the time of such assignment, result in increased costs under Section 2.09 or 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, in accordance with and pursuant information relating 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).
(c) Nothing in this Agreement shall prevent or prohibit any Lender 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 Borrowers furnished to such Lender in support by or on behalf of its obligations to the Borrowers and such trustee, assignee or participant shall treat such collateral agent or a holder of such obligations, information as the case may be. No pledge pursuant to this clause (c) shall release the transferor Lender from any of its obligations hereunderconfidential.
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 respective successors and assigns of the parties hereto, provided that Borrower may not assign or transfer any of its interest hereunder without the 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 all or a portion of its interests, rights and obligations under this Agreement (including all or a portion of any of its Commitments and the Loans and Letter of Credit Obligations at the time owing to it and the Notes held by it) to any financial institution; provided, however, that (i) no Credit Party may assign or transfer any of its rights, obligations or interests hereunder or under any other Credit Document without the Agent and Borrower must give their prior written consent of the Lenders, (ii) although any Lender may transfer, assign or grant participations in its rights hereunder, to such Lender shall remain a “Lender” for all purposes hereunder (and may not transfer or assign all or any portion of its Revolving Loan Commitments hereunder except as provided in Sections 2.12 and 14.04(b)) and the transferee, assignee or participant, as the case may be, shall not constitute a “Lender” hereunder and (iii) 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 Credit Document except to the extent such amendment or waiver would (x) 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 Commitment Commission thereon (except (m) in connection with a waiver of applicability of any post-default increase in interest 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 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), (y) consent to the assignment or transfer by the Borrower of any of its rights and obligations under this Agreement or (z) release all or substantially all of the Collateral under all of the Security Documents (except as expressly provided in the Credit Documents) securing the Loans hereunder in which such participant is participating. In the case of any such participation, the participant shall not have any rights under this Agreement or any of the other Credit 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.
(b) 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) 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 delayed) unless such assignment is to an Affiliate of the assigning Lender, (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 Agent) shall not be less than an amount equal to $10,000,000 or greater integral multiplies thereof, and (iii) the parties to each such assignment shall execute and deliver to the Agent an Assignment and Acceptance, together with the Note or Notes subject to such assignment and, unless such assignment is to an Affiliate of such Lender, a processing and recordation fee of $3,000. Borrower shall not be responsible for such processing and recordation fee or any costs or expenses incurred by any Lender or the Agent in connection with such assignment. 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, the assignee thereunder shall be a party hereto and to the extent of the interest assigned by such Assignment and Acceptance, have the rights and obligations of a Lender under this Agreement. Notwithstanding the foregoing, the assigning Lender must retain after the consummation of such Assignment and Acceptance, a minimum aggregate amount of Commitments of $5,000,000 or such lesser amount shown on the signature page of such Lender; provided, however, no such minimum amount shall be required if with respect to any such assignment made at any time there exists an Event of Default is then hereunder. Within five (5) Business Days after receipt of the notice and the Assignment and Acceptance, Borrower, at its own expense, shall execute and deliver to the Agent, in existence) all, exchange for the surrendered Note or if less than allNotes, a portion new Note or Notes to the order of such assignee in a principal amount equal to at least $5,000,000 in the aggregate for applicable Commitments assumed by it pursuant to such Assignment and Acceptance and new Note or Notes to the assigning Lender in the amount of its retained Commitment or assigning Lenders, of such Revolving Loan Commitments and outstanding Commitments. Such new Note or Notes shall be in an aggregate principal amount equal to the aggregate principal amount of Loans hereunder such surrendered Note or Notes, shall be dated the date of the surrendered Note or Notes which they replace, and shall otherwise be in substantially the form attached hereto.
(d) Each Lender may, without the consent of Borrower or the Agent, sell participations to one or more Eligible Transferees banks or other entities in all or a portion of its rights and obligations under this Agreement (treating including all or a portion of its Revolving Credit Commitments and the Loans owing to it and the Notes held by it), provided, however, that (i) no Lender may sell a participation in its aggregate Commitments (after giving effect to any fund that invests permitted assignment hereof) in bank loans and any other fund that invests an amount in bank loans and is managed or advised by the same investment advisor excess of fifty percent (50%) of such fund or by aggregate Commitments, provided, however, sales of participations to an Affiliate of such investment advisor as a single Eligible Transferee)Lender shall not be included in such calculation; provided, each of which assignees shall become a party to this Agreement as a Lender by execution of an Assignment and Assumption Agreementhowever, provided that (i) at no such time Schedule I maximum amount shall be deemed modified applicable to reflect the Revolving Loan Commitments (and/or outstanding Loans, as the case may be) any such participation sold at any time there exists an Event of such new Lender and of the existing LendersDefault hereunder, (ii) upon the surrender of the relevant Notes assigned by the such 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)'s obligations under this Agreement shall remain unchanged, (iii) the consent of the Administrative Agent shall be required in connection with any assignment pursuant to preceding clause (y) and the consent of the Issuing such Lender shall be required in connection with any assignment pursuant remain solely responsible to preceding clauses (x) and (y) (in each case, which consent shall not be unreasonably withheld or delayed)the other parties hereto for the performance of such obligations, and (iv) the Administrative Agent shall receive at the time of each such assignment, from the assigning participating bank 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 obligations hereunder with respect to its assigned Revolving Loan Commitments and outstanding Loans. At the time of each assignment pursuant to this Section 14.04(b) to a Person which is not already a Lender hereunder, 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 Revolving Loan Commitments and related outstanding Obligations pursuant to Section 2.12 or this Section 14.04(b) would, at the time of such assignment, result in increased costs under Section 2.09 or 2.10 from those being charged by the respective assigning Lender prior to such assignment, then the Borrower other entity shall not be obligated to pay such increased costs (although the Borrower, in accordance with and pursuant entitled to the benefit (except through its selling Lender) of the cost protection provisions contained in Article IV of this Agreement, and (v) Borrower and the Agent and other Lenders shall continue to deal solely and directly with each Lender in connection with such Lender's 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 waiver of any 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).
(ce) Nothing Any Lender or participant may, in connection with the assignment or participation or proposed assignment or participation, pursuant to this Agreement Section, disclose to the assignee or participant or proposed assignee or participant any information relating to Borrower or the other Consolidated Companies furnished to such Lender by or on behalf of Borrower or any other Consolidated Company. With respect to any disclosure of confidential, non-public, proprietary information, such proposed assignee or participant shall prevent 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 prohibit assignee shall agree not to disclose any Lender from pledging its Loans and Notes hereunder of such information except (i) to directors, employees, auditors or counsel to whom it is necessary to show such information, each of whom shall be informed of the confidential nature of the information, (ii) in any statement or testimony pursuant to a Federal Reserve Bank in support subpoena or order by any court, governmental body or other agency asserting jurisdiction over such entity, or as otherwise required by law (provided prior notice is given to Borrower and the Agent unless otherwise prohibited by the subpoena, order or law), and (iii) upon the request or demand of borrowings made any regulatory agency or authority with proper jurisdiction. The proposed participant or assignee shall further agree to return all documents or other written material and copies thereof received from any Lender, the Agent or Borrower relating to such confidential information unless otherwise properly disposed of by such entity.
(f) Any 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), may at any Lender which is a fund may pledge time assign all or any portion of its Loans rights in this Agreement and the Notes issued to its trustee or it to a collateral agent providing credit or credit support to Federal Reserve Bank; provided that no such Lender in support of its obligations to such trustee, such collateral agent or a holder of such obligations, as the case may be. No pledge pursuant to this clause (c) assignment shall release the transferor Lender from any of its obligations hereunder.
(g) If any Lender requests compensation pursuant to Section 3.07(b), Section 3.10(a) or Section 3.16, or the obligations of any Lender to make Eurodollar Advances, or to continue or to convert Base Rate Advances into, Eurodollar Advances, shall be suspended pursuant to Section 3.09(b) or Section 3.10(b), then and in such event, upon request from the Borrower delivered to such Lender and the Agent, such Lender shall assign, in accordance with the provisions of Section 10.06(c), all of its rights and obligations under this Agreement and the other Credit Documents to another Lender or other financial institution selected by the Borrower and consented to by the Agent in consideration for the payment by such assignee to the Lender of the principal of and interest on the outstanding Loans accrued to the date of such assignment, together with any and all other amounts owing to such Lender under any provisions of this Agreement or the other Credit Documents accrued to the date of such assignment, and the assumption of such Lender's Revolving Credit Commitment and Letter of Credit Exposure hereunder.
Appears in 1 contract
Benefit of Agreement Assignments and Participations. (a) This Agreement shall be binding upon and inure to the benefit of and be enforceable by the respective successors and assigns of the parties hereto, provided that Borrower may not assign or transfer any of its interest hereunder without the 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 all or a portion of its interests, rights and obligations under this Agreement (including all or a portion of its Commitment and the Loans at the time owing to it and the Notes held by it) to any financial institution; provided, however, that (i) no Credit Party may assign or transfer any the Agent and, except during the continuance of its rights, obligations or interests hereunder or under any other Credit Document without the prior written consent of the Lenders, (ii) although any Lender may 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 Revolving Loan Commitments hereunder except as provided in Sections 2.12 and 14.04(b)) and the transferee, assignee or participant, as the case may be, shall not constitute a “Lender” hereunder and (iii) 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 Credit Document except to the extent such amendment or waiver would (x) 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 Commitment Commission thereon (except (m) in connection with a waiver of applicability of any post-default increase in interest 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 then in effect (it being understood that a waiver of any Default or Event of Default or of a mandatory reduction in Default, 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), (y) Borrower must give their prior written consent to the such assignment or transfer by the Borrower of any of its rights and obligations under this Agreement or (z) release all or substantially all of the Collateral under all of the Security Documents (except as expressly provided in the Credit Documents) securing the Loans hereunder in which such participant is participating. In the case of any such participation, the participant shall not have any rights under this Agreement or any of the other Credit 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.
(b) 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) 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 delayed) unless such assignment is to an Affiliate of the assigning Lender, (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 Agent) shall not be required if any Event of Default is then in existence) all, or if less than allan amount equal to $10,000,000 or greater integral multiplies thereof, and (iii) the parties to each such assignment shall execute and deliver to the Agent an Assignment and Acceptance, together with the Note or Notes subject to such assignment and, unless such assignment is to an Affiliate of such Lender, a portion processing and recordation fee of $2,500. Borrower shall not be responsible for such processing and recordation fee or any costs or expenses incurred by any Lender or the Agent in connection with such assignment. 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, the assignee thereunder shall be a party hereto and to the extent of the interest assigned by such Assignment and Acceptance, have the rights and obligations of a Lender under this Agreement. Within five (5) Business Days after receipt of the notice and the Assignment and Acceptance, Borrower, at its own expense, shall execute and deliver to the Agent, in exchange for the surrendered Note or Notes, a new Note or Notes to the order of such assignee in a principal amount equal to at least $5,000,000 in the aggregate for applicable Commitments assumed by it pursuant to such Assignment and Acceptance and new Note or Notes to the assigning Lender in the amount of its retained Commitment or assigning Lenders, of such Revolving Loan Commitments and outstanding Commitments. Such new Note or Notes shall be in an aggregate principal amount equal to the aggregate principal amount of Loans hereunder such surrendered Note or Notes, shall be dated the date of the surrendered Note or Notes which they replace, and shall otherwise be in substantially the form attached hereto.
(d) Each Lender may sell participations to one or more Eligible Transferees banks or other entities in all or a portion of its rights and obligations under this Agreement (treating including all or a portion of its Commitments in the Loans owing to it and the Notes held by it), provided, however, that (i) no Lender may sell a participation in its aggregate Commitments (after giving effect to any fund that invests permitted assignment hereof) in bank loans and any other fund that invests an amount in bank loans and is managed or advised by the same investment advisor excess of fifty percent (50%) of such fund or by aggregate Commitments, provided, however, sales of participations to an Affiliate of such investment advisor as a single Eligible Transferee)Lender shall not be included in such calculation and shall not require the consent of the Borrower; provided, each of which assignees shall become a party to this Agreement as a Lender by execution of an Assignment and Assumption Agreementhowever, provided that (i) at no such time Schedule I maximum amount shall be deemed modified applicable to reflect the Revolving Loan Commitments (and/or outstanding Loans, as the case may be) any such participation sold at any time there exists an Event of such new Lender and of the existing LendersDefault hereunder, (ii) upon the surrender of the relevant Notes assigned by the such 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)'s obligations under this Agreement shall remain unchanged, (iii) the consent of the Administrative Agent shall be required in connection with any assignment pursuant to preceding clause (y) and the consent of the Issuing such Lender shall be required in connection with any assignment pursuant remain solely responsible to preceding clauses (x) and (y) (in each case, which consent shall not be unreasonably withheld or delayed)the other parties hereto for the performance of such obligations, and (iv) the Administrative Agent shall receive at the time of each such assignment, from the assigning participating bank 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 obligations hereunder with respect to its assigned Revolving Loan Commitments and outstanding Loans. At the time of each assignment pursuant to this Section 14.04(b) to a Person which is not already a Lender hereunder, 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 Revolving Loan Commitments and related outstanding Obligations pursuant to Section 2.12 or this Section 14.04(b) would, at the time of such assignment, result in increased costs under Section 2.09 or 2.10 from those being charged by the respective assigning Lender prior to such assignment, then the Borrower other entity shall not be obligated to pay such increased costs (although the Borrower, in accordance with and pursuant entitled to the benefit (except through its selling Lender) of the cost protection provisions contained in Article 4. of this Agreement, and (v) Borrower and the Agent and other Lenders shall continue to deal solely and directly with each Lender in connection with such Lender's 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 waiver of any 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).
(ce) Nothing Any Lender or participant may, in connection with the assignment or participation or proposed assignment or participation, pursuant to this Agreement Section, disclose to the assignee or participant or proposed assignee or participant any information relating to Borrower or the other Consolidated Companies furnished to such Lender by or on behalf of Borrower or any other Consolidated Company. With respect to any disclosure of confidential, non-public, proprietary information, such proposed assignee or participant shall prevent 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 prohibit assignee shall agree not to disclose any Lender of such information except as permitted by Section 11.15. hereof. The proposed participant or assignee shall further agree to return all documents or other written material and copies thereof received from pledging its Loans and Notes hereunder any Lender, the Agent or Borrower relating to a Federal Reserve Bank in support such confidential information unless otherwise properly disposed of borrowings made by such entity.
