Binding Effect; Assignment. (a) This Agreement and the other Loan Documents to which Borrower is a Party will be binding upon and inure to the benefit of Borrower, the Administrative Agent, each of the Lenders, and their respective successors and assigns, except that Borrower may not assign its rights hereunder or thereunder or any interest herein or therein without the prior written consent of all the Lenders. Each Lender represents that it is not acquiring its Note with a view to the distribution thereof within the meaning of the Securities Act of 1933, as amended (subject to any requirement that disposition of such Note must be within the control of such Lender). Any Lender may at any time pledge its Note or any other instrument evidencing its rights as a Lender under this Agreement to a Federal Reserve Bank, but no such pledge shall release that Lender from its obligations hereunder or grant to such Federal Reserve Bank the rights of a Lender hereunder absent foreclosure of such pledge. (b) From time to time following the Closing Date, each Lender may assign to one or more Eligible Assignees all or any portion of its rights and obligations under this Agreement (including all or a portion of its Commitment, the Advances owing to it and the Note or Notes held by it); provided that, subject to subsection (f) below, (i) such Eligible Assignee, if not then a Lender or an Affiliate of the assigning Lender, shall be approved by the Administrative Agent and Borrower (neither of which approvals shall be unreasonably withheld or delayed), (ii) such assignment shall be evidenced by an Assignment and Acceptance, a copy of which shall be furnished to the Administrative Agent as hereinbelow provided, (iii) except in the case of an assignment to an Affiliate of the assigning Lender, to another Lender or of the entire remaining rights and obligations of the assigning Lender under this Agreement, the assignment shall not assign a portion of such assigning Lender’s Commitments and/or Advances owing to such assigning Lender that is equivalent to less than $3,000,000, and (iv) the effective date of any such assignment shall be as specified in the Assignment and Acceptance, but not earlier than the date which is five (5) Banking Days after the date the Administrative Agent has received the Assignment and Acceptance. Upon the effective date of such Assignment and Acceptance, the Eligible Assignee named therein shall be a Lender for all purposes of this Agreement, with the Commitments and/or Advances therein set forth and, to the extent of such Commitments and/or Advances, the assigning Lender shall be released from its further obligations under this Agreement. Borrower agrees that it shall execute and deliver (against delivery by the assigning Lender to Borrower of such Lender’s Notes) to such assignee Lender, Notes evidencing that assignee Lender’s Commitments and/or Advances, and to the assigning Lender, Notes evidencing the remaining balance of the Commitments and/or Advances retained by the assigning Lender. (c) By executing and delivering an Assignment and Acceptance, the Eligible Assignee thereunder acknowledges and agrees that: (i) other than the representation and warranty that it is the legal and beneficial owner of the rights and obligations hereunder being assigned thereby free and clear of any adverse claim, the assigning Lender has made 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 or sufficiency of this Agreement or any other Loan Document; (ii) the assigning Lender has made no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance by Borrower of the Obligations; (iii) it has received a copy of this Agreement, together with copies of the most recent financial statements delivered pursuant to Section 7.1 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) it will, independently and without reliance upon the Administrative Agent or any Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) it appoints and authorizes the Administrative Agent to take such action and to exercise such powers under this Agreement as are delegated to the Administrative Agent by this Agreement; and (vi) 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. (d) The Administrative Agent shall maintain at the Administrative Agent’s Office a copy of each Assignment and Acceptance delivered to it and a register (the “Register”) of the names and address of each of the Lenders and the Pro Rata Share of the Commitments held by each Lender, giving effect to each Assignment and Acceptance. The Register shall be available during normal business hours for inspection by Borrower or any Lender upon reasonable prior notice to the Administrative Agent. After receipt of a completed Assignment and Acceptance executed by any Lender and an Eligible Assignee, and receipt of an assignment fee of $3,500 from such Lender or Eligible Assignee, the Administrative Agent shall, promptly following the effective date thereof, provide to Borrower and the Lenders a revised Schedule 1.1 giving effect thereto. Borrower, the Administrative Agent and the Lenders shall deem and treat the Persons listed as Lenders in the Register as the holders and owners of the Pro Rata Shares of the Revolving Facility listed therein for all purposes hereof, and no assignment or transfer of any Lender’s rights and obligations hereunder shall be effective, in each case unless and until an Assignment and Acceptance effecting the assignment or transfer thereof shall have been accepted by the Administrative Agent and recorded in the Register as provided above. Prior to such recordation, all amounts owed with respect to the applicable Pro Rata Share of the Revolving Facility shall be owed to the Lender listed in the Register as the owner thereof, and any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is listed in the Register as a Lender shall be conclusive and binding on any subsequent holder, assignee or transferee of the corresponding Pro Rata Share of the Revolving Facility. (e) Each Lender may from time to time grant participations to one or more banks or other financial institutions in or to all or a portion of its rights and/or obligations under this Agreement; provided, however, that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) the participating banks or other financial institutions shall not be a Lender hereunder for any purpose except, if the participation agreement so provides, for the purposes of Sections 3.5, 3.6, 11.11 and 11.21 but only to the extent that the cost of such benefits to Borrower does not exceed the cost which Borrower would have incurred in respect of the Lender granting such participation absent the participation, (iv) Borrower, the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement, (v) the participation interest shall be expressed as a percentage of the granting Lender’s Pro Rata Share of the Revolving Facility as it then exists and shall not restrict an increase in the Revolving Facility (or the aggregate Commitments pertaining thereto), or in the granting Lender’s rights and obligations hereunder, so long as the amount of the participation interest is not affected thereby and (vi) the consent of the holder of such participation interest shall not be required for amendments or waivers of provisions of the Loan Documents other than those which (A) extend any Amortization Date, any applicable Maturity Date or any other date upon which any payment of money is due to the Lenders, (B) reduce the rate of interest on the Notes, any fee or any other monetary amount payable to the Lenders, (C) reduce the amount of any installment of principal due under the Notes, or (D) release any Guarantor from its Guaranty. (f) Borrower agrees that upon the occurrence and during the continuance of any Event of Default, each Lender shall be entitled to assign its rights hereunder and under the Loan Documents, or grant participation interests in its rights under this Agreement and the Loan Documents, to any Person, in whole or in any part thereof, notwithstanding any provisions contained herein (including those set forth in subsection (b) above) or in any other Loan Document to the contrary, except that, other than (i) assignments by a Lender to an Affiliate of such Lender or to another Lender or (ii) pledges described in the last sentence of subsection (a) above, no assignment shall be made without the approval of the Administrative Agent.