(f) Any 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), may at any Lender which is a fund may pledge time assign all or any portion of its Loans rights in this Agreement and the Notes issued to its trustee or it to a collateral agent providing credit or credit support to Federal Reserve Bank; provided that no such Lender in support of its obligations to such trustee, such collateral agent or a holder of such obligations, as the case may be. No pledge pursuant to this clause (c) assignment shall release the transferor Lender from any of its obligations hereunder.
(g) If (i) any Taxes referred to in Section 4.8.(b) have been levied or imposed so as to require withholdings and reductions by the Borrower and payment by the Borrower of additional amounts to any Lender as a result thereof or any Lender shall make demand for payment of any material additional amounts as compensation for increased costs pursuant to Section 4.11., then and in such event, upon request from the Borrower delivered to such Lender and the Agent, such Lender shall assign, in accordance with the provisions of Section 11.6.(c), all of its rights and obligations under this Agreement and the other Credit Documents to another Lender or other financial institution selected by the Borrower and consented to by the Agent in consideration for the payment by such assignee to the Lender of the principal of and interest on the outstanding Loans accrued to the date of such assignment and the assumption of such Lender's Revolving Credit Commitment, together with any and all other amounts owing to such Lender under any provisions of this Agreement or the other Credit Documents accrued to the date of such assignment.
Appears in 1 contract
Samples: Credit Agreement (Rock Tenn Co)
Benefit of Agreement Assignments and Participations. (a) This Agreement shall be binding upon and inure to the benefit of the parties hereto, and be enforceable by their respective successors and assigns, except that the respective obligation of the Lenders and 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 parties hereto; provided, however, that Borrowers.
(ib) no Credit Party Neither Borrowers nor Parent may assign or transfer any of its rights, obligations or interests interest hereunder or under any other Credit Document without the prior written consent of the Lenders. Each of the Lenders may make, (ii) although any Lender may transfercarry or transfer its pro rata share of the Revolving Advances at, 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 Revolving Loan Commitments hereunder except as provided in Sections 2.12 and 14.04(b)) and the transferee, assignee or participant, as the case may be, shall not constitute a “Lender” hereunder and (iii) 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 Credit Document except to for the extent such amendment or waiver would (x) 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 Commitment Commission thereon (except (m) in connection with a waiver of applicability of any post-default increase in interest 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 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), (y) consent to the assignment or transfer by the Borrower account of any of its rights and obligations under this Agreement branch offices or (z) release all the office of one or substantially all more of the Collateral under all of the Security Documents (except as expressly provided in the Credit Documents) securing the Loans hereunder in which such participant is participating. In the case of any such participation, the participant shall not have any rights under this Agreement or any of the other Credit 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 participationits Affiliates.
(bc) Notwithstanding Subject to the foregoingterms of this Section 12.15, any Lender (may make an assignment to a Qualified Assignee of, or sale of participations in, at any time or times, the Loan Documents, Revolving Advances, Letter of Credit Obligations and any Revolving Commitment or any portion thereof or interest therein, including any Lender's rights, title, interests, remedies, powers or duties thereunder. Any assignment by a 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 shall: (i) 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 require the consent of the Borrower Agent (which consent shall not be unreasonably withheld or delayed with respect to a Qualified Assignee) 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 agreement (an "Assignment Agreement") substantially in the form attached hereto as Exhibit 12.15(c) and Assumption Agreementotherwise in form and substance reasonably satisfactory to, provided that (i) at such time Schedule I shall be deemed modified to reflect the Revolving Loan Commitments (and/or outstanding Loansand acknowledged by, as the case may be) of such new Lender and of the existing Lenders, Agent; (ii) upon the surrender of the relevant Notes assigned by the Lender, new Notes will be issued, at the Borrower’s expense, to conditioned on such new assignee Lender and representing to the assigning Lender upon and Agent that it is purchasing the request of such new Lender or assigning Lender, such new Notes applicable Revolving Advances to be in conformity assigned to it for its own account, for investment purposes and not with the requirements of Section 2.05 (with appropriate modifications) a view to the extent needed to reflect the revised Revolving Loan Commitments (and/or outstanding Loans, as the case may be), distribution thereof; (iii) after giving effect to any such partial assignment, the assignee Lender shall have a Revolving Commitment in an amount at least equal to $5,000,000 and the assigning Lender shall have retained a Revolving Commitment in an amount at least equal to $5,000,000; (iv) 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, require the consent of Borrowers as to the Administrative Agent shall be required identity of the Qualified Assignee Lender of the type described in connection with any assignment pursuant to preceding clause (yb) and the consent of the Issuing Lender shall be required in connection with any assignment pursuant to preceding clauses (x) and (y) (in each casedefinition of "Qualified Assignee", which consent shall not be unreasonably withheld or delayed); 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 under this Section 12.15, and (iv) the Administrative Agent assignee shall receive at have, to the time extent of each such assignment, from the assigning or assignee Lendersame rights, the payment of a non-refundable assignment fee of $3,000benefits and obligations as all other Lenders hereunder. To the extent of any assignment pursuant to this Section 14.04(b), the The assigning Lender shall be relieved of its obligations hereunder with respect to its Revolving Commitment or assigned Revolving Loan Commitments portion thereof from and outstanding Loans. At the time of each assignment pursuant to this Section 14.04(b) to a Person which is not already a Lender hereunder, 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 Revolving Loan Commitments and related outstanding Obligations pursuant to Section 2.12 or this Section 14.04(b) would, at the time of such assignment, result in increased costs under Section 2.09 or 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, 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 such assignment. Each Borrower hereby acknowledges and agrees that any assignment shall give rise to a direct obligation of Borrowers to the respective assignment).
(c) Nothing in this Agreement assignee and that the assignee shall prevent 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 aggregate Revolving Commitment. In the event Agent or prohibit any Lender 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 assigns or the Borrower), any Lender which is a fund may pledge otherwise transfers all or any portion part of its Loans and Notes to its trustee the Obligations, Agent or to a collateral agent providing credit or credit support to any such Lender shall so notify Borrowers and Borrowers shall, upon the request of Agent or such Lender, execute new Notes in support exchange for the Notes, if any, being assigned. Notwithstanding the foregoing provisions of its obligations to such trustee, such collateral agent or a holder of such obligations, as the case may be. No pledge pursuant to this clause (c) shall release the transferor Lender from any of its obligations hereunder.this
Appears in 1 contract
Benefit of Agreement Assignments and Participations. (a) This Agreement shall be binding upon and inure to the benefit of and be enforceable by the respective successors and assigns of the parties hereto, provided that Borrower may not assign or transfer any of its interest hereunder without the 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 all or a portion of its interests, rights and obligations under this Agreement (including all or a portion of its Commitment and the Loans at the time owing to it and the Notes held by it) to any Eligible Assignee; provided, however, that (i) no Credit Party may assign or transfer any the Administrative Agent and, except during the continuance of its rights, obligations or interests hereunder or under any other Credit Document without the prior written consent of the Lenders, (ii) although any Lender may 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 Revolving Loan Commitments hereunder except as provided in Sections 2.12 and 14.04(b)) and the transferee, assignee or participant, as the case may be, shall not constitute a “Lender” hereunder and (iii) 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 Credit Document except to the extent such amendment or waiver would (x) 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 Commitment Commission thereon (except (m) in connection with a waiver of applicability of any post-default increase in interest 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 then in effect (it being understood that a waiver of any Default or Event of Default or of a mandatory reduction in Default, 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), (y) Borrower must give their prior written consent to the such assignment or transfer by the Borrower of any of its rights and obligations under this Agreement or (z) release all or substantially all of the Collateral under all of the Security Documents (except as expressly provided in the Credit Documents) securing the Loans hereunder in which such participant is participating. In the case of any such participation, the participant shall not have any rights under this Agreement or any of the other Credit 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.
(b) 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) 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 delayed) unless such assignment is to an Affiliate of the assigning Lender, (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 not be required if any Event of Default is then in existence) all, or if less than all, a portion an amount equal to at least $5,000,000 in 10,000,000 or greater integral multiplies thereof, and (iii) the aggregate for parties to each such assignment shall execute and deliver to the assigning Lender Administrative Agent an Assignment and Acceptance, together with the Note or assigning LendersNotes subject to such assignment and, of unless such Revolving Loan Commitments and outstanding principal amount of Loans hereunder assignment is 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 Lender, a single Eligible Transferee)processing and recordation fee of $3,500. Borrower shall not be responsible for such processing and recordation fee or any costs or expenses incurred by any Lender or the Administrative Agent in connection with such assignment. Notwithstanding the foregoing, each the assigning Lender must retain after the consummation of which assignees shall become a party to this Agreement as a Lender by execution of an such Assignment and Assumption AgreementAcceptance, provided that (i) at such time Schedule I shall be deemed modified to reflect the Revolving Loan a minimum amount of Commitments (and/or outstanding 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, the assignee thereunder shall be a party hereto and to the extent of the interest assigned by such Assignment and Acceptance, have the rights and obligations of a Lender under this Agreement. Within five (5) Business Days after receipt of the notice and the Assignment and Acceptance, Borrower, at its own expense, shall execute and deliver to the Administrative Agent, in exchange for the surrendered Note or Notes, a new Note or Notes to the order of such assignee in a principal amount equal to the applicable Commitments or Loans assumed by it pursuant to such Assignment and Acceptance and new Note or Notes to the assigning Lender in 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 aggregate principal amount of such surrendered Note or Notes, shall be dated the date of the existing Lenderssurrendered Note or Notes which they replace, and shall otherwise be in substantially the form attached hereto.
(d) Each Lender 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 all or a portion of its Commitments in the Loans owing to it and the Notes held by it), provided, however, that (i) such Lender's obligations under this Agreement shall remain unchanged, (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 shall remain solely responsible to the assigning Lender upon other parties hereto for the request performance 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)obligations, (iii) the consent of the Administrative Agent shall be required in connection with any assignment pursuant to preceding clause (y) and the 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 participating bank or other entity shall not be unreasonably withheld or delayed)entitled to the benefit (except through its selling Lender) of the cost protection provisions contained in Article 4. of this Agreement, and (iv) Borrower and the Administrative Agent and other Lenders shall receive at continue to deal solely and directly with each Lender in connection with such Lender's rights and obligations under this Agreement and the time other Credit Documents, and such Lender shall retain the sole right to enforce the obligations of each such assignmentBorrower relating to the Loans and to approve any amendment, from the assigning modification or assignee Lender, the payment of a non-refundable assignment fee of $3,000. To the extent waiver of any assignment pursuant to this Section 14.04(b), the assigning Lender shall be relieved of its obligations hereunder with respect to its assigned Revolving Loan Commitments and outstanding Loans. At the time of each assignment pursuant to this Section 14.04(b) to a Person which is not already a Lender hereunder, 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 Revolving Loan Commitments and related outstanding Obligations pursuant to Section 2.12 or this Section 14.04(b) would, at the time of such assignment, result in increased costs under Section 2.09 or 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, in accordance with and pursuant to the other provisions of this Agreement, . Any Lender selling a participation hereunder shall be obligated provide prompt written notice to pay any other increased costs Administrative Agent of the type described above resulting from changes after the date name of the respective assignment)such participant.
(ce) Nothing Any Lender or participant may, in connection with the assignment or participation or proposed assignment or participation, pursuant to this Agreement shall prevent Section, disclose to the assignee or prohibit participant or proposed assignee or participant any Lender from pledging its Loans and Notes hereunder information relating to a Federal Reserve Bank in support of borrowings made by Borrower or the other Consolidated Companies furnished to such Lender by or on behalf of Borrower or any other Consolidated Company. With respect to any disclosure of confidential, non-public, proprietary information, such proposed assignee or participant shall 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 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 such Federal Reserve Bank andany Lender, with prior notification to the Administrative Agent (but without the consent of the Administrative Agent or the Borrower), Borrower relating to such confidential information unless otherwise properly disposed of by such entity.
(f) Any Lender may at any Lender which is a fund may pledge time assign all or any portion of its Loans rights under this Agreement and the Notes issued to its trustee or it to a collateral agent providing credit or credit support to Federal Reserve Bank; provided that no such Lender in support of its obligations to such trustee, such collateral agent or a holder of such obligations, as the case may be. No pledge pursuant to this clause (c) assignment shall release the transferor 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 and be enforceable by the respective successors and assigns of the parties hereto; provided, however, provided that (i) no Credit Party the Borrower may not assign or transfer any of its rights, obligations or interests interest hereunder or under any other Credit Document without the prior written consent of the Lenders, .
(iib) although any Any Lender may transfermake, 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 grant participations in its rights hereunderan Affiliate of an existing Lender, such Lender shall remain a “Lender” for all purposes hereunder (and may consent not transfer to be unreasonably withheld, conditioned or assign delayed, after consultation with the Borrower) to one or more banks or other entities all or any a portion of its Revolving Loan Commitments hereunder except as provided in Sections 2.12 rights and 14.04(b)) obligations under this Agreement, the Notes and the transferee, assignee Letters of Credit; provided that (i) no such assignment shall be for less than $5,000,000 of such Lender's Commitments or participantLoans, as the case may be, and (ii) each assignment shall be of a pro rata portion of such Lender's Commitments or Loans. Upon such execution, delivery and acceptance, from and after the effective date (the "Effective Date") of such Assignment and Acceptance (x) the assignee thereunder shall be a party hereto, and, to the extent that rights and obligations hereunder have been assigned to and assumed by it pursuant to such Assignment and Acceptance, such assignee shall have the rights and obligations of a Lender hereunder and (y) the Lender assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's rights and obligations under this Agreement, 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, (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 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 constitute 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 for the recordation of the names and addresses of the Lenders and the Commitments of, and principal amount of the Loans owing to, each Lender from time to time (the "Register"). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower and each Secured Party may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register and copies of each Assignment and Acceptance shall be available for inspection by the Borrower, the Issuing Bank or any Lender at any reasonable time and from time to time upon reasonable prior notice.
(f) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender, together with the Note or Notes subject to such assignment, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit O hereto, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) no give prompt notice thereof to the Issuing Bank and the Borrower. Within five (5) Business Days after its receipt of such notice, the Borrower shall execute and deliver to the Administrative Agent in exchange for the surrendered Note or Notes a new Note or Notes to the order of such assignee in an amount equal to the Commitment or Commitments assumed by it pursuant to such Assignment and Acceptance and, if the assigning Lender has retained a Commitment or Commitments hereunder, a new Note or Notes to the order of the assigning Lender in an amount equal to the 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 of the Note or Notes subject to such assignments.