Appears in 11 contracts
Samples: Credit Agreement (American States Water Co), Credit Agreement (American States Water Co), Credit Agreement (American States Water Co)
Binding Effect; Assignment. (a) This Agreement and the other Loan Documents to which Borrower is a Party will shall be binding upon and inure to the benefit of the Borrower, the Guarantor, the Administrative Agent, Agent and each of the LendersLender, and their respective successors and permitted assigns, except that the Borrower may and the Guarantor shall not have the right to assign its rights hereunder or thereunder or any interest herein or therein without the prior written consent of all the Administrative Agent and the Lenders, and any assignment by the Borrower or Guarantor in violation of this Section 10.8 shall be null and void. Each Lender represents that it is not acquiring its Note with a view Notwithstanding anything to the distribution thereof within contrary in the meaning first sentence of the Securities Act of 1933this Section 10.8, as amended (subject to any requirement that disposition of such Note must be within the control of such Lender). Any Lender may at any time pledge its Note time, without the consent of the Administrative Agent, assign all or any other instrument evidencing portion of its rights as a Lender under this Agreement and any Loan Note to a Federal Reserve Bank, but ; provided that no such assignment or pledge shall release that the transferor Lender from its obligations hereunder or grant hereunder. Subject to such Federal Reserve Bank the rights terms of a Lender hereunder absent foreclosure of such pledge.
(b) From time to time following the Closing DateAcknowledgment Agreements, each Lender may assign to one or more Eligible Assignees banks or other entities all or any part or portion of, or may grant participations to one or more banks or other entities in all or any part or portion of its rights and obligations under this Agreement hereunder (including all or a portion of its Commitment, the Advances owing to it and the Note its Loan Notes or Notes held by itits Advances); provided that, subject that (A) each party to subsection (f) belowsuch assignment shall execute and deliver an Assignment and Assumption to the Administrative Agent, (iB) shall be to (x) a bank, other financial institution or lender which is reasonably acceptable to the Administrative Agent, or (y) a “qualified institutional buyer”, as defined in Rule 144A under the Securities Act of 1933, as amended, reasonably acceptable to the Administrative Agent, and (C) unless an Event of Default has occurred and is continuing, the Borrower shall have the right to consent to any assignment of the Lender’s rights and obligations under this Agreement, such Eligible Assigneeconsent not to be unreasonably withheld, if not then a conditioned or delayed; provided that no such consent of the Administrative Agent or the Borrower shall be required for an assignment to any Lender or an Affiliate of a Lender. Upon, and to the assigning Lenderextent of, shall be approved any assignment (unless otherwise stated therein) made by any Lender hereunder, the Administrative Agent and Borrower (neither assignee or purchaser of which approvals shall be unreasonably withheld or delayed), (ii) such assignment shall be evidenced by an Assignment and Acceptance, a copy of which shall be furnished to the Administrative Agent as hereinbelow provided, (iii) except in the case of an assignment to an Affiliate of the assigning Lender, to another Lender or of the entire remaining rights and obligations of the assigning Lender under this Agreement, the assignment shall not assign a portion of such assigning Lender’s Commitments and/or Advances owing to such assigning Lender that is equivalent to less than $3,000,000, and (iv) the effective date of any such assignment shall be as specified in the Assignment and Acceptance, but not earlier than the date which is five (5) Banking Days after the date the Administrative Agent has received the Assignment and Acceptance. Upon the effective date of such Assignment and Acceptance, the Eligible Assignee named therein shall be a Lender hereunder for all purposes of this AgreementAgreement and shall have all the rights, with the Commitments and/or Advances therein set forth and, to the extent of such Commitments and/or Advances, the assigning Lender shall be released from its further obligations under this Agreement. Borrower agrees that it shall execute and deliver (against delivery by the assigning Lender to Borrower of such Lender’s Notes) to such assignee Lender, Notes evidencing that assignee Lender’s Commitments and/or Advances, and to the assigning Lender, Notes evidencing the remaining balance of the Commitments and/or Advances retained by the assigning Lender.
(c) By executing and delivering an Assignment and Acceptance, the Eligible Assignee thereunder acknowledges and agrees that: (i) other than the representation and warranty that it is the legal and beneficial owner of the rights benefits and obligations hereunder being assigned thereby free and clear of any adverse claim, (including the assigning Lender has made no representation or warranty and assumes no responsibility with respect obligation to any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness or sufficiency of this Agreement or any other Loan Document; (ii) the assigning Lender has made no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance by Borrower of the Obligations; (iii) it has received a copy of this Agreement, together with copies of the most recent financial statements delivered provide documentation pursuant to Section 7.1 and such other documents and information 2.15(g)) of a Lender hereunder. The Administrative Agent, acting solely for this purpose as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) it will, independently and without reliance upon the Administrative Agent or any Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) it appoints and authorizes the Administrative Agent to take such action and to exercise such powers under this Agreement as are delegated to the Administrative Agent by this Agreement; and (vi) it will perform in accordance with their terms all an agent of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(d) The Administrative Agent Borrower, shall maintain at the Administrative Agent’s Office a copy one of each Assignment and Acceptance delivered to it and its offices a register (the “Register”) for the recordation of the names and address of each addresses of the Lenders Lenders, the Commitment and the Pro Rata Share outstanding principal amounts (and accrued interest) of the Commitments held by each Lender, giving effect Advances owing to each Assignment Lender pursuant to the terms hereof from time to time and Acceptanceany assignment of such Commitment or outstanding Advances. The entries in the Register shall be available during normal business hours for inspection by Borrower or any Lender upon reasonable prior notice to the Administrative Agent. After receipt of a completed Assignment and Acceptance executed by any Lender and an Eligible Assigneeconclusive absent manifest error, and receipt of an assignment fee of $3,500 from such Lender or Eligible Assignee, the Administrative Agent shall, promptly following the effective date thereof, provide to Borrower and the Lenders a revised Schedule 1.1 giving effect thereto. Borrower, the Administrative Agent and the Lenders shall deem and treat the Persons listed as Lenders in the Register as the holders and owners of the Pro Rata Shares of the Revolving Facility listed therein for all purposes hereof, and no assignment or transfer of any Lender’s rights and obligations hereunder shall be effective, in each case unless and until an Assignment and Acceptance effecting the assignment or transfer thereof shall have been accepted by the Administrative Agent and Person whose name is recorded in the Register as provided above. Prior to such recordation, all amounts owed with respect pursuant to the applicable Pro Rata Share of the Revolving Facility shall be owed to the Lender listed in the Register as the owner thereof, and any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is listed in the Register terms hereof as a Lender hereunder for all purposes of this Agreement. The Register shall be conclusive available for inspection by the Borrower and binding on any subsequent holderLender, assignee or transferee of the corresponding Pro Rata Share of the Revolving Facility.
(e) Each Lender may at any reasonable time and from time to time grant participations upon reasonable prior notice. Any Lender may sell participation interests in its Advances and obligations hereunder (each such recipient of a participation a “Participant”); provided that after giving effect to one or more banks or other financial institutions in or to all or a portion the sale of its rights and/or obligations under this Agreement; providedsuch participation, however, that (i) such Lender’s obligations under this Agreement hereunder and rights to consent to any waiver hereunder or amendment hereof shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) the participating banks or other financial institutions shall not be a all amounts payable to such Lender hereunder for and all rights to consent to any purpose except, waiver hereunder or amendment hereof shall be determined as if the participation agreement so provides, for the purposes of Sections 3.5, 3.6, 11.11 and 11.21 but only to the extent that the cost of such benefits to Borrower does Lender had not exceed the cost which Borrower would have incurred in respect of the Lender granting sold such participation absent interest, and the participation, (iv) Borrower, Borrower and the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender and not be obligated to deal with such participant. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the outstanding principal amounts (and accrued interest) of each Participant’s interest in the Advances or other obligations under the Transaction Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Transaction Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations and Proposed Treasury Regulations Section 1.163-5(b) (or any amended or successor version). The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent shall have no responsibility for maintaining a Participant Register. Each recipient of a participation shall, to the fullest extent permitted by law, have the same rights, benefits and obligations (including the obligation to provide documentation pursuant to Section 2.15(g) (it being understood that the documentation required under Section 2.15(g) shall be delivered to the participating Lender)), hereunder with respect to the rights and benefits so participated as it would have if it were a Lender hereunder, except that no Participant shall be entitled to receive any greater payment under Sections 2.11 or 2.15 than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation. Notwithstanding any other provision of this Agreement to the contrary, a Lender may pledge as collateral, or grant a security interest in, all or any portion of its rights in, to and under this Agreement to (i) a security trustee in connection with the funding by such Lender’s rights and Lender of Advances or (ii) a Federal Reserve Bank to secure obligations to such Federal Reserve Bank, in each case without the consent of the Borrower; provided that no such pledge or grant shall release such Lender from its obligations under this Agreement, (v) the participation interest shall be expressed as a percentage of the granting Lender’s Pro Rata Share of the Revolving Facility as it then exists and shall not restrict an increase in the Revolving Facility (or the aggregate Commitments pertaining thereto), or in the granting Lender’s rights and obligations hereunder, so long as the amount of the participation interest is not affected thereby and (vi) the consent of the holder of such participation interest shall not be required for amendments or waivers of provisions of the Loan Documents other than those which (A) extend any Amortization Date, any applicable Maturity Date or any other date upon which any payment of money is due to the Lenders, (B) reduce the rate of interest on the Notes, any fee or any other monetary amount payable to the Lenders, (C) reduce the amount of any installment of principal due under the Notes, or (D) release any Guarantor from its Guaranty.
(f) Borrower agrees that upon the occurrence and during the continuance of any Event of Default, each Lender shall be entitled to assign its rights hereunder and under the Loan Documents, or grant participation interests in its rights under this Agreement and the Loan Documents, to any Person, in whole or in any part thereof, notwithstanding any provisions contained herein (including those set forth in subsection (b) above) or in any other Loan Document to the contrary, except that, other than (i) assignments by a Lender to an Affiliate of such Lender or to another Lender or (ii) pledges described in the last sentence of subsection (a) above, no assignment shall be made without the approval of the Administrative Agent.
Appears in 4 contracts
Samples: Credit Agreement (Home Point Capital Inc.), Credit Agreement (Home Point Capital Inc.), Credit Agreement (Home Point Capital Inc.)
Binding Effect; Assignment. (a) This Agreement and the other Loan Documents to which Borrower is a Party will be binding upon and inure to the benefit of Borrower, the Administrative Agent, each of the Lenders, and their respective successors and assigns, except that Borrower may not assign its rights hereunder or thereunder or any interest herein or therein without the prior written consent of all the Lenders. Each Lender represents that it is not acquiring its Note with a view to the distribution thereof within the meaning of the Securities Act of 1933, as amended (subject to any requirement that disposition of such Note must be within the control of such Lender). Any Lender may at any time pledge its Note or any other instrument evidencing its rights as a Lender under this Agreement to a Federal Reserve Bank, but no such pledge shall release that Lender from its obligations hereunder or grant to such Federal Reserve Bank the rights of a Lender hereunder absent foreclosure of such pledge.