(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 that (i) such Lender's obligations under this Agreement (including, without limitation, its Commitment) shall remain unchanged, (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 Credit Document except to the extent such amendment or waiver would (xA) 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 Commitment Commission thereon (except (m) in connection with a waiver of applicability of any post-default increase in interest 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 any installment of principal of the participant’s participation over the amount thereof then Loans 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 which 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)participating, (yC) consent reduce the interest rate applicable to the assignment or transfer by the Borrower of Loans in which such participant is participating, (D) reduce any of its rights and obligations under this Agreement fees payable hereunder, or (zE) release all or substantially all of the Collateral under all of the Security Documents (except as expressly provided in the Credit Documents) securing the Loans hereunder in which such participant is participating. In the case of any such participation, the participant shall not have any rights under this Agreement or any of the other Credit 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.
(bh) Notwithstanding Each Lender agrees that, without 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) 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 prior written consent of the Borrower (which consent shall and the Administrative Agent, it will not be unreasonably withheld make any assignment hereunder in any manner or delayed and shall not be required if under any Event of Default is then in existence) allcircumstances that would require registration or qualification of, or if less than allfilings in respect of, a portion equal to at least $5,000,000 in any Loan, Note or other Obligation under the aggregate for securities laws of the assigning Lender United States of America 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 state.
(i) Any Lender may at such any 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) 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 Revolving Loan Commitments (and/or outstanding Loans, as the case may be), (iii) the consent of the Administrative Agent shall be required in connection with any assignment pursuant to preceding clause (y) and the 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 (iv) 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 obligations hereunder with respect to its assigned Revolving Loan Commitments and outstanding Loans. At the time of each assignment pursuant to this Section 14.04(b) to a Person which is not already a Lender hereunder, 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 Revolving Loan Commitments and related outstanding Obligations pursuant to Section 2.12 or this Section 14.04(b) would, at the time of such assignment, result in increased costs under Section 2.09 or 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, 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).
(c) Nothing in this Agreement shall prevent or prohibit any Lender 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 assign all or any portion of its Loans rights under this Agreement and Notes the other Financing Documents to its trustee or the Federal Reserve Bank of the United States; provided, that any payment in respect of such assigned rights made by the Borrower to a collateral agent providing credit or credit support to such the assigning Lender in support accordance with the terms of its this Agreement shall satisfy the Borrower's obligations to such trustee, such collateral agent or a holder hereunder in respect of such obligations, as assigned rights to the case may beextent of such payment. No pledge pursuant to this clause (c) such assignment shall release the transferor assignor Lender from any of its obligations hereunder.
(j) After the completion of the primary and general syndication of the Loans described herein, each transferor Lender shall pay the Administrative Agent a fee of $3,500.00 for processing each assignment made pursuant to this Section 9.06.
Appears in 1 contract
Benefit of Agreement Assignments and Participations. (a) This Agreement shall be binding upon and inure to the benefit of the parties hereto, and be enforceable by their respective successors and assigns, except that the respective obligation of the Lenders and 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 parties hereto; provided, however, that Borrower.
(ib) no Credit Party Neither Borrower nor Parent may assign or transfer any of its rights, obligations or interests interest hereunder or under any other Credit Document without the prior written consent of the Lenders. Each of the Lenders may make, (ii) although any Lender may transfercarry or transfer its pro rata share of the Revolving Advances at, 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 Revolving Loan Commitments hereunder except as provided in Sections 2.12 and 14.04(b)) and the transferee, assignee or participant, as the case may be, shall not constitute a “Lender” hereunder and (iii) 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 Credit Document except to for the extent such amendment or waiver would (x) 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 Commitment Commission thereon (except (m) in connection with a waiver of applicability of any post-default increase in interest 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 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), (y) consent to the assignment or transfer by the Borrower account of any of its rights and obligations under this Agreement branch offices or (z) release all the office of one or substantially all more of the Collateral under all of the Security Documents (except as expressly provided in the Credit Documents) securing the Loans hereunder in which such participant is participatingits Affiliates. In the case of any such participation, the participant shall not have any rights under this Agreement or any of the other Credit 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.108
(bc) Notwithstanding Subject to the foregoingterms of this Section 12.15, any Lender (may make an assignment to a Qualified Assignee of, or sale of participations in, at any time or times, the Loan Documents, Revolving Advances, Letter of Credit Obligations and any Revolving Commitment or any portion thereof or interest therein, including any Lender's rights, title, interests, remedies, powers or duties thereunder. Any assignment by a 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 shall: (i) 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 require the consent of the Borrower Agent (which consent shall not be unreasonably withheld or delayed with respect to a Qualified Assignee) 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 agreement (an "Assignment Agreement") substantially in the form attached hereto as Exhibit 12.15(c) and Assumption Agreementotherwise in form and substance reasonably satisfactory to, provided that (i) at such time Schedule I shall be deemed modified to reflect the Revolving Loan Commitments (and/or outstanding Loansand acknowledged by, as the case may be) of such new Lender and of the existing Lenders, Agent; (ii) upon the surrender of the relevant Notes assigned by the Lender, new Notes will be issued, at the Borrower’s expense, to conditioned on such new assignee Lender and representing to the assigning Lender upon and Agent that it is purchasing the request of such new Lender or assigning Lender, such new Notes applicable Revolving Advances to be in conformity assigned to it for its own account, for investment purposes and not with the requirements of Section 2.05 (with appropriate modifications) a view to the extent needed to reflect the revised Revolving Loan Commitments (and/or outstanding Loans, as the case may be), distribution thereof; (iii) after giving effect to any such partial assignment, the assignee Lender shall have a Revolving Commitment in an amount at least equal to $5,000,000 and the assigning Lender shall have retained a Revolving Commitment in an amount at least equal to $5,000,000; (iv) 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, require the consent of Borrower as to the Administrative Agent shall be required identity of the Qualified Assignee Lender of the type described in connection with any assignment pursuant to preceding clause (yb) and the consent of the Issuing Lender shall be required in connection with any assignment pursuant to preceding clauses (x) and (y) (in each casedefinition of "Qualified Assignee", which consent shall not be unreasonably withheld or delayed); 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 under this Section 12.15, and (iv) the Administrative Agent assignee shall receive at have, to the time extent of each such assignment, from the assigning or assignee Lendersame rights, the payment of a non-refundable assignment fee of $3,000benefits and obligations as all other Lenders hereunder. To the extent of any assignment pursuant to this Section 14.04(b), the The assigning Lender shall be relieved of its obligations hereunder with respect to its Revolving Commitment or assigned Revolving Loan Commitments portion thereof from and outstanding Loans. At the time of each assignment pursuant to this Section 14.04(b) to a Person which is not already a Lender hereunder, 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 Revolving Loan Commitments and related outstanding Obligations pursuant to Section 2.12 or this Section 14.04(b) would, at the time of such assignment, result in increased costs under Section 2.09 or 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, 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 such assignment. Borrower hereby acknowledges and agrees that any assignment shall give rise to a direct obligation of Borrower to the respective assignmentassignee 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 aggregate Revolving Commitment. In the event Agent or any Lender assigns or otherwise transfers all or any part of the Obligations, Agent or any such Lender shall so notify Borrower and Borrower shall, upon the request of Agent or such Lender, execute new Notes in exchange for the Notes, if any, being assigned. Notwithstanding the foregoing provisions of this Section 12.15(c).
, (ci) Nothing in any Lender may at any time pledge the Obligations held by it and such Lender's rights under this Agreement shall prevent or prohibit any Lender from pledging its Loans and Notes hereunder the other Loan Documents to a Federal Reserve Bank in support of borrowings made by provided, that no such pledge to a Federal Reserve Bank shall release such Lender from such Federal Reserve Bank andLender's obligations hereunder or under any other Loan Document, with prior notification to the Administrative Agent and (but without the consent of the Administrative Agent or the Borrower), ii) any Lender which that is a an investment fund may pledge all or any portion of its Loans assign the Obligations held by it and Notes such Lender's rights under this Agreement and the other Loan Documents to its trustee or to a collateral agent providing credit or credit support to another investment fund managed by the same investment advisor, provided that such Lender shall notify Agent of any such assignment for purposes of maintaining the Loan Account in support of its obligations to accordance with Section 2.21 hereof, and such trustee, assignment will become effective only if such collateral agent or a holder of such obligations, as assignment is recorded in the case may be. No pledge pursuant to this clause (c) shall release the transferor Lender from any of its obligations hereunderLoan Account.
Appears in 1 contract
Benefit of Agreement Assignments and Participations. (a) This Agreement shall be binding upon and inure to the benefit of the Borrowers, the Lenders, the Agent, the Co-Agent and be enforceable by the their respective successors and assigns assigns, and all subsequent holders of any of the parties hereto; providedNotes or any portion hereof.
(b) Each Lender may assign its rights and interests under this Agreement, howeverthe Notes and the Security Documents in whole or in part, that and sell participations in the Notes and the Security Documents as security therefor, provided as follows:
(i) no Credit Party may assign No Lender shall make any assignment (other than assignment in full) other than to a separately organized branch or transfer any of its rights, obligations or interests hereunder or under any other Credit Document without the prior written consent an Affiliate of the Lenderssame 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) although Any such assignment made other than to a separately organized branch, or an Affiliate of, a Lender shall reflect an assignment of such assigning Lender's Notes which is in an aggregate principal amount of at least $5,000,000, and if greater, shall be an integral multiple of $1,000,000.
(iii) Notwithstanding any provision of this Agreement to the contrary, each Lender may transfer, assign or grant participations in its rights hereunder, such Lender shall remain a “Lender” for all purposes hereunder (and may not transfer or at any time assign all or any portion of its Revolving rights under this Agreement and each of the other Loan Commitments Documents, including, without 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); provided that no such assignment shall release 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.
(iv) Any assignments made hereunder except as provided shall be pursuant to an instrument of assignment and acceptance (the "ASSIGNMENT AND ACCEPTANCE") substantially in Sections 2.12 and 14.04(b)) the form of EXHIBIT H and the transfereeparties to each such assignment shall execute and deliver to the Agent and the Co-Agent for 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 two (2) Business Days after the execution thereof, (A) the assignee or participantthereunder shall become a party hereto, as to the case may beLoan Documents and to the Intercreditor Agreement and, shall not constitute a “Lender” hereunder and (iii) 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 Credit Document except to the extent provided in such amendment or waiver would (x) extend Assignment and Acceptance, have the final scheduled maturity rights and obligations of any Loan or Note in which such participant is participating, or reduce the rate or extend the time of payment of interest or Commitment Commission thereon (except (m) in connection a Lender hereunder with a waiver of applicability of any post-default increase in interest rates commitment as set forth therein and (nB) that any amendment or modification the assigning Lender thereunder shall, to the financial definitions 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 not constitute a reduction in be deemed to amend this Agreement to the rate of interest for purposes of this clause (x)) or reduce extent, and only to the principal amount thereofextent, or increase necessary to reflect the amount addition of the participant’s participation over assignee as a Lender and the amount thereof then in effect resulting adjustment of 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.
(it being understood that a waiver v) Upon its receipt of any Default or Event of Default or an Assignment and Acceptance executed by an assigning Lender and the assignee together with the Note subject to such assignment and payment by the assignee to the Agent of a mandatory reduction in registration and processing fee of $2,000.00, the Total Commitment Agent shall not constitute a change in accept such Assignment and Acceptance. Promptly upon delivering such Assignment and Acceptance to the terms Agent, the assigning Lender shall give notice thereof to the Borrowers and the other Lenders. Within five (5) Business Days after receipt of such participationnotice, the Borrowers shall execute and that deliver to the Agent in exchange for such surrendered Note(s) a new Note or Notes payable to the order of such assignee in an increase amount equal to the portion of the Loan(s) assumed by such assignee pursuant to such Assignment and Acceptance and a new Note or Notes payable to the order of the assigning Lender in any Revolving Loan Commitment or Loan an amount equal to the portion of the Loans retained by it hereunder. Such new Notes shall be permitted without dated the consent effective date of any participant if such Assignment and Acceptance and shall otherwise be in substantially the participant’s participation is not increased as a result thereof), (y) consent form provided in ARTICLE II. The canceled Notes surrendered by the assigning Lender shall be returned to the assignment Borrowers upon the execution and delivery of such new Notes.
(vi) Each Lender may sell participations in all or transfer by the Borrower of any a portion of its rights and obligations under this Agreement or (z) release including, without limitation, all or substantially all a portion of its Commitments and the Collateral Notes held by it); provided, however, that, (A) the selling Lender shall remain obligated under all of this Agreement to the Security Documents (except extent as expressly provided in the Credit Documents) securing the Loans hereunder in which such participant is participating. In the case of any 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 shall to take or refrain from taking any action hereunder or under any other Loan Document, except that the selling Lender may agree not have any rights under this Agreement or to consent, without such participant's consent, to any of the other Credit Documents actions referred to ARTICLE XI, to the extent that the same require the consent of each Lender hereunder, (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 theretoD) and all amounts payable by the Borrower Borrowers hereunder shall be determined as if such Lender had not sold such participationparticipation 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.
(bvii) Notwithstanding Except during the foregoingexistence of an Event of Default, any no assignment by a Lender (referred to above other than to a separately organized branch 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) parent company so long as such parent company is solvent and/or any affiliate Affiliate of such Lender which is at least 50% owned by such Lender or its parent company and other than under paragraph (so long as such affiliate is solventb)(iii) or (ii) in hereof shall be permitted without 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 prior written 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) 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 Revolving Loan Commitments (and/or outstanding Loans, as the case may be), (iii) the consent of the Administrative Agent shall be required in connection with any assignment pursuant to preceding clause (y) and the consent of the Issuing Lender shall be required in connection with any assignment pursuant to preceding clauses (x) and (y) (in each caseManaging Agents, which consent shall not be unreasonably withheld or delayed).
(viii) No Borrower may assign any of its rights or delegate any of its duties or obligations hereunder.