(b) From time to time following the Closing Date, each Lender may assign to one or more Eligible Assignees all or any portion of its rights and obligations under this Agreement (including all or a portion of its Commitment, the Advances owing to it and the Note or Notes held by it); provided that, subject to subsection (f) below, (i) such Eligible Assignee, if not then a Lender or an Affiliate of the assigning Lender, shall be approved by the Administrative Agent and Borrower (neither of which approvals shall be unreasonably withheld or delayed), (ii) such assignment shall be evidenced by an Assignment and Acceptance, a copy of which shall be furnished to the Administrative Agent as hereinbelow provided, (iii) except in the case of an assignment to an Affiliate of the assigning Lender, to another Lender or of the entire remaining rights and obligations of the assigning Lender under this Agreement, the assignment shall not assign a portion of such assigning Lender’s 's Commitments and/or Advances owing to such assigning Lender that is equivalent to less than $3,000,000, and (iv) the effective date of any such assignment shall be as specified in the Assignment and Acceptance, but not earlier than the date which is five (5) Banking Days after the date the Administrative Agent has received the Assignment and Acceptance. Upon the effective date of such Assignment and Acceptance, the Eligible Assignee named therein shall be a Lender for all purposes of this Agreement, with the Commitments and/or Advances therein set forth and, to the extent of such Commitments and/or Advances, the assigning Lender shall be released from its further obligations under this Agreement. Borrower agrees that it shall execute and deliver (against delivery by the assigning Lender to Borrower of such Lender’s 's Notes) to such assignee Lender, Notes evidencing that assignee Lender’s 's Commitments and/or Advances, and to the assigning Lender, Notes evidencing the remaining balance of the Commitments and/or Advances retained by the assigning Lender.
(c) By executing and delivering an Assignment and Acceptance, the Eligible Assignee thereunder acknowledges and agrees that: (i) other than the representation and warranty that it is the legal and beneficial owner of the rights and obligations hereunder being assigned thereby free and clear of any adverse claim, the assigning Lender has made 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 or sufficiency of this Agreement or any other Loan Document; (ii) the assigning Lender has made no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance by Borrower of the Obligations; (iii) it has received a copy of this Agreement, together with copies of the most recent financial statements delivered pursuant to Section 7.1 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) it will, independently and without reliance upon the Administrative Agent or any Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) it appoints and authorizes the Administrative Agent to take such action and to exercise such powers under this Agreement as are delegated to the Administrative Agent by this Agreement; and (vi) 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.
(d) The Administrative Agent shall maintain at the Administrative Agent’s 's Office a copy of each Assignment and Acceptance delivered to it and a register (the “"Register”") of the names and address of each of the Lenders and the Pro Rata Share of the Commitments held by each Lender, giving effect to each Assignment and Acceptance. The Register shall be available during normal business hours for inspection by Borrower or any Lender upon reasonable prior notice to the Administrative Agent. After receipt of a completed Assignment and Acceptance executed by any Lender and an Eligible Assignee, and receipt of an assignment fee of $3,500 from such Lender or Eligible Assignee, the Administrative Agent shall, promptly following the effective date thereof, provide to Borrower and the Lenders a revised Schedule 1.1 giving effect thereto. Borrower, the Administrative Agent and the Lenders shall deem and treat the Persons listed as Lenders in the Register as the holders and owners of the Pro Rata Shares of the Revolving Facility listed therein for all purposes hereof, and no assignment or transfer of any Lender’s 's rights and obligations hereunder shall be effective, in each case unless and until an Assignment and Acceptance effecting the assignment or transfer thereof shall have been accepted by the Administrative Agent and recorded in the Register as provided above. Prior to such recordation, all amounts owed with respect to the applicable Pro Rata Share of the Revolving Facility shall be owed to the Lender listed in the Register as the owner thereof, and any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is listed in the Register as a Lender shall be conclusive and binding on any subsequent holder, assignee or transferee of the corresponding Pro Rata Share of the Revolving Facility.
(e) Each Lender may from time to time grant participations to one or more banks or other financial institutions in or to all or a portion of its rights and/or obligations under this Agreement; provided, however, that (i) such Lender’s 's obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) the participating banks or other financial institutions shall not be a Lender hereunder for any purpose except, if the participation agreement so provides, for the purposes of Sections 3.5, 3.6, 11.11 and 11.21 but only to the extent that the cost of such benefits to Borrower does not exceed the cost which Borrower would have incurred in respect of the Lender granting such participation absent the participation, (iv) Borrower, the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s 's rights and obligations under this Agreement, (v) the participation interest shall be expressed as a percentage of the granting Lender’s 's Pro Rata Share of the Revolving Facility as it then exists and shall not restrict an increase in the Revolving Facility (or the aggregate Commitments pertaining thereto), or in the granting Lender’s 's rights and obligations hereunder, so long as the amount of the participation interest is not affected thereby and (vi) the consent of the holder of such participation interest shall not be required for amendments or waivers of provisions of the Loan Documents other than those which (A) extend any Amortization Date, any applicable Maturity Date or any other date upon which any payment of money is due to the Lenders, (B) reduce the rate of interest on the Notes, any fee or any other monetary amount payable to the Lenders, (C) reduce the amount of any installment of principal due under the Notes, or (D) release any Guarantor from its Guaranty.
(f) Borrower agrees that upon the occurrence and during the continuance of any Event of Default, each Lender shall be entitled to assign its rights hereunder and under the Loan Documents, or grant participation interests in its rights under this Agreement and the Loan Documents, to any Person, in whole or in any part thereof, notwithstanding any provisions contained herein (including those set forth in subsection (b) above) or in any other Loan Document to the contrary, except that, other than (i) assignments by a Lender to an Affiliate of such Lender or to another Lender or (ii) pledges described in the last sentence of subsection (a) above, no assignment shall be made without the approval of the Administrative Agent.