(ix) Any Lender may, and (iv) 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 in connection with any assignment or participation pursuant to this Section 14.04(b)Section, the assigning Lender shall be relieved of its obligations hereunder with respect to its assigned Revolving Loan Commitments and outstanding Loans. At the time of each assignment pursuant to this Section 14.04(b) to a Person which is not already a Lender hereunder, the respective assignee Lender shall, disclose to the extent legally entitled to do so, comply with Section 5.04(b). To the extent that an assignment of all assignee or participant any portion of a Lender’s Revolving Loan Commitments and related outstanding Obligations pursuant to Section 2.12 or this Section 14.04(b) would, at the time of such assignment, result in increased costs under Section 2.09 or 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, in accordance with and pursuant information relating to the other provisions of this AgreementBorrowers, shall be obligated to pay any other increased costs of the type described above resulting from changes after the date of the respective assignment).
(c) Nothing in this Agreement shall prevent Parents or prohibit any Lender 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 Guarantors furnished to such Lender in support by or on behalf of its obligations to the Borrowers and such trustee, assignee or participant shall treat such collateral agent or a holder of such obligations, information as the case may be. No pledge pursuant to this clause (c) shall release the transferor Lender from any of its obligations hereunderconfidential.
Appears in 1 contract
Benefit of Agreement Assignments and Participations. (a) This Agreement shall be binding upon and inure to the benefit of the Borrower, the Lenders and be enforceable by the Agent and their respective successors and assigns assigns, and all subsequent holders of any of the parties hereto; provided, however, that Notes or any portion hereof.
(i) no Credit Any such assignment (other than of all of a Lender's Notes and Commitments) made other than to another Lender or a Related Lender Party may assign or transfer any shall reflect an assignment of its rightssuch assigning Lender's Notes and Commitments which is in an aggregate principal amount of at least $5,000,000, obligations or interests hereunder or under any other Credit Document without the prior written consent and if greater, shall be an integral multiple of the Lenders, $1,000,000.
(ii) although Notwithstanding any provision of this Agreement to the contrary, each Lender may transfer, assign or grant participations in its rights hereunder, such Lender shall remain a “Lender” for all purposes hereunder (and may not transfer or at any time assign all or any portion of its Revolving rights under this Agreement and each of the other Loan Commitments Documents, including, without 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); provided that no such assignment shall release 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 except as provided shall be pursuant to an instrument of assignment and acceptance (the "Assignment ---------- and Acceptance") substantially in Sections 2.12 and 14.04(b)the form of SCHEDULE 13(b)(iii) and the transferee-------------- ------------------ 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, (A) the assignee or participantthereunder shall become a party hereto and, as the case may be, shall not constitute a “Lender” hereunder and (iii) 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 Credit Document except to the extent provided in such amendment or waiver would (x) extend Assignment and Acceptance, have the final scheduled maturity rights and obligations of any Loan or Note in which such participant is participating, or reduce the rate or extend the time of payment of interest or Commitment Commission thereon (except (m) in connection a Lender hereunder with a waiver of applicability of any post-default increase in interest rates Commitments and outstanding Loans as set forth therein and (nB) that any amendment or modification the assigning Lender thereunder shall, to the financial definitions 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 not constitute be deemed to amend this Agreement to the extent, and only to the extent, necessary to reflect the addition of the assignee as a reduction 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) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and the assignee together with the Note(s) subject to such assignment and payment by the assignee to the Agent of a registration and processing fee of $3,000, the Agent shall accept such Assignment and Acceptance. Promptly upon delivering such Assignment and Acceptance to the Agent, the assigning Lender shall give notice thereof to the Borrower and the other Lenders pursuant to a Notice of Assignment and Acceptance substantially in the rate form of interest SCHEDULE 13(b)(iv). Within ------------------ five (5) Business Days after receipt of such notice, the Borrower shall execute and deliver to the Agent in exchange for purposes such surrendered Note(s) one or more new Notes payable to the order of this clause (x)) or reduce such assignee in an amount equal to the principal amount thereof, or increase the amount portion of the participant’s participation over Commitments assumed, and the Loans purchased, by such assignee pursuant to such Assignment and Acceptance and one or more new Notes payable to the order of the assigning Lender in an amount thereof then in effect (equal to the portion of the Commitments and outstanding Loans retained by it being understood that a waiver of any Default or Event of Default or of a mandatory reduction in hereunder. Each new Note shall be dated the Total Commitment shall not constitute a change in the terms effective date of such participation, Assignment and that an increase Acceptance and shall otherwise be in any Revolving Loan Commitment or Loan substantially the form provided in SECTION 1.01. The canceled Note(s) surrendered by the assigning Lender shall be permitted without the consent of any participant if the participant’s participation is not increased as a result thereof), (y) consent returned to the assignment Borrower upon the execution and delivery of such new Note(s).
(v) Each Lender may sell participations in all or transfer by the Borrower of any a portion of its rights and obligations under this Agreement or (z) release including, without limitation, all or substantially all a portion of its Commitments and the Collateral Notes held by it); provided, however, that, (A) the selling Lender shall remain obligated under all of this Agreement to the Security Documents (except extent as expressly provided in the Credit Documents) securing the Loans hereunder in which such participant is participating. In the case of any 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 shall to take or refrain from taking any action hereunder or under any other Loan Document, except that the selling Lender may agree not have any rights under this Agreement or to consent, without such participant's consent, to any of the other Credit Documents actions referred to in ARTICLE XII, to the extent that the same require the consent of each Lender hereunder, (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 theretoD) and all amounts payable by the Borrower hereunder shall be determined as if such Lender had not sold such participationparticipation 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.
(bvi) Notwithstanding the foregoingExcept for an assignment made to a separately organized branch or affiliate of a Lender, 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 no assignment referred to its (i) 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 above shall be permitted without prior written consent of the Borrower (Agent, which consent shall will not be unreasonably withheld or delayed and (z) no participation referred to above shall not be required if any 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 is then in existence) allDefault, 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 no assignment 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 referred to above, other than to a Related Lender Party and other than under paragraph (b)(ii) of an Assignment and Assumption Agreementthis Section, provided that (i) at such time Schedule I shall be deemed modified to reflect permitted without the Revolving Loan 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 Revolving Loan Commitments (and/or outstanding Loans, as the case may be), (iii) the prior written consent of the Administrative Agent shall be required in connection with any assignment pursuant to preceding clause (y) and the consent of the Issuing Lender shall be required in connection with any assignment pursuant to preceding clauses (x) and (y) (in each caseBorrower, which consent shall not be unreasonably withheld or delayed).
(viii) The Borrower may not assign any of its rights or delegate any of its duties or obligations hereunder.
(ix) Any Lender may, and (iv) 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 in connection with any assignment or participation pursuant to this Section 14.04(b)Section, the assigning Lender shall be relieved of its obligations hereunder with respect to its assigned Revolving Loan Commitments and outstanding Loans. At the time of each assignment pursuant to this Section 14.04(b) to a Person which is not already a Lender hereunder, the respective assignee Lender shall, disclose to the extent legally entitled assignee or participant any information relating to do so, comply with Section 5.04(b). To the extent that an assignment of all or any portion of a Lender’s Revolving Loan Commitments and related outstanding Obligations pursuant to Section 2.12 or this Section 14.04(b) would, at the time of such assignment, result in increased costs under Section 2.09 or 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, 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).
(c) Nothing in this Agreement shall prevent or prohibit any Lender 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 Companies furnished to such Lender in support by or on behalf of its obligations to the Borrower and such trustee, assignee or participant shall treat such collateral agent or a holder of such obligations, information as the case may be. No pledge pursuant to this clause (c) shall release the transferor Lender from any of its obligations hereunderconfidential.
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 and be enforceable by the respective successors and assigns of the parties hereto, provided that Borrower may not assign or transfer any of its interest hereunder without the 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 all or a portion of its interests, rights and obligations under this Agreement (including all or a portion of its Commitment and the Loans at the time owing to it and the Revolving Credit Notes and Term Notes held by it) to any Eligible Assignee; provided, however, that (i) no Credit Party may assign or transfer any the Agent and, except during the continuance of its rights, obligations or interests hereunder or under any other Credit Document without the prior written consent of the Lenders, (ii) although any Lender may 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 Revolving Loan Commitments hereunder except as provided in Sections 2.12 and 14.04(b)) and the transferee, assignee or participant, as the case may be, shall not constitute a “Lender” hereunder and (iii) 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 Credit Document except to the extent such amendment or waiver would (x) 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 Commitment Commission thereon (except (m) in connection with a waiver of applicability of any post-default increase in interest 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 then in effect (it being understood that a waiver of any Default or Event of Default or of a mandatory reduction in Default, 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), (y) Borrower must give their prior written consent to the such assignment or transfer by the Borrower of any of its rights and obligations under this Agreement or (z) release all or substantially all of the Collateral under all of the Security Documents (except as expressly provided in the Credit Documents) securing the Loans hereunder in which such participant is participating. In the case of any such participation, the participant shall not have any rights under this Agreement or any of the other Credit 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.
(b) 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) 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 delayed) unless such assignment is to an Affiliate of the assigning Lender, (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 Agent) shall not be required if any Event of Default is then in existence) all, or if less than all, a portion an amount equal to at least $5,000,000 in or greater integral multiplies thereof, and (iii) the aggregate for parties to each such assignment shall execute and deliver to the assigning Lender Agent an Assignment and Acceptance, together with the Revolving Credit Note or assigning LendersRevolving Credit Notes and Term Note or Term Notes subject to such assignment and, of unless such Revolving Loan Commitments and outstanding principal amount of Loans hereunder assignment is 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) 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 a processing 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) the consent of the Administrative Agent shall be required in connection with any assignment pursuant to preceding clause (y) and the 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 (iv) 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 recordation 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 obligations hereunder with respect to its assigned Revolving Loan Commitments and outstanding Loans. At the time of each assignment pursuant to this Section 14.04(b) to a Person which is not already a Lender hereunder, 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 Revolving Loan Commitments and related outstanding Obligations pursuant to Section 2.12 or this Section 14.04(b) would, at the time of such assignment, result in increased costs under Section 2.09 or 2.10 from those being charged by the respective assigning Lender prior to such assignment, then the Borrower shall not be obligated responsible for such processing and recordation fee or any costs or expenses incurred by any Lender or the Agent in connection with such assignment. 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, the assignee thereunder shall be a party hereto and to pay the extent of the interest assigned by such increased costs Assignment and Acceptance, have the rights and obligations of a Lender under this Agreement. Within five (although 5) Business Days after receipt of the notice and the Assignment and Acceptance, Borrower, at its own expense, shall execute and deliver to the Agent, in accordance with and exchange for the surrendered Note or Notes, a new Note or Notes to the order of such assignee in a principal amount equal to the applicable Commitments or Loans assumed by it pursuant to such Assignment and Acceptance and new Note or Notes to the other provisions assigning Lender in the amount of this Agreementits 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 aggregate principal amount of such surrendered Note or Notes, shall be obligated to pay any other increased costs of the type described above resulting from changes after dated the date of the respective assignment)surrendered Note or Notes which they replace, and shall otherwise be in substantially the form attached hereto.
(cd) Nothing in this Agreement shall prevent or prohibit any Each Lender 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 andmay, with prior notification to the Administrative Agent (but without the consent of the Administrative Agent Borrower, sell participations to one or the Borrower), any Lender which is a fund may pledge more banks or other entities in all or any a portion of its Loans and Notes to its trustee or to a collateral agent providing credit or credit support to such Lender in support of its obligations to such trustee, such collateral agent or a holder of such obligations, as the case may be. No pledge pursuant to this clause (c) shall release the transferor Lender from any of its obligations hereunder.its
Appears in 1 contract
Samples: Credit Agreement (Childrens Comprehensive 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 respective successors and assigns of the parties hereto; provided, however, provided that (i) no Credit Party Borrower may not assign or transfer any of its rights, obligations or interests interest hereunder or under any other Credit Document without the prior written consent of the Lenders.
(b) Any Lender may make, carry or transfer its Advances 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 all or a portion of its interests, rights and obligations under this Agreement (including all or a portion of any of its Commitments and the Advances at the time owing to it and the Notes held by it) to any financial institution; PROVIDED, HOWEVER, that (i) the Administrative Agent and Borrower must give their prior written consent to such assignment unless such assignment is to an Affiliate of the assigning Lender (such consent not to be unreasonably withheld; PROVIDED THAT, the Borrower may withhold its consent without any cause or justification for a period of ninety (90) days after notice of a proposed assignment hereunder and if the Borrower designates another Lender acceptable to the Administrative Agent within that period willing to purchase the assigning Lender's proposed assignment amount for the same purchase price and on the same terms and conditions as the assigning Lender's proposed assignee, the assigning Lender shall sell such interest hereunder to the Borrower's proposed assignee in accordance with this SECTION 11.06), (ii) although any Lender may 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 Revolving Loan Commitments hereunder except as provided in Sections 2.12 and 14.04(b)) and the transferee, assignee or participant, as the case may be, shall not constitute a “Lender” hereunder and (iii) 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 Credit Document except to the extent such amendment or waiver would (x) 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 Commitment Commission thereon (except (m) in connection with a waiver of applicability of any post-default increase in interest 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 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 not be less than an amount equal to $5,000,000 or greater integral multiplies thereof, (iii) such assigning Lender shall assign a proportionate share of all of its Commitments, assignment shall execute and deliver to the Administrative Agent an Assignment and Acceptance, together with the outstanding Advances and its participation over in the MASLAND BONDS to the such assignee, and (iv) the parties to each such Note or Notes subject to such assignment and, unless such assignment is to an Affiliate of such Lender, a processing and recordation fee of $2,500. Borrower shall not be responsible for such processing and recordation fee or any costs or expenses incurred by any Lender or the Administrative Agent in connection with such assignment. 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, the assignee thereunder shall be a party hereto and to the extent of the interest assigned by such Assignment and Acceptance, have the rights and obligations of a Lender under this Agreement. Notwithstanding the foregoing, the assigning Lender must retain after the consummation of such Assignment and Acceptance, a minimum aggregate amount thereof then in effect (it being understood that a waiver of Commitments of $10,000,000; PROVIDED, HOWEVER, no such minimum amount shall be required with respect to any Default or such assignment made at any time there exists an Event of Default hereunder. Within five (5) Business Days after receipt of the notice and the Assignment and Acceptance, Borrower, at its own expense, shall execute and deliver to the Administrative Agent, in exchange for the surrendered Note or Notes, a new Note or Notes to the order of such assignee in a mandatory reduction principal amount equal to the applicable Commitments assumed by it pursuant to such Assignment and Acceptance and new Note or Notes to the assigning Lender in the Total amount of its retained Commitment or Commitments. Such new Note or Notes shall not constitute a change be in an aggregate principal amount equal to the terms aggregate principal amount of such participationsurrendered Note or Notes, shall be dated the date of the surrendered Note or Notes which they replace, and that an increase shall otherwise be in any Revolving Loan Commitment or Loan shall be permitted substantially the form attached hereto.