Appears in 4 contracts
Samples: Credit Agreement (American States Water Co), Credit Agreement (American States Water Co), Credit Agreement (American States Water Co)
Binding Effect; Assignment. (a) This Agreement and the other Loan Documents to which Borrower is a Party will be binding upon and Warrant shall inure to the benefit of Borrower, and be binding upon the Administrative Agent, each of Company and the Lenders, Holder and their respective successors successors, heirs, legal representatives and permitted assigns. This Warrant and the Warrant Shares (collectively, except that Borrower "Securities") may only be disposed of pursuant to an effective registration statement under the Securities Act or pursuant to an available exemption from or in a transaction not assign its rights hereunder or thereunder or subject to the registration requirements of the Securities Act, and in compliance with any interest herein or therein without applicable federal and state securities laws. In connection with any transfer of Securities other than pursuant to an effective registration statement, transfer may only be made with the prior written consent of all the Lenders. Each Lender represents that it is Company, which shall not acquiring its Note with a view be unreasonably withheld, and the Company may require the transferor to provide to the distribution thereof within Company an opinion of counsel selected by the meaning of the Securities Act of 1933, as amended (subject to any requirement that disposition of such Note must be within the control of such Lender). Any Lender may at any time pledge its Note or any other instrument evidencing its rights as a Lender under this Agreement to a Federal Reserve Bank, but no such pledge shall release that Lender from its obligations hereunder or grant to such Federal Reserve Bank the rights of a Lender hereunder absent foreclosure of such pledge.
(b) From time to time following the Closing Date, each Lender may assign to one or more Eligible Assignees all or any portion of its rights and obligations under this Agreement (including all or a portion of its Commitmenttransferor, the Advances owing to it form and the Note or Notes held by it); provided that, subject to subsection (f) below, (i) such Eligible Assignee, if not then a Lender or an Affiliate substance of the assigning Lender, which opinion shall be approved by the Administrative Agent and Borrower (neither of which approvals shall be unreasonably withheld or delayed), (ii) such assignment shall be evidenced by an Assignment and Acceptance, a copy of which shall be furnished reasonably satisfactory to the Administrative Agent as hereinbelow provided, (iii) except in the case of an assignment to an Affiliate of the assigning Lender, to another Lender or of the entire remaining rights and obligations of the assigning Lender under this Agreement, the assignment shall not assign a portion of such assigning Lender’s Commitments and/or Advances owing to such assigning Lender that is equivalent to less than $3,000,000, and (iv) the effective date of any such assignment shall be as specified in the Assignment and Acceptance, but not earlier than the date which is five (5) Banking Days after the date the Administrative Agent has received the Assignment and Acceptance. Upon the effective date of such Assignment and Acceptance, the Eligible Assignee named therein shall be a Lender for all purposes of this Agreement, with the Commitments and/or Advances therein set forth andCompany, to the extent effect that such transfer does not require registration of such Commitments and/or Advances, transferred securities under the assigning Lender shall be released from its further obligations under this Agreement. Borrower agrees that it shall execute and deliver (against delivery by the assigning Lender to Borrower of such Lender’s Notes) to such assignee Lender, Notes evidencing that assignee Lender’s Commitments and/or Advances, and to the assigning Lender, Notes evidencing the remaining balance of the Commitments and/or Advances retained by the assigning Lender.
(c) By executing and delivering an Assignment and Acceptance, the Eligible Assignee thereunder acknowledges and agrees that: (i) other than the representation and warranty that it is the legal and beneficial owner of the rights and obligations hereunder being assigned thereby free and clear of any adverse claim, the assigning Lender has made 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 or sufficiency of this Agreement or any other Loan Document; (ii) the assigning Lender has made no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance by Borrower of the Obligations; (iii) it has received a copy of this Agreement, together with copies of the most recent financial statements delivered pursuant to Section 7.1 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) it will, independently and without reliance upon the Administrative Agent or any Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) it appoints and authorizes the Administrative Agent to take such action and to exercise such powers under this Agreement as are delegated to the Administrative Agent by this Agreement; and (vi) 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.
(d) The Administrative Agent shall maintain at the Administrative Agent’s Office a copy of each Assignment and Acceptance delivered to it and a register (the “Register”) of the names and address of each of the Lenders and the Pro Rata Share of the Commitments held by each Lender, giving effect to each Assignment and Acceptance. The Register shall be available during normal business hours for inspection by Borrower or any Lender upon reasonable prior notice to the Administrative Agent. After receipt of a completed Assignment and Acceptance executed by any Lender and an Eligible Assignee, and receipt of an assignment fee of $3,500 from such Lender or Eligible Assignee, the Administrative Agent shall, promptly following the effective date thereof, provide to Borrower and the Lenders a revised Schedule 1.1 giving effect thereto. Borrower, the Administrative Agent and the Lenders shall deem and treat the Persons listed as Lenders in the Register as the holders and owners of the Pro Rata Shares of the Revolving Facility listed therein for all purposes hereof, and no assignment or transfer of any Lender’s rights and obligations hereunder shall be effective, in each case unless and until an Assignment and Acceptance effecting the assignment or transfer thereof shall have been accepted by the Administrative Agent and recorded in the Register as provided above. Prior to such recordation, all amounts owed with respect to the applicable Pro Rata Share of the Revolving Facility shall be owed to the Lender listed in the Register as the owner thereof, and any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is listed in the Register as a Lender shall be conclusive and binding on any subsequent holder, assignee or transferee of the corresponding Pro Rata Share of the Revolving Facility.