(d) Each Lender may, without the consent of any participant if Borrower or the participant’s participation is not increased as Administrative Agent, sell participations to one or more banks or other entities in all or a result thereof), (y) consent to the assignment or transfer by the Borrower of any portion of its rights and obligations under this Agreement or (z) release all or substantially all of the Collateral under all of the Security Documents (except as expressly provided in the Credit Documents) securing the Loans hereunder in which such participant is participating. In the case of any such participation, the participant shall not have any rights under this Agreement or any of the other Credit 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.
(b) Notwithstanding the foregoing, any Lender (or any Lender together with one or more other Lenders) may (x) assign including all or a portion of its Revolving Loan Commitment and/or its outstanding Commitments and the Loans owing to its it and the Notes held by it), PROVIDED, HOWEVER, that (i) parent company so long as such parent company is solvent and/or no Lender may sell a participation in its aggregate Commitments (after giving effect to any affiliate permitted assignment hereof) in an amount in excess of fifty percent (50%) 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 aggregate Commitments, provided, however, sales 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 participations to 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 Lender shall not be unreasonably withheld or delayed and included in such calculation; PROVIDED, HOWEVER, no such maximum amount shall not be required if applicable to any such participation sold at any time there exists an 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 Lendershereunder, (ii) upon the surrender of the relevant Notes assigned by the such 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)'s obligations under this Agreement shall remain unchanged, (iii) the consent of the Administrative Agent shall be required in connection with any assignment pursuant to preceding clause (y) and the consent of the Issuing such Lender shall be required in connection with any assignment pursuant remain solely responsible to preceding clauses (x) and (y) (in each case, which consent shall not be unreasonably withheld or delayed)the other parties hereto for the performance of such obligations, and (iv) the Administrative Agent shall receive at the time of each such assignment, from the assigning participating bank 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 obligations hereunder with respect to its assigned Revolving Loan Commitments and outstanding Loans. At the time of each assignment pursuant to this Section 14.04(b) to a Person which is not already a Lender hereunder, 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 Revolving Loan Commitments and related outstanding Obligations pursuant to Section 2.12 or this Section 14.04(b) would, at the time of such assignment, result in increased costs under Section 2.09 or 2.10 from those being charged by the respective assigning Lender prior to such assignment, then the Borrower other entity shall not be obligated to pay such increased costs (although the Borrower, in accordance with and pursuant entitled to the benefit (except through its selling Lender) of the cost protection provisions contained in ARTICLE IV of this Agreement, and (v) Borrower and the Administrative Agent and other Lenders shall continue to deal solely and directly with each Lender in connection with such Lender's 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 waiver of any 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).
(ce) Nothing in this Agreement shall prevent or prohibit Any Lender may at any Lender 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 time assign all or any portion of its Loans rights in this Agreement and the Notes issued to its trustee or it to a collateral agent providing credit or credit support to Federal Reserve Bank; PROVIDED that no such Lender in support of its obligations to such trustee, such collateral agent or a holder of such obligations, as the case may be. No pledge pursuant to this clause (c) assignment shall release the transferor Lender from any of its obligations hereunder.
(f) If (i) any Taxes referred to in SECTION 4.07(b) have been levied or imposed so as to require withholdings or deductions by the Borrower and payment by the Borrower of additional amounts to any Lender as a result thereof, (ii) any Lender shall make demand for payment of increased costs or reduced rate of return pursuant to SECTION 4.10 or any Lender determines that LIBOR is unascertainable or illegal pursuant to SECTION 4.08 or SECTION 4.09, or any Lender makes a claim for increased costs pursuant to SECTION 4.11, or (iii) any Lender shall decline to consent to a modification or waiver of the terms of this Agreement or the other Credit Documents requested by Borrower, then and in such event, upon request from Borrower delivered to such Lender and the Administrative Agent, such Lender shall assign, in accordance with the provisions of SECTION 11.06(c), all of its rights and obligations under this Agreement and the other Credit Documents to another Lender or an Eligible Assignee selected by Borrower and consented to by the Administrative Agent (such consent not be unreasonably withheld) in consideration for the payment by such assignee to the Lender of the principal of, and interest on, the outstanding Loans accrued to the date of such assignment, and the assumption of such Lender's Commitment hereunder, together with any and all other amounts owing to such Lender under any provisions of this Agreement or the other Credit Documents accrued to the date of such assignment; PROVIDED, HOWEVER, Lenders subject to this SECTION 11.06 shall be treated in a substantially identical manner.
Appears in 1 contract
Samples: Credit Agreement (Dixie 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 be enforceable by the Agents and their respective successors and assigns assigns, and all subsequent holders of any of the parties hereto; providedNotes or any portion hereof.
(b) Each Lender may assign its rights and interests under this Agreement, howeverthe Notes and the Collateral Documents and/or delegate its obligations hereunder and thereunder, that in whole or in part, and sell participations in the Notes and the Collateral Documents as security therefor, provided as follows:
(i) no Credit Party may assign Any such assignment made other than to a separately organized branch, or transfer any an Affiliate of, a Lender (A) shall reflect an assignment of its rightssuch assigning Lender's Note and Commitment which is in an aggregate principal amount of at least $5,000,000, obligations or interests hereunder or under any other Credit Document without and if greater, shall be an integral multiple of $1,000,000 and (B) unless such assignment occurs during the prior written consent continuance of an Event of Default, shall require the approval of each of the LendersAgents and the Borrower, which approval shall not be unreasonably withheld or delayed.
(ii) although Notwithstanding any provision of this Agreement to the contrary, each Lender may transfer, assign or grant participations in its rights hereunder, such Lender shall remain a “Lender” for all purposes hereunder (and may not transfer or at any time assign all or any portion of its Revolving Loan Commitments hereunder except as provided in Sections 2.12 and 14.04(b)) and the transferee, assignee or participant, as the case may be, shall not constitute a “Lender” hereunder and (iii) 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 Credit Document except to the extent such amendment or waiver would (x) 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 Commitment Commission thereon (except (m) in connection with a waiver of applicability of any post-default increase in interest 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 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), (y) consent to the assignment or transfer by the Borrower of any of its rights and obligations under this Agreement or (z) release all or substantially all of the Collateral under all of the Security Documents (except as expressly provided in the Credit Documents) securing the Loans hereunder in which such participant is participating. In the case of any such participation, the participant shall not have any rights under this Agreement or any and each of the other Credit Documents (Transaction Documents, including, without limitation, the participant’s rights against such Lender in respect of such participation to be those set forth in the agreement executed Notes held 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.
(b) Notwithstanding the foregoing, to any Lender Federal Reserve Bank (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) 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) equivalent thereof 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 chartered outside 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 TransfereeUnited States), 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 no 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) 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 Revolving Loan Commitments (and/or outstanding Loans, as the case may be), (iii) the consent of the Administrative Agent shall be required in connection with any assignment pursuant to preceding clause (y) and the 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 (iv) 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 obligations hereunder with respect to its assigned Revolving Loan Commitments and outstanding Loans. At the time of each assignment pursuant to this Section 14.04(b) to a Person which is not already a Lender hereunder, 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 Revolving Loan Commitments and related outstanding Obligations pursuant to Section 2.12 or this Section 14.04(b) would, at the time of such assignment, result in increased costs under Section 2.09 or 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, 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).
(c) Nothing in this Agreement shall prevent or prohibit any Lender 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 support of its obligations to such trustee, such collateral agent or a holder of such obligations, as the case may be. No pledge pursuant to this clause (c) shall release the transferor a Lender from any of its obligations and liabilities under the 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(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, (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 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 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) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and the assignee together with the Note subject to such assignment and payment by the Assignee to the Administrative Agent of a registration and processing fee of $3,500, the Administrative Agent shall accept such Assignment and Acceptance. Promptly upon delivering such Assignment and Acceptance to the Agent, the Assigning Lender shall give notice thereof to the Borrower and all of the Lenders pursuant to a Notice of Assignment and Acceptance substantially in the form of SCHEDULE 12(B)(IV). Within five (5) Business Days after receipt of such notice, the Borrower shall execute and deliver to the Administrative Agent in exchange for the surrendered Note a new Note payable to the order of such assignee in an amount equal to the portion of the Commitments assumed by such assignee pursuant to such Assignment and Acceptance and new Note payable to the order of the assigning Lender in an amount equal to the portion of the 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 SECTION 1.
Appears in 1 contract
Benefit of Agreement Assignments and Participations. (a) This Agreement shall be binding upon and inure to the benefit of and be enforceable by the respective successors and assigns of the parties hereto, provided that Borrower may not assign or transfer any of its interest hereunder without the 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 all or a portion of its interests, rights and obligations under this Agreement (including all or a portion of its Commitment and the Loans at the time owing to it and the Notes held by it) to any financial institution; provided, however, that (i) no Credit Party may assign or transfer any the Agent and, except during the continuance of its rights, obligations or interests hereunder or under any other Credit Document without the prior written consent of the Lenders, (ii) although any Lender may 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 Revolving Loan Commitments hereunder except as provided in Sections 2.12 and 14.04(b)) and the transferee, assignee or participant, as the case may be, shall not constitute a “Lender” hereunder and (iii) 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 Credit Document except to the extent such amendment or waiver would (x) 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 Commitment Commission thereon (except (m) in connection with a waiver of applicability of any post-default increase in interest 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 then in effect (it being understood that a waiver of any Default or Event of Default or of a mandatory reduction in Default, 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), (y) Borrower must give their prior written consent to the such assignment or transfer by the Borrower of any of its rights and obligations under this Agreement or (z) release all or substantially all of the Collateral under all of the Security Documents (except as expressly provided in the Credit Documents) securing the Loans hereunder in which such participant is participating. In the case of any such participation, the participant shall not have any rights under this Agreement or any of the other Credit 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.
(b) 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) 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 delayed) unless such assignment is to an Affiliate of the assigning Lender, (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 Agent) shall not be required if any Event of Default is then in existence) all, or if less than allan amount equal to $10,000,000 or greater integral multiplies thereof, and (iii) the parties to each such assignment shall execute and deliver to the Agent an Assignment and Acceptance, together with the Note or Notes subject to such assignment and, unless such assignment is to an Affiliate of such Lender, a portion processing and recordation fee of $2,500. Borrower shall not be responsible for such processing and recordation fee or any costs or expenses incurred by any Lender or the Agent in connection with such assignment. 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, the assignee thereunder shall be a party hereto and to the extent of the interest assigned by such Assignment and Acceptance, have the rights and obligations of a Lender under this Agreement. Within five (5) Business Days after receipt of the notice and the Assignment and Acceptance, Borrower, at its own expense, shall execute and deliver to the Agent, in exchange for the surrendered Note or Notes, a new Note or Notes to the order of such as- M-82 92 signee in a principal amount equal to at least $5,000,000 in the aggregate for applicable Commitments assumed by it pursuant to such Assignment and Acceptance and new Note or Notes to the assigning Lender in the amount of its retained Commitment or assigning Lenders, of such Revolving Loan Commitments and outstanding Commitments. Such new Note or Notes shall be in an aggregate principal amount equal to the aggregate principal amount of Loans hereunder such surrendered Note or Notes, shall be dated the date of the surrendered Note or Notes which they replace, and shall otherwise be in substantially the form attached hereto.
(d) Each Lender may sell participations to one or more Eligible Transferees banks or other entities in all or a portion of its rights and obligations under this Agreement (treating including all or a portion of its Commitments in the Loans owing to it and the Notes held by it), provided, however, that (i) no Lender may sell a participation in its aggregate Commitments (after giving effect to any fund that invests permitted assignment hereof) in bank loans and any other fund that invests an amount in bank loans and is managed or advised by the same investment advisor excess of fifty percent (50%) of such fund or by aggregate Commitments, provided, however, sales of participations to an Affiliate of such investment advisor as a single Eligible Transferee)Lender shall not be included in such calculation and shall not require the consent of the Borrower; provided, each of which assignees shall become a party to this Agreement as a Lender by execution of an Assignment and Assumption Agreementhowever, provided that (i) at no such time Schedule I maximum amount shall be deemed modified applicable to reflect the Revolving Loan Commitments (and/or outstanding Loans, as the case may be) any such participation sold at any time there exists an Event of such new Lender and of the existing LendersDefault hereunder, (ii) upon the surrender of the relevant Notes assigned by the such 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)'s obligations under this Agreement shall remain unchanged, (iii) the consent of the Administrative Agent shall be required in connection with any assignment pursuant to preceding clause (y) and the consent of the Issuing such Lender shall be required in connection with any assignment pursuant remain solely responsible to preceding clauses (x) and (y) (in each case, which consent shall not be unreasonably withheld or delayed)the other parties hereto for the performance of such obligations, and (iv) the Administrative Agent shall receive at the time of each such assignment, from the assigning participating bank 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 obligations hereunder with respect to its assigned Revolving Loan Commitments and outstanding Loans. At the time of each assignment pursuant to this Section 14.04(b) to a Person which is not already a Lender hereunder, 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 Revolving Loan Commitments and related outstanding Obligations pursuant to Section 2.12 or this Section 14.04(b) would, at the time of such assignment, result in increased costs under Section 2.09 or 2.10 from those being charged by the respective assigning Lender prior to such assignment, then the Borrower other entity shall not be obligated to pay such increased costs (although the Borrower, in accordance with and pursuant entitled to the benefit (except through its selling Lender) of the cost protection provisions contained in Article 4. of this Agreement, and (v) Borrower and the Agent and other Lenders shall continue to deal solely and directly with each Lender in connection with such Lender's 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 waiver of any 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).
(ce) Nothing Any Lender or participant may, in connection with the assignment or participation or proposed assignment or participation, pursuant to this Agreement Section, disclose to the assignee or participant or proposed assignee or participant any information relating to Borrower or the other Consolidated Companies furnished to such Lender by or on behalf of Borrower or any other Consolidated Company. With respect to any disclosure of confidential, non-public, proprietary information, such proposed assignee or participant shall prevent 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 prohibit assignee shall agree not to disclose any Lender of such information except as permitted by Section 11.15. hereof. The proposed participant or assignee shall further agree to return all documents or other written material and copies thereof received from pledging its Loans and Notes hereunder any Lender, the Agent or Borrower relating to a Federal Reserve Bank in support such confidential information unless otherwise properly disposed of borrowings made by such entity.
(f) Any 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), may at any Lender which is a fund may pledge time assign all or any portion of its Loans rights in this Agreement and the Notes issued to its trustee or it to a collateral agent providing credit or credit support to Federal Reserve Bank; provided that no such Lender in support of its obligations to such trustee, such collateral agent or a holder of such obligations, as the case may be. No pledge pursuant to this clause (c) assignment shall release the transferor Lender from any of its obligations hereunder.
(g) If (i) any Taxes referred to in Section 4.8.(b) have been levied or imposed so as to require withholdings and reductions by the Borrower and payment by the Borrower of additional amounts to any Lender as a result thereof or any Lender shall make demand for payment of any material additional amounts as compensation for increased costs pursuant to Section 4.11., then and in such event, upon request from the Borrower delivered to such Lender and the Agent, such Lender shall assign, in accordance with the provisions of Section 11.6.(c), all of its rights and obligations under this Agreement and the other Credit Documents to another Lender or other financial institution selected by the Borrower and consented to by the Agent in consideration for the payment by such assignee to the Lender of the principal of and interest on the outstanding Loans accrued to the date of such assignment and the assumption of such Lender's Revolving Credit Commitment, together with any and all other amounts owing to such Lender under any provisions of this Agreement or the other Credit Documents accrued to the date of such assignment.
Appears in 1 contract
Samples: Credit Agreement (Rock Tenn 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 respective successors and assigns of the parties hereto, provided that Borrower may not assign or transfer any of its interest hereunder without the 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 all or a portion of its interests, rights and obligations under this Agreement (including all or a portion of its Commitment and the Loans at the time owing to it and the Notes held by it) to any financial institution; provided, however, that (i) no Credit Party may assign or transfer any the Agent and, except during the continuance of its rights, obligations or interests hereunder or under any other Credit Document without the prior written consent of the Lenders, (ii) although any Lender may 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 Revolving Loan Commitments hereunder except as provided in Sections 2.12 and 14.04(b)) and the transferee, assignee or participant, as the case may be, shall not constitute a “Lender” hereunder and (iii) 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 Credit Document except to the extent such amendment or waiver would (x) 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 Commitment Commission thereon (except (m) in connection with a waiver of applicability of any post-default increase in interest 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 then in effect (it being understood that a waiver of any Default or Event of Default or of a mandatory reduction in Default, 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), (y) Borrower must give their prior written consent to the such assignment or transfer by the Borrower of any of its rights and obligations under this Agreement or (z) release all or substantially all of the Collateral under all of the Security Documents (except as expressly provided in the Credit Documents) securing the Loans hereunder in which such participant is participating. In the case of any such participation, the participant shall not have any rights under this Agreement or any of the other Credit 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.
(b) 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) 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 delayed) unless such assignment is to an Affiliate 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 to another Lender or an Affiliate of another Lender; (ii) unless such assignment is to another Lender, the amount of the Commitments of the assigning LendersLender subject to each assignment (determined as of the date the assignment and acceptance with respect to such assignment is delivered to the Agent) shall not be less than the lesser of (z) an amount equal to (y) $2,500,000 or greater integral multiplies thereof or the (z) entire Commitment of the assigning Lender, and (iii) the parties to each such assignment shall execute and deliver to the Agent an Assignment and Acceptance, together with the Note or Notes subject to such assignment and, unless such assignment is to an Affiliate of such Revolving Loan Lender, a processing and recordation fee of $1,000. Borrower shall not be responsible for such processing and recordation fee or any costs or expenses incurred by any Lender or the Agent in connection with such assignment. 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, the assignee thereunder shall be a party hereto and to the extent of the interest assigned by such Assignment and Acceptance, have the rights and obligations of a Lender under this Agreement. Within five (5) Business Days after receipt of the notice and the Assignment and Acceptance, Borrower, at its own expense, shall execute and deliver to the Agent, in exchange for the surrendered Note or Notes, a new Note or Notes to the order of such assignee in a principal amount equal to the applicable Commitments assumed by it pursuant to such Assignment and outstanding Acceptance and new Note or Notes to the assigning Lender in the amount of its retained - 58 - 65 Commitment or Commitments. Such new Note or Notes shall be in an aggregate principal amount equal to the aggregate principal amount of Loans hereunder such surrendered Note or Notes, shall be dated the date of the surrendered Note or Notes which they replace, and shall otherwise be in substantially the form attached hereto.
(d) Each Lender may sell participations to one or more Eligible Transferees banks or other entities in all or a portion of its rights and obligations under this Agreement (treating any fund that invests including all or a portion of its Commitments in bank loans the Loans owing to it and any other fund that invests in bank loans and is managed or advised the Notes held by the same investment advisor of such fund or by an Affiliate of such investment advisor as a single Eligible Transfereeit), each of which assignees shall become a party to this Agreement as a Lender by execution of an Assignment and Assumption Agreementprovided, provided however, that (i) at such time Schedule I Lender's obligations under this Agreement 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 Lendersremain unchanged, (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 shall remain solely responsible to the assigning Lender upon other parties hereto for the request performance 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)obligations, (iii) the consent of the Administrative Agent shall be required in connection with any assignment pursuant to preceding clause (y) and the 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 participating bank or other entity shall not be unreasonably withheld or delayed)entitled to the benefit (except through its selling Lender) of the cost protection provisions contained in Article 4. of this Agreement, and (iv) Borrower and the Administrative Agent and other Lenders shall receive at continue to deal solely and directly with each Lender in connection with such Lender's rights and obligations under this Agreement and the time other Credit Documents, and such Lender shall retain the sole right to enforce the obligations of each such assignmentBorrower relating to the Loans and to approve any amendment, from the assigning modification or assignee Lender, the payment of a non-refundable assignment fee of $3,000. To the extent waiver of any assignment pursuant to this Section 14.04(b), the assigning Lender shall be relieved of its obligations hereunder with respect to its assigned Revolving Loan Commitments and outstanding Loans. At the time of each assignment pursuant to this Section 14.04(b) to a Person which is not already a Lender hereunder, 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 Revolving Loan Commitments and related outstanding Obligations pursuant to Section 2.12 or this Section 14.04(b) would, at the time of such assignment, result in increased costs under Section 2.09 or 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, 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).
(ce) Nothing Any Lender or participant may, in connection with the assignment or participation or proposed assignment or participation, pursuant to this Agreement Section, disclose to the assignee or participant or proposed assignee or participant any information relating to Borrower and its Subsidiaries furnished to such Lender by or on behalf of Borrower or any other Subsidiary. With respect to any disclosure of confidential, non-public, proprietary information, such proposed assignee or participant shall prevent 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 prohibit assignee shall agree not to disclose any Lender of such information except as permitted by Section 11.15. hereof. The proposed participant or assignee shall further agree to return all documents or other written material and copies thereof received from pledging its Loans and Notes hereunder any Lender, the Agent or Borrower relating to a Federal Reserve Bank in support such confidential information unless otherwise properly disposed of borrowings made by such entity.
(f) Any 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), may at any Lender which is a fund may pledge time assign all or any portion of its Loans rights in this Agreement and the Notes issued to its trustee or it to a collateral agent providing credit or credit support to Federal Reserve Bank; provided that no such Lender in support of its obligations to such trustee, such collateral agent or a holder of such obligations, as the case may be. No pledge pursuant to this clause (c) assignment shall release the transferor Lender from any of its obligations hereunder.
(g) If (i) any Taxes referred to in Section 4.8.(b) have been levied or imposed so as to require withholdings and reductions by the Borrower and payment by the Borrower of additional amounts to any Lender as a result thereof or any Lender shall make demand for payment of any material additional amounts as compensation for increased costs pursuant to Section 4.11., then and in such event, upon request from the Borrower delivered to such Lender and the Agent, such Lender shall assign, in accordance with the provisions of Section 11.6.(c), all of its rights and obligations under this Agreement and the other Credit Documents to another Lender or other financial institution selected by the Borrower and consented to by the Agent in consideration for the payment by such assignee to the Lender of the principal of and interest on the outstanding Loans accrued to the date of such assignment and the assumption of such Lender's Revolving Credit Commitment, together with any and all other amounts owing to such Lender under any provisions of this Agreement or the other Credit Documents accrued to the date of such assignment.
Appears in 1 contract
Samples: Credit Agreement (Rock Tenn 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 respective successors and assigns of the parties hereto; provided, however, that (i) no Credit Party may assign or transfer any of its rights, obligations or interests hereunder or under any other Credit Document without the prior written consent of the Lenders, (ii) although any Lender may 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 Revolving Loan Commitments hereunder except as provided in Sections 2.12 and 14.04(b)) or as otherwise separately agreed to in writing with the Borrower) and the transferee, assignee or participant, as the case may be, shall not constitute a “Lender” hereunder and (iii) 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 Credit Document except to the extent such amendment or waiver would (x) 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 Commitment Commission 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 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 then in effect (it being understood that a waiver of any Default or Event of Default or of a mandatory reduction in the 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 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), (y) consent to the assignment or transfer by the Borrower of any of its rights and obligations under this Agreement or (z) release all or substantially all of the Collateral under all of the Security Documents (except as expressly provided in the Credit Documents) securing the Loans hereunder in which such participant is participating. In the case of any such participation, the participant shall not have any rights under this Agreement or any of the other Credit 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.
(b) 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) 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) 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 Revolving Loan Commitments (and/or outstanding Loans, as the case may be), (iii) the consent of the Administrative Agent shall be required in connection with any assignment of Revolving Loan Commitments pursuant to preceding clause (y) and the 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 (iv) 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 obligations hereunder with respect to its assigned Revolving Loan Commitments and outstanding Loans. At the time of each assignment pursuant to this Section 14.04(b) to a Person which is not already a Lender hereunder, 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 Revolving Loan Commitments and related outstanding Obligations pursuant to Section 2.12 or this Section 14.04(b) would, at the time of such assignment, result in increased costs under Section 2.09 or 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, 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).
(c) Nothing in this Agreement shall prevent or prohibit any Lender 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 support of its obligations to such trustee, such collateral agent or a holder of such obligations, as the case may be. No pledge pursuant to this clause (c) shall release the transferor Lender from any of 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 will be binding upon and inure to the benefit of the Borrower, the Parent, the Agent Bank and be enforceable by the Lenders and their respective successors and assigns and all subsequent holders of any of the Notes or any portion thereof.
(b) Each Lender may assign its rights and interests and delegate its obligations hereunder in whole, but not in part, to any financial institution or institution with capital and surplus in excess of $500,000,000 reasonably acceptable to the Agent Bank and the Borrower. Any such assignment will be pursuant to an assignment and acceptance which conforms in substance with this Section 10.7 (the "Assignment and Acceptance"). The parties hereto; providedto each such assignment will execute and deliver the Assignment and Acceptance together with any Note or Notes subject to such assignment. Upon such execution and delivery, howeverfrom and after the effective date specified in each Assignment and Acceptance, that which effective date will be at least five (5) Business Days after the execution thereof, (i) no Credit Party may assign or transfer any of its rightsthe assignee thereunder will be a party hereto and, to the extent provided in such Assignment and Acceptance, have the rights and obligations or interests hereunder or under any other Credit Document without the prior written consent of the Lenders, assigning Lender hereunder and (ii) although any the assigning Lender may transferwill, 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 Revolving Loan Commitments hereunder except as provided in Sections 2.12 and 14.04(b)) and the transferee, assignee or participant, as the case may be, shall not constitute a “Lender” hereunder and (iii) 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 Credit Document except to the extent provided in such amendment Assignment and Acceptance, be released from its obligations under this Agreement.
(c) By executing and delivering the Assignment and Acceptance, each Lender and the assignee thereunder confirm to and agree as follows:
(i) other than the representation and warranty that it is the legal and beneficial owner of the interest being assigned thereby free and clear of any adverse claim, the assigning Lender makes no representation or waiver would (x) extend warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with any Loan Document or the final scheduled maturity execution, legality, validity, enforceability, genuineness, sufficiency or value of any Loan Document; (ii) the assigning Lender makes no representation or Note in which such participant is participating, or reduce the rate or extend the time of payment of interest or Commitment Commission thereon (except (m) in connection warranty and assumes no responsibility with a waiver of applicability of any post-default increase in interest rates and (n) that any amendment or modification respect 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 condition of the participant’s participation over Borrower or the amount thereof then in effect (it being understood that a waiver of any Default performance 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), (y) consent to the assignment or transfer observance by the Borrower of any of its rights and obligations under any of the Loan Documents; (iii) such assignee confirms that it has received a copy of this Agreement together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into the Assignment and Acceptance; (iv) such assignee will, independently and without reliance upon the assigning Lender, and based on such documents and information as it will deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; and (zv) release all or substantially such assignee agrees that it will perform all of the Collateral under all obligations which by the terms of this Agreement are required to be performed by the Security Documents (except as expressly assigning Lender, to the extent provided in the Credit Documents) securing the Loans hereunder in which such participant is participating. In the case of any such participation, the participant shall not have any rights under this Agreement or any of the other Credit 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) Assignment and all amounts payable by the Borrower hereunder shall be determined as if such Lender had not sold such participationAcceptance.