(e) Each Lender may from time to time grant participations to one or more banks or other financial institutions in or to all or a portion of its rights and/or obligations under this AgreementSecurities Act; provided, however, that (i) notwithstanding the foregoing, no consent of the Company shall be required for the assignment or transfer of rights hereunder by a Holder to such Lender’s obligations under this Agreement shall remain unchangedassignor's or transferor's partners, (ii) such Lender shall remain solely responsible shareholders or members or retired partners or former shareholders or members, if any, or for any other assignment or transfer to the other parties hereto for the performance spouse, ancestors, lineal descendants or siblings of such obligationsassignor or transferor, provided the transferee(s) certify to the Company that each is an "accredited investor" within the meaning of Rule 501(a) under the Securities Act and that it is acquiring the Securities solely for investment purposes. The Company shall register the transfer of any portion of this Warrant, upon surrender of this Warrant with the Form of Assignment attached hereto duly completed and signed, to the Company's transfer agent or to the Company at the office specified in Section 8.2. Upon any such transfer, a new warrant to purchase Common Stock, in substantially the form of this Warrant (iii) any such new warrant, a "New Warrant"), evidencing the participating banks or other financial institutions portion of this Warrant so transferred shall be issued to the transferee and a New Warrant evidencing the remaining portion of this Warrant not be a Lender hereunder for any purpose exceptso transferred, if the participation agreement so providesany, for the purposes of Sections 3.5, 3.6, 11.11 and 11.21 but only shall be issued to the extent that transferring Holder. The acceptance of a New Warrant by the cost transferee shall be deemed the acceptance of such benefits to Borrower does not exceed the cost which Borrower would have incurred in respect transferee of all of the Lender granting such participation absent the participation, (iv) Borrower, the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreementof a holder of a Warrant. This Warrant is exchangeable, (v) upon the participation interest shall be expressed as a percentage surrender hereof by the Holder to the office of the granting Lender’s Pro Rata Share of the Revolving Facility as it then exists and shall not restrict an increase Company specified in Section 8.2, for one or more New Warrants evidencing in the Revolving Facility (or aggregate the aggregate Commitments pertaining thereto), or in right to purchase the granting Lender’s rights and obligations number of Warrant Shares which may then be purchased hereunder, so long as . Any such New Warrant will be dated the amount of the participation interest is not affected thereby and (vi) the consent of the holder date of such participation interest shall not be required for amendments or waivers of provisions of the Loan Documents other than those which (A) extend any Amortization Date, any applicable Maturity Date or any other date upon which any payment of money is due to the Lenders, (B) reduce the rate of interest on the Notes, any fee or any other monetary amount payable to the Lenders, (C) reduce the amount of any installment of principal due under the Notes, or (D) release any Guarantor from its Guarantyexchange.
(f) Borrower agrees that upon the occurrence and during the continuance of any Event of Default, each Lender shall be entitled to assign its rights hereunder and under the Loan Documents, or grant participation interests in its rights under this Agreement and the Loan Documents, to any Person, in whole or in any part thereof, notwithstanding any provisions contained herein (including those set forth in subsection (b) above) or in any other Loan Document to the contrary, except that, other than (i) assignments by a Lender to an Affiliate of such Lender or to another Lender or (ii) pledges described in the last sentence of subsection (a) above, no assignment shall be made without the approval of the Administrative Agent.
Appears in 3 contracts
Samples: Warrant Agreement (Aequitas Capital Management Inc.), Warrant Agreement (Aequitas Capital Management Inc.), Warrant Agreement (Microfield Graphics Inc /Or)
Binding Effect; Assignment. (a) 11.10.1 This Agreement Agreement, the Notes and the other Loan Documents to which Borrower is a Party will shall be binding upon and shall inure to the benefit of Borrower, the Administrative Agent, each of the Lenders, parties hereto and thereto and their respective successors and assigns, except that no Borrower may not nor FSI shall assign its rights hereunder or thereunder or any interest herein or therein without the prior written consent of all the Lenderseach Lender. Each Lender represents shall have the right in accordance with this Section 11.10 (a) to sell and assign to any Eligible Assignee all or any portion of its interest ( provided that it is any such partial assignment shall not acquiring be for a principal amount of less than Five Million Dollars ($5,000,000)) under this Agreement, its Note with a view respective Notes and the other Loan Documents, subject to the distribution thereof within prior written consent of the meaning affected Borrower, which consent shall not be unreasonably withheld, and (b) to grant any participation or other interest herein or therein, except that each potential participant to which a Lender intends to grant any rights under Sections 2.9, 2.10, 5.1 or 10.2 shall be subject to the prior written consent of the affected Borrower, which consent shall not be unreasonably withheld; provided, however, that no such sale, assignment or participation grant shall result in requiring registration under the Securities Act of 1933, as amended (subject to amended, or qualification under any requirement that disposition of such Note must be within the control of such Lender). Any Lender may at any time pledge its Note or any other instrument evidencing its rights as a Lender under this Agreement to a Federal Reserve Bank, but no such pledge shall release that Lender from its obligations hereunder or grant to such Federal Reserve Bank the rights of a Lender hereunder absent foreclosure of such pledgestate securities law.