(bd) 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) 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 Upon execution of the Borrower (which consent shall not be unreasonably withheld or delayed Assignment 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 Acceptance by the assigning Lender and the assignee, together with any Note or assigning LendersNotes subject to such assignment, the Agent Bank will give prompt notice thereof to the Borrower. Within five (5) Business Days after receipt of such Revolving Loan Commitments notice, the Borrower will execute 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) 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 deliver to the assigning Lender upon (at the request cost and expense of the assigning Lender) in exchange for the surrendered Note or Notes a new Note or Notes to the order of such assignee in an amount equal to that portion of the principal amount outstanding under the Note being surrendered and being assumed by it pursuant to such Assignment and Acceptance and, a new Lender Note or assigning Lender, such new Notes to be in conformity with the requirements order 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) the consent of the Administrative Agent shall be required in connection with any assignment pursuant to preceding clause (y) and the 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 (iv) 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 in an amount, if any, equal to that portion of its obligations hereunder with respect to its assigned Revolving Loan Commitments and outstanding Loans. At the time principal amount of each assignment pursuant to this Section 14.04(b) to a Person the Note being surrendered which is not already a being retained by such assigning Lender hereunder, the respective assignee Lender shall, . Such new Note or Notes will be in an aggregate principal amount equal 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 Revolving Loan Commitments and related outstanding Obligations pursuant to Section 2.12 or this Section 14.04(b) would, at the time aggregate principal amount of such assignmentsurrendered Note or Notes, result in increased costs under Section 2.09 or 2.10 from those being charged by will be dated the respective assigning Lender prior to such assignment, then the Borrower shall not be obligated to pay such increased costs (although the 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 effective date of such Assignment and Acceptance and will otherwise be in substantially the respective assignment).
(c) Nothing in this Agreement shall prevent form of Exhibit A-1 or prohibit any Lender 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 support of its obligations to such trustee, such collateral agent or a holder of such obligationsA-2, as the case may be. No pledge pursuant Canceled Notes will be promptly returned to the Borrower simultaneously with the execution of such new Notes.
(e) Notwithstanding the foregoing, each Lender may sell participations to one or more commercial banks, each of which have capital and surplus in excess of $500,000,000, in all or a portion of its rights and obligations under this clause Agreement. Each such Lender shall provide written notice to the other Lenders, the Agent Bank and the Borrower of any such participation.
(cf) shall release Without the transferor Lender from prior written consent of the Majority Lenders, neither the Borrower nor the Parent may assign any of its rights or delegate any of its duties or obligations hereunder.
(g) Any party hereto which assigns its rights and obligations hereunder shall pay to the Agent Bank an administrative fee of $5,000.
Appears in 1 contract
Benefit of Agreement Assignments and Participations. (a) This Agreement shall be binding upon and inure to the benefit of and be enforceable by the respective successors and assigns of the parties hereto, provided that Borrower may not assign or transfer any of its interest hereunder without the 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 all or a portion of its interests, rights and obligations under this Agreement (including all or a portion of its Commitment and the Loans at the time owing to it and the Notes held by it) to any Eligible Assignee; provided, however, that (i) no Credit Party may assign or transfer any the Agent and, except during the continuance of its rights, obligations or interests hereunder or under any other Credit Document without the prior written consent of the Lenders, (ii) although any Lender may 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 Revolving Loan Commitments hereunder except as provided in Sections 2.12 and 14.04(b)) and the transferee, assignee or participant, as the case may be, shall not constitute a “Lender” hereunder and (iii) 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 Credit Document except to the extent such amendment or waiver would (x) 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 Commitment Commission thereon (except (m) in connection with a waiver of applicability of any post-default increase in interest 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 then in effect (it being understood that a waiver of any Default or Event of Default or of a mandatory reduction in Default, 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), (y) Borrower must give their prior written consent to the such assignment or transfer by the Borrower of any of its rights and obligations under this Agreement or (z) release all or substantially all of the Collateral under all of the Security Documents (except as expressly provided in the Credit Documents) securing the Loans hereunder in which such participant is participating. In the case of any such participation, the participant shall not have any rights under this Agreement or any of the other Credit 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.
(b) 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) 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 delayed) unless such assignment is to an Affiliate of the assigning Lender, (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 Agent) shall not be required if any Event of Default is then in existence) all, or if less than allan amount equal to $5,000,000 or greater integral multiplies thereof, and (iii) the parties to each such assignment shall execute and deliver to the Agent an Assignment and Acceptance, together with the Note or Notes subject to such assignment and, unless such assignment is to an Affiliate of such Lender, a portion processing and recordation fee of $3,000. Borrower shall not be responsible for such processing and recordation fee or any costs or expenses incurred by any Lender or the Agent in connection with such assignment. 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, the assignee there-under shall be a party hereto and to the extent of the interest assigned by such Assignment and Acceptance, have the rights and obligations of a Lender under this Agreement. Within five (5) Business Days after receipt of the notice and the Assignment and Acceptance, Borrower, at its own expense, shall execute and deliver to the Agent, in exchange for the surrendered Note or Notes, a new Note or Notes to the order of such assignee in a principal amount equal to at least $5,000,000 in the aggregate for applicable Commitments or Loans assumed by it pursuant to such Assignment and Acceptance and new Note or Notes to the assigning Lender in the amount of its retained Commitment or assigning Lenders, Commitments or amount of such Revolving Loan Commitments its retained Loans. Such new Note or Notes shall be in aggregate and outstanding a principal amount equal to the aggregate principal amount of Loans hereunder such surrendered Note or Notes, shall be dated the date of the surrendered Note or Notes which they replace, and shall otherwise be in substantially the form attached hereto.
(d) Each Lender may, without the consent of the Borrower, sell participations to one or more Eligible Transferees banks or other entities in all or a portion of its rights and obligations under this Agreement (treating any fund that invests including all or a portion of its Commitments in bank loans the Loans owing to it and any other fund that invests in bank loans and is managed or advised the Notes held by the same investment advisor of such fund or by an Affiliate of such investment advisor as a single Eligible Transfereeit), each of which assignees shall become a party to this Agreement as a Lender by execution of an Assignment and Assumption Agreementprovided, provided however, that (i) at such time Schedule I Lender's obligations under this Agreement 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 Lendersremain unchanged, (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 shall remain solely responsible to the assigning Lender upon other parties hereto for the request performance 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)obligations, (iii) the consent of the Administrative Agent shall be required in connection with any assignment pursuant to preceding clause (y) and the 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 participating bank or other entity shall not be unreasonably withheld or delayed)entitled to the benefit (except through its selling Lender) of the cost protection provisions contained in Article 4. of this Agreement, and (iv) Borrower and the Administrative Agent and other Lenders shall receive at continue to deal solely and directly with each Lender in connection with such Lender's rights and obligations under this Agreement and the time other Credit Documents, and such Lender shall retain the sole right to enforce the obligations of each such assignmentBorrower relating to the Loans and to approve any amendment, from the assigning modification or assignee Lender, the payment of a non-refundable assignment fee of $3,000. To the extent waiver of any assignment pursuant to this Section 14.04(b), the assigning Lender shall be relieved of its obligations hereunder with respect to its assigned Revolving Loan Commitments and outstanding Loans. At the time of each assignment pursuant to this Section 14.04(b) to a Person which is not already a Lender hereunder, 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 Revolving Loan Commitments and related outstanding Obligations pursuant to Section 2.12 or this Section 14.04(b) would, at the time of such assignment, result in increased costs under Section 2.09 or 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, in accordance with and pursuant to the other provisions of this Agreement, . Any Lender selling a participation hereunder shall be obligated provide prompt written notice to pay any other increased costs Agent of the type described above resulting from changes after the date name of the respective assignment)such participant.
(ce) Nothing Any Lender or participant may, in connection with the assignment or participation or proposed assignment or participation, pursuant to this Agreement Section, disclose to the assignee or participant or proposed assignee or participant any information relating to Borrower or the other Consolidated Companies furnished to such Lender by or on behalf of Borrower or any other Consolidated Company. With respect to any disclosure of confidential, non-public, proprietary information, such proposed assignee or participant shall prevent 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 prohibit assignee shall agree not to disclose any Lender of such information except as 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 pledging its Loans and Notes hereunder any Lender, the Agent or Borrower relating to a Federal Reserve Bank in support such confidential information unless otherwise properly disposed of borrowings made by such entity.
(f) Any 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), may at any Lender which is a fund may pledge time assign all or any portion of its Loans rights under this Agreement and the Notes issued to its trustee or it to a collateral agent providing credit or credit support to Federal Reserve Bank; provided that no such Lender in support of its obligations to such trustee, such collateral agent or a holder of such obligations, as the case may be. No pledge pursuant to this clause (c) assignment shall release the transferor Lender from any of its obligations hereunder.
(g) If (i) any Taxes referred to in Section 3.8.
Appears in 1 contract
Benefit of Agreement Assignments and Participations. (a) This Agreement shall be binding upon and inure to the benefit of and be enforceable by the respective successors and assigns of the parties hereto; provided, however, that (i) no Credit Party neither Guarantor may assign or transfer any of its rights, obligations or interests interest hereunder or under any other Relevant Credit Document Agreement without the 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 to its Affiliates, provided that until the Lenderslast 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) Following the last day of the Availability Period, each Lender may, in accordance with Applicable Law and this Section, assign its Loan or any portion thereof to any other Person by execution of an Assignment Agreement; provided that:
(i) any such partial assignment (other than to 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, if less, all of such Lender’s remaining Loans),
(ii) although upon each such assignment, the assignor and assignee shall deliver an Assignment Agreement to the Administrative Agent,
(iii) 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 assignment agreement be executed and delivered in respect of such Loans pursuant to the Relevant Credit Agreement relating to such Loans,
(v) each such assignment shall 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 date that is five (5) Business Days after the 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 may transferto 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, assign or grant participations 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 its rights hereunder, 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 shall remain a “Lender” for all purposes hereunder (and may not transfer or assign all or any portion of its Revolving Loan Commitments hereunder except as provided in Sections 2.12 and 14.04(b)) and from the transferee, assignee or participant, as the case may be, shall not constitute a “Lender” hereunder 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.
(d) 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 shall have, to the extent of such assignment, the obligations, rights and benefits of a Lender hereunder holding the Commitment (or portion thereof) assigned to it and specified in such Assignment Agreement (in addition to the Commitment, if any, theretofore held by such assignee), and the assigning Lender shall, to the extent of such assignment of its Commitment, be released from the Commitment (or portion thereof) so assigned. Upon its 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 shall transfer or grant any participation amount under which the participant shall have rights to approve any amendment to or waiver Section 2.7 of this Agreement or any other Credit Document except to the extent such amendment Sections 3.1, 3.3, 3.4 or waiver would (x) extend the final scheduled maturity 3.5 of any Loan or Note in which such participant Relevant Credit Agreement that is participating, or reduce greater than the rate or extend the time of payment of interest or Commitment Commission thereon (except (m) in connection with a waiver of applicability of any post-default increase in interest rates and (n) amount that any amendment such Borrower or modification the Guarantors would have been obligated to the financial definitions in this Agreement shall pay such Lender’s assignor if such assigning Lender had 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 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 assigned to 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), (y) consent to the assignment or transfer by the Borrower of 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.
(e) The Administrative Agent shall maintain a copy of each Assignment Agreement delivered to it and a register for the recordation of the names and addresses of the Lenders, and the Commitments and principal amount of the Loans owing to, each Lender pursuant to the terms hereof from time to time (the “Register”). The entries in the Register shall be conclusive in the absence of manifest error and the Guarantors, the Administrative Agent and the Lenders may treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement and the Relevant Credit Agreement, notwithstanding notice to the contrary. All payments under the Relevant Credit Agreement in respect of principal or interest shall be made to the appropriate Person named in the Register. The Register shall be available for inspection by the Guarantors and any Lender, at any reasonable time and from time to time upon reasonable prior notice.
(f) A Lender may assign its Loans and its rights and obligations thereunder only by complying with the terms of this Agreement. No such assignment shall be effected until, and such assignee shall succeed to the rights of a holder only upon, final acceptance and registration of the assignment by the Administrative Agent in the Register. Prior to the registration of any 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 as the Person entitled to exercise the rights represented thereby, any notice to the contrary notwithstanding.
(g) If any Lender 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.
(h) Following the last day of the Availability Period, 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 or (z) release all or substantially all of the Collateral under all of the Security Documents (except as expressly provided in the Relevant Credit Documents) securing the Loans hereunder in which such participant is participating. In the case of any such participation, the participant shall not have any rights under this Agreement or any of the other Credit Documents (the participantParticipant’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 participation.
(b) Notwithstanding Loan and as if such Lender were funding such Loans in the foregoing, any Lender same way that it is funding the portion of such Loans in which no participations have been sold (or any Lender together with one or more other Lenders) may (x) assign if all or a portion of its Revolving Loan Commitment and/or its outstanding Loans to its (i) parent company has been 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) participated, in the case of any Lender same way 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 it was funding 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) 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 Revolving Loan Commitments (and/or outstanding Loans, as the case may be), (iii) the consent of the Administrative Agent shall be required in connection with any assignment pursuant to preceding clause (y) and the 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 (iv) 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 obligations hereunder with respect to its assigned Revolving Loan Commitments and outstanding Loans. At the time of each assignment pursuant to this Section 14.04(b) to a Person which is not already a Lender hereunder, 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 Revolving Loan Commitments and related outstanding Obligations pursuant to Section 2.12 or this Section 14.04(b) would, at the time of such assignmentparticipation). 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, result in increased costs under Section 2.09 or 2.10 from those being charged by without the respective assigning Lender prior consent of the Participant, agree to such assignment, then anything requiring the Borrower shall not be obligated to pay such increased costs vote of 100% of the applicable Lenders hereunder.
(although the Borrower, in accordance with and pursuant i) In addition to the other assignments and participations permitted under the foregoing provisions of this AgreementSection, shall be obligated to pay any other increased costs of the type described above resulting from changes after the date of the respective assignment).
(c) Nothing in this Agreement shall prevent or prohibit any Lender 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 may (but without the notice or consent of the Administrative Agent or the Borrower), any Lender which is a fund may other Person and without payment of any fee) assign and pledge all or any portion of its Loans and Notes to its trustee any U.S. Federal Reserve Bank (or other central banking authority) as collateral security pursuant to a collateral agent providing credit or credit support to Regulation A of the Board of Governors of the U.S. Federal Reserve System and any operating circular issued by such Lender in support of its obligations to such trustee, such collateral agent or a holder of such obligations, as the case may beFederal Reserve Bank. No pledge pursuant to this clause (c) such assignment shall release the transferor assigning Lender from any of its obligations hereunder.