(b) From time 11.10.2 Subject to time following the Closing Datelimitations of this Section 11.10.2, each Lender may assign sell and assign, from time to one or more Eligible Assignees time, all or any portion of its rights and obligations under this Agreement (including all or a portion Pro Rata Share of the Commitments to any of its CommitmentAffiliates or, with the Advances owing approval of the affected Borrower and FSI (which approval shall not be unreasonably withheld), to it and the Note or Notes held by it); provided thatany other financial institution acceptable to Agent, subject to subsection (f) below, (i) the assumption by such Eligible Assignee, if not then a Lender or an Affiliate assignee of the assigning Lender, shall be approved by share of the Administrative Agent and Borrower (neither of which approvals shall be unreasonably withheld Commitments so assigned. The assignment to such Affiliate or delayed), (ii) such assignment other financial institution shall be evidenced by an Assignment and Acceptance in the form of Exhibit G (" Assignment and Acceptance ") executed by the assignor Lender (hereinafter from time to time referred to as the " Assignor Lender ") and such Affiliate or other financial institution (which, upon such assignment shall become a Lender hereunder (hereinafter from time to time referred to as the " Assignee Lender ")). The Assignment and Acceptance need not include any of the economic or financial terms upon which such Assignee Lender receives the assignment from the Assignor Lender, and such terms need not be disclosed to or approved by such Borrower or FSI; provided only that such terms do not diminish the obligations undertaken by such Assignee Lender in the Assignment and Acceptance or increase the obligations of Borrowers or FSI under this Agreement. Upon execution of such Assignment and Acceptance, a copy (a) the definition of which "Commitments" in Section 1 hereof and the Pro Rata Shares set forth therein shall be furnished deemed to be amended to reflect each Lender’s share of the Commitments, after giving effect to the Administrative Agent assignment and (b) the Assignee Lender shall, from the effective date of the Assignment and Acceptance, be subject to all of the obligations, and entitled to all of the rights, of a Lender hereunder, except as hereinbelow provided, (iii) except may be expressly provided to the contrary in the case Assignment and Acceptance. To the extent the obligations hereunder of an the Assignor Lender are assumed by the Assignee Lender, the Assignor Lender shall be relieved of such obligations. Upon the assignment of any interest by any Assignor Lender pursuant to this Section 11.10.2, such Assignor Lender agrees to supplement Schedule A to show the date of such assignment, the Assignor Lender, the Assignee Lender, the Assignee Lender’s address for notice purposes and the amount of the Commitments so assigned. In connection and as a condition to each assignment hereunder, the Assignor Lender agrees to pay or to cause the Assignee Lender to pay to Agent a processing fee of $3,500; provided that no processing fee shall be charged for any assignment to an Affiliate of the assigning Lender, to another a Lender or a Lender Affiliate.
11.10.3 Subject to the limitations of this Section 11.10.3, any Lender may also grant, from time to time, participation interests in the entire remaining rights and obligations interests of the assigning such Lender under this Agreement, the assignment Notes and the other Loan Documents to any other financial institution without notice to, or approval of, any Borrower or FSI. The grant of such a participation interest shall be on such terms as the granting Lender determines are appropriate, provided only that (a) the holder of such participation interest shall not assign a portion of such assigning Lender’s Commitments and/or Advances owing to such assigning Lender that is equivalent to less than $3,000,000, and (iv) the effective date of have any such assignment shall be as specified in the Assignment and Acceptance, but not earlier than the date which is five (5) Banking Days after the date the Administrative Agent has received the Assignment and Acceptance. Upon the effective date of such Assignment and Acceptance, the Eligible Assignee named therein shall be a Lender for all purposes of this Agreement, with the Commitments and/or Advances therein set forth and, to the extent of such Commitments and/or Advances, the assigning Lender shall be released from its further obligations under this Agreement. Borrower agrees that it shall execute and deliver (against delivery by the assigning Lender to Borrower of such Lender’s Notes) to such assignee Lender, Notes evidencing that assignee Lender’s Commitments and/or Advances, and to the assigning Lender, Notes evidencing the remaining balance of the Commitments and/or Advances retained by the assigning Lender.
(c) By executing and delivering an Assignment and Acceptance, the Eligible Assignee thereunder acknowledges and agrees that: (i) other than the representation and warranty that it is the legal and beneficial owner of the rights and obligations hereunder being assigned thereby free and clear of any adverse claim, the assigning a Lender has made 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 or sufficiency of this Agreement or any other Loan Document; (ii) the assigning Lender has made no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance by Borrower of the Obligations; (iii) it has received a copy of this Agreement, together with copies of the most recent financial statements delivered pursuant to Section 7.1 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) it will, independently and without reliance upon the Administrative Agent or any Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) it appoints and authorizes the Administrative Agent to take such action and to exercise such powers under this Agreement as are delegated to the Administrative Agent by this Agreement; and (vi) 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.
(d) The Administrative Agent shall maintain at the Administrative Agent’s Office a copy of each Assignment and Acceptance delivered to it and a register (the “Register”) of the names and address of each of the Lenders and the Pro Rata Share of the Commitments held by each Lender, giving effect to each Assignment and Acceptance. The Register shall be available during normal business hours for inspection by Borrower or any Lender upon reasonable prior notice to the Administrative Agent. After receipt of a completed Assignment and Acceptance executed by any Lender and an Eligible Assignee, and receipt of an assignment fee of $3,500 from such Lender or Eligible Assignee, the Administrative Agent shall, promptly following the effective date thereof, provide to Borrower and the Lenders a revised Schedule 1.1 giving effect thereto. Borrower, the Administrative Agent and the Lenders shall deem and treat the Persons listed as Lenders in the Register as the holders and owners of the Pro Rata Shares of the Revolving Facility listed therein for all purposes hereof, and no assignment or transfer of any Lender’s rights and obligations hereunder shall be effective, in each case unless and until an Assignment and Acceptance effecting the assignment or transfer thereof shall have been accepted by the Administrative Agent and recorded in the Register as provided above. Prior to such recordation, all amounts owed with respect to the applicable Pro Rata Share of the Revolving Facility shall be owed to the Lender listed in the Register as the owner thereof, and any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is listed in the Register as a Lender shall be conclusive and binding on any subsequent holder, assignee or transferee of the corresponding Pro Rata Share of the Revolving Facility.