(j) 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 relevant Borrower and the Guarantors furnished to such Lender by or on behalf of such Borrower or the Guarantors; provided that, before any such disclosure, the assignee or participant or proposed assignee or participant shall agree to preserve the confidentiality of any Confidential Information relating to the relevant Borrower and the Guarantors received by it from such 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 and be enforceable by the respective successors and assigns of the parties hereto; provided, however, that (i) no Credit Party may assign or transfer any of its rights, obligations or interests hereunder or under any other Credit Document without the prior written consent of the Lenders, (ii) although any Lender may 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 Revolving Loan Commitments hereunder except as provided in Sections 2.12 and 14.04(b)) or as otherwise separately agreed to in writing with the Borrower) and the transferee, assignee or participant, as the case may be, shall not constitute a “Lender” hereunder and (iii) 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 Credit Document except to the extent such amendment or waiver would (x) 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 Commitment Commission Deferred Fee thereon (except (m) in connection with a waiver of applicability of any post-default increase in interest 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 then in effect (it being understood that a waiver of any Default or Event of Default or of a mandatory reduction in the 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 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), (y) consent to the assignment or transfer by the Borrower of any of its rights and obligations under this Agreement or (z) release all or substantially all of the Collateral under all of the Security Documents (except as expressly provided in the Credit Documents) securing the Loans hereunder in which such participant is participating. In the case of any such participation, the participant shall not have any rights under this Agreement or any of the other Credit 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.
(b) 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) 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 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 such Lender or by an Affiliate of such investment advisor (so long as such fund or other entity 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 1,000,000 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 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) 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) 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 Revolving Loan Commitments (and/or outstanding Loans, as the case may be), and (iii) the consent of the Administrative Agent shall be required in connection with any assignment pursuant to preceding clause (y) and the 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 (iv) 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 shall not 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 obligations hereunder with respect to its assigned Revolving Loan Commitments and outstanding Loans. At the time of each assignment pursuant to this Section 14.04(b) to a Person which is not already a Lender hereunder, 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 Revolving Loan Commitments and related outstanding Obligations pursuant to Section 2.12 or this Section 14.04(b) would, at the time of such assignment, result in increased costs under Section 2.09 or 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, 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).
(c) Nothing in this Agreement shall prevent or prohibit any Lender 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 support of its obligations to such trustee, such collateral agent or a holder of such obligations, as the case may be. No pledge pursuant to this clause (c) shall release the transferor Lender from any of 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 respective successors and assigns of the parties hereto; provided, however, that (i) no Credit Party may assign or transfer any of its rights, obligations or interests hereunder or under any other Credit Document without the prior written consent of the Lenders, (ii) although any Lender may 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 Revolving Loan Commitments hereunder except as provided in Sections 2.12 and 14.04(b13.04(b)) and the transferee, assignee or participant, as the case may be, shall not constitute a “Lender” hereunder and (iii) 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 Credit Document except to the extent such amendment or waiver would (x) 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 Commitment Commission thereon (except (m) in connection with a waiver of applicability of any post-default increase in interest 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 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), (y) consent to the assignment or transfer by the Borrower Borrowers of any of its their rights and obligations under this Agreement or (z) release all or substantially all of the Collateral under all of the Security Documents (except as expressly provided in the Credit Documents) securing the Loans hereunder in which such participant is participating. In the case of any such participation, the participant shall not have any rights under this Agreement or any of the other Credit 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.
(b) 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) 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 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) upon the surrender of the relevant Notes assigned by the Lender, new Notes will be issued, at the Borrower’s 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) the consent of the Administrative Agent shall be required in connection with any assignment pursuant to preceding clause (y) and the 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 (iv) 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(b13.04(b), the assigning Lender shall be relieved of its obligations hereunder with respect to its assigned Revolving Loan Commitments and outstanding Loans. At the time of each assignment pursuant to this Section 14.04(b13.04(b) to a Person which is not already a Lender hereunder, the respective assignee Lender shall, to the extent legally entitled to do so, comply with Section 5.04(b4.04(b). To the extent that an assignment of all or any portion of a Lender’s Revolving Loan Commitments and related outstanding Obligations pursuant to Section 2.12 or this Section 14.04(b13.04(b) would, at the time of such assignment, result in increased costs under Section 2.09 or 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 BorrowerBorrowers, 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).
(c) Nothing in this Agreement shall prevent or prohibit any Lender 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 BorrowerBorrowers), 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 support of its obligations to such trustee, such collateral agent or a holder of such obligations, as the case may be. No pledge pursuant to this clause (c) shall release the transferor Lender from any of its obligations hereunder.
Appears in 1 contract
Benefit of Agreement Assignments and Participations. (a) 12.1. Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of Obligors, Agent and be enforceable by the Secured Parties and their respective successors and assigns of the parties hereto; providedassigns, however, except that (ia) no Credit Party may Obligor shall have the right to assign its rights or transfer any of delegate its rights, obligations or interests hereunder or under any other Credit Document without Documents, and (b) any assignment by a Lender must be made in compliance with Section 12.3. Agent may treat the prior written Person which made any Loan as the owner thereof for all purposes until such Person makes an assignment in accordance with Section 12.3. Any authorization or consent of the Lendersa Lender shall be 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, (ii) although any Lender may transferat any time, assign without the consent of, or grant participations notice to, the Borrowers, sell to a financial institution ("Participant") a participating interest in its the rights hereunderand obligations of such Lender under any Credit Documents. Despite any sale by a Lender of participating interests to a Participant, such Xxxxxx's obligations under the Credit Documents shall remain unchanged, such Lender shall remain a “Lender” solely responsible to the other parties hereto for performance of such obligations, such Lender shall remain the holder of its Loans and Commitments for all purposes hereunder (and may not transfer or assign all or any portion of its Revolving Loan Commitments hereunder except as provided in Sections 2.12 and 14.04(b)) and the transfereepurposes, assignee or participant, as the case may be, shall not constitute a “Lender” hereunder and (iii) 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 Credit Document except to the extent such amendment or waiver would (x) 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 Commitment Commission thereon (except (m) in connection with a waiver of applicability of any post-default increase in interest 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 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), (y) consent to the assignment or transfer by the Borrower of any of its rights and obligations under this Agreement or (z) release all or substantially all of the Collateral under all of the Security Documents (except as expressly provided in the Credit Documents) securing the Loans hereunder in which such participant is participating. In the case of any such participation, the participant shall not have any rights under this Agreement or any of the other Credit 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.
(b) Notwithstanding the foregoingparticipating interests, any Lender (or any Lender together and Obligors and Agent shall continue to deal solely and directly 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) 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) 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 Revolving Loan Commitments (and/or outstanding Loans, as the case may be), (iii) the consent of the Administrative Agent shall be required in connection with any assignment pursuant to preceding clause (y) and the consent Credit Documents. For the avoidance of the Issuing doubt, each Lender shall be required in connection with any assignment pursuant responsible for the indemnity and obligations under Section 11.6 and Section 13.3 without regard to preceding clauses (x) and (y) (in each case, which consent shall not be unreasonably withheld or delayed), and (iv) 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 existence of any assignment pursuant to this Section 14.04(b), the assigning participation. Each Lender shall be relieved solely responsible for notifying its Participants of its obligations hereunder with respect any matters under the Credit Documents, and Agent and the other Lenders shall not have any obligation or liability to its assigned Revolving Loan Commitments and outstanding Loansany such Participant. At the time of each assignment pursuant to this Section 14.04(b) to a Person which is not already a Lender hereunder, the respective assignee Lender shall, Each Participant shall be entitled to the extent legally entitled benefits of Section 5.8 (subject to do so, comply with the requirements and limitations therein and Section 5.04(b). To 5.9 (it being understood that the extent that an assignment of all or any portion of a Lender’s Revolving Loan Commitments and related outstanding Obligations pursuant to Section 2.12 or this Section 14.04(b) would, at the time of such assignment, result in increased costs documentation required under Section 2.09 or 2.10 from those being charged by the respective assigning Lender prior to such assignment, then the Borrower 5.9 shall not be obligated to pay such increased costs (although the Borrower, in accordance with and pursuant delivered 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 assignmentparticipating Lender).
(c) Nothing in this Agreement shall prevent or prohibit any Lender 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 support of its obligations to such trustee, such collateral agent or a holder of such obligations, as the case may be. No pledge pursuant to this clause (c) shall release the transferor Lender from any of its obligations hereunder.Section 3.6.1
Appears in 1 contract
Samples: Credit Agreement (Calumet Specialty Products Partners, L.P.)
Benefit of Agreement Assignments and Participations. (a) This Agreement shall be binding upon and inure to the benefit of the Borrower, the Lenders and be enforceable by the Agent and their respective successors and assigns assigns, and all subsequent holders of any of the parties hereto; provided, however, that Notes or any portion hereof.
(i) no Credit Any such assignment (other than of all of a Lender's Notes and Commitments) made other than to another Lender or a Related Lender Party may assign or transfer any shall reflect an assignment of its rightssuch assigning Lender's Notes and Commitments which is in an aggregate principal amount of at least $5,000,000, obligations or interests hereunder or under any other Credit Document without the prior written consent and if greater, shall be an integral multiple of the Lenders, $1,000,000.
(ii) although Notwithstanding any provision of this Agreement to the contrary, each Lender may transfer, assign or grant participations in its rights hereunder, such Lender shall remain a “Lender” for all purposes hereunder (and may not transfer or at any time assign all or any portion of its Revolving rights under this Agreement and each of the other Loan Commitments Documents, including, without 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); provided that no such assignment shall release 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 except as provided shall be pursuant to an instrument of assignment and acceptance (the "Assignment and Acceptance") substantially in Sections 2.12 and 14.04(b)the form of SCHEDULE ------------------------- -------- 13(B)(III) and the transfereeparties 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, (A) the assignee or participantthereunder shall become a party hereto and, as the case may be, shall not constitute a “Lender” hereunder and (iii) 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 Credit Document except to the extent provided in such amendment or waiver would (x) extend Assignment and Acceptance, have the final scheduled maturity rights and obligations of any Loan or Note in which such participant is participating, or reduce the rate or extend the time of payment of interest or Commitment Commission thereon (except (m) in connection a Lender hereunder with a waiver of applicability of any post-default increase in interest rates Commitments and outstanding Loans as set forth therein and (nB) that any amendment or modification the assigning Lender thereunder shall, to the financial definitions 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 not constitute be deemed to amend this Agreement to the extent, and only to the extent, necessary to reflect the addition of the assignee as a reduction 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) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and the assignee together with the Note(s) subject to such assignment and payment by the assignee to the Agent of a registration and processing fee of $3,000, the Agent shall accept such Assignment and Acceptance. Promptly upon delivering such Assignment and Acceptance to the Agent, the assigning Lender shall give notice thereof to the Borrower and the other Lenders pursuant to a Notice of Assignment and Acceptance substantially in the rate form of interest SCHEDULE 13(B)(IV). Within five (5) Business Days after receipt of ------------------ such notice, the Borrower shall execute and deliver to the Agent in exchange for purposes such surrendered Note(s) one or more new Notes payable to the order of this clause (x)) or reduce such assignee in an amount equal to the principal amount thereof, or increase the amount portion of the participant’s participation over Commitments assumed, and the Loans purchased, by such assignee pursuant to such Assignment and Acceptance and one or more new Notes payable to the order of the assigning Lender in an amount thereof then in effect (equal to the portion of the Commitments and outstanding Loans retained by it being understood that a waiver of any Default or Event of Default or of a mandatory reduction in hereunder. Each new Note shall be dated the Total Commitment shall not constitute a change in the terms effective date of such participation, Assignment and that an increase Acceptance and shall 66 otherwise be in any Revolving Loan Commitment or Loan substantially the form provided in SECTION 1.01. The canceled Note(s) surrendered by the assigning Lender shall be permitted without the consent of any participant if the participant’s participation is not increased as a result thereof), (y) consent returned to the assignment Borrower upon the execution and delivery of such new Note(s).
(v) Each Lender may sell participations in all or transfer by the Borrower of any a portion of its rights and obligations under this Agreement or (z) release including, without limitation, all or substantially all a portion of its Commitments and the Collateral Notes held by it); provided, however, that, (A) the selling Lender shall remain obligated under all of this Agreement to the Security Documents (except extent as expressly provided in the Credit Documents) securing the Loans hereunder in which such participant is participating. In the case of any 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 shall to take or refrain from taking any action hereunder or under any other Loan Document, except that the selling Lender may agree not have any rights under this Agreement or to consent, without such participant's consent, to any of the other Credit Documents actions referred to in ARTICLE XII, to the extent that the same require the consent of each Lender hereunder, (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 theretoD) and all amounts payable by the Borrower hereunder shall be determined as if such Lender had not sold such participationparticipation 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.
(bvi) Notwithstanding the foregoing, any Lender (Except for an assignment made to a separately organized branch 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) 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) a Lender, no assignment or (iii) participation referred to one or more Lenders or (y) assign with above shall be permitted without the prior written 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) 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 Revolving Loan Commitments (and/or outstanding Loans, as the case may be), (iii) the consent of the Administrative Agent shall be required in connection with any assignment pursuant to preceding clause (y) and the consent of the Issuing Lender shall be required in connection with any assignment pursuant to preceding clauses (x) and (y) (in each caseAgent, 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 (ivb)(ii) of this Section, shall be permitted without the Administrative Agent prior written consent of the Borrower, which consent shall receive at the time not be unreasonably withheld or delayed.
(viii) The Borrower may not assign any of each such assignmentits rights or delegate any of its duties or obligations hereunder.
(ix) Any Lender may, from the assigning or assignee Lender, the payment of a non-refundable assignment fee of $3,000. To the extent of in connection with any assignment or participation pursuant to this Section 14.04(b)Section, the assigning Lender shall be relieved of its obligations hereunder with respect to its assigned Revolving Loan Commitments and outstanding Loans. At the time of each assignment pursuant to this Section 14.04(b) to a Person which is not already a Lender hereunder, the respective assignee Lender shall, disclose to the extent legally entitled assignee or participant any information relating to do so, comply with Section 5.04(b). To the extent that an assignment of all or any portion of a Lender’s Revolving Loan Commitments and related outstanding Obligations pursuant to Section 2.12 or this Section 14.04(b) would, at the time of such assignment, result in increased costs under Section 2.09 or 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, 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).
(c) Nothing in this Agreement shall prevent or prohibit any Lender 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 Companies furnished to such Lender in support by or on behalf of its obligations to the Borrower and such trustee, assignee or participant shall treat such collateral agent or a holder of such obligations, information as the case may be. No pledge pursuant to this clause (c) shall release the transferor Lender from any of its obligations hereunderconfidential.
Appears in 1 contract
Samples: Credit Agreement (Voyager Net Inc)