(e) Each Lender may from time to time grant participations to one or more banks or other financial institutions in or to all or a portion of its rights and/or obligations under this Agreement; provided, however, that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) the participating banks or other financial institutions shall not be a Lender hereunder for any purpose exceptexcept , if the participation agreement so expressly provides, for the purposes of rights under Sections 3.52.9, 3.62.10, 11.11 5.1 and 11.21 but only to the extent that the cost of such benefits to Borrower does not exceed the cost which Borrower would have incurred in respect of the Lender granting such participation absent the participation10.2, (iv) Borrower, the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement, (v) the participation interest shall be expressed as a percentage of the granting Lender’s Pro Rata Share of the Revolving Facility as it then exists and shall not restrict an increase in the Revolving Facility (or the aggregate Commitments pertaining thereto), or in the granting Lender’s rights and obligations hereunder, so long as the amount of the participation interest is not affected thereby and (vib) the consent of the holder of such a participation interest shall not be required for amendments or waivers of provisions of the Loan Documents other than , if the participation agreement expressly provides, those which (Ai) extend increase the monetary amount of any Amortization Date, any applicable Maturity Date or any other date upon which any payment of money is due to the LendersCommitment, (Bii) reduce the rate of interest on the Notes, decrease any fee or any other monetary amount payable to the Lenders, (C) reduce the amount of any installment of principal due under the Notes, or (Diii) release extend the date upon which any Guarantor from its Guarantymonetary amount is payable to Lenders.
(f) Borrower agrees that upon the occurrence and during the continuance of any Event of Default, each Lender shall be entitled to assign its rights hereunder and under the Loan Documents, or grant participation interests in its rights under this Agreement and the Loan Documents, to any Person, in whole or in any part thereof, notwithstanding any provisions contained herein (including those set forth in subsection (b) above) or in any other Loan Document to the contrary, except that, other than (i) assignments by a Lender to an Affiliate of such Lender or to another Lender or (ii) pledges described in the last sentence of subsection (a) above, no assignment shall be made without the approval of the Administrative Agent.
Appears in 3 contracts
Samples: Warehousing Credit Agreement (PLM Equipment Growth Fund Vi), Warehousing Credit Agreement (PLM Equipment Growth & Income Fund Vii), Warehousing Credit Agreement (PLM Equipment Growth Fund V)
Binding Effect; Assignment. (a) This Agreement and the other Loan Documents to which Borrower is a Party will shall be binding upon on and inure to the benefit of Borrower, the Administrative Agent, each of the Lenders, parties and their respective successors and permitted assigns. Nothing in this Agreement shall create or be deemed to create any third party beneficiary rights in any person or entity (including any Executive or person engaged by Quixote in any capacity) not a party to this Agreement. Quixote will require any successor (whether direct or indirect, except that Borrower may not assign its rights hereunder by merger, purchase, consolidation or thereunder or any interest herein or therein without the prior written consent otherwise) of all the Lenders. Each Lender represents that it is not acquiring its Note with a view Quixote to the distribution thereof within the meaning make an express assumption of the Securities Act obligations hereunder and cause any successor (whether direct or indirect, by merger, purchase, consolidation or otherwise) to all or substantially all of 1933, as amended (subject the business and/or assets of Quixote to any requirement that disposition of such Note must be within the control of such Lender). Any Lender may at any time pledge its Note or any other instrument evidencing its rights as a Lender agree to perform all parts and provisions under this Agreement in the same manner and to the same extent that Quixote would be required to perform it if no such succession had taken place. Failure of Quixote to obtain such agreement prior to the effectiveness of any such succession shall be a breach of this Agreement and shall entitle Executive to compensation from Quixote in the same amount and on the same terms as he would be entitled to hereunder if he is subject to a Federal Reserve BankGood Reason, but no and the date on which any such pledge succession becomes effective shall release that Lender from its obligations hereunder be deemed the date of Termination. As used in this Agreement, Company shall mean Quixote as hereinbefore defined and any successor to the business and/or assets of Quixote which executes and delivers the agreement provided for in this Section 12, or grant to such Federal Reserve Bank which otherwise becomes bound by all the terms and provisions of this Agreement by operation of law. This Agreement and all rights of a Lender the Executive hereunder absent foreclosure of shall inure to the benefit of, and be enforceable by the Executive’s personal or legal representatives, executors, administrators, successors, heirs, distributees, devisees and legatees. If the Executive should die after any amounts shall become payable to him hereunder, all such pledge.
(b) From time to time following the Closing Dateamounts, each Lender may assign to one or more Eligible Assignees all or any portion of its rights and obligations under this Agreement (including all or a portion of its Commitment, the Advances owing to it and the Note or Notes held by it); unless otherwise provided that, subject to subsection (f) below, (i) such Eligible Assignee, if not then a Lender or an Affiliate of the assigning Lenderfor herein, shall be approved by the Administrative Agent and Borrower (neither of which approvals shall be unreasonably withheld or delayed), (ii) such assignment shall be evidenced by an Assignment and Acceptance, a copy of which shall be furnished to the Administrative Agent as hereinbelow provided, (iii) except in the case of an assignment to an Affiliate of the assigning Lender, to another Lender or of the entire remaining rights and obligations of the assigning Lender under this Agreement, the assignment shall not assign a portion of such assigning Lender’s Commitments and/or Advances owing to such assigning Lender that is equivalent to less than $3,000,000, and (iv) the effective date of any such assignment shall be as specified in the Assignment and Acceptance, but not earlier than the date which is five (5) Banking Days after the date the Administrative Agent has received the Assignment and Acceptance. Upon the effective date of such Assignment and Acceptance, the Eligible Assignee named therein shall be a Lender for all purposes of this Agreement, with the Commitments and/or Advances therein set forth and, to the extent of such Commitments and/or Advances, the assigning Lender shall be released from its further obligations under this Agreement. Borrower agrees that it shall execute and deliver (against delivery by the assigning Lender to Borrower of such Lender’s Notes) to such assignee Lender, Notes evidencing that assignee Lender’s Commitments and/or Advances, and to the assigning Lender, Notes evidencing the remaining balance of the Commitments and/or Advances retained by the assigning Lender.
(c) By executing and delivering an Assignment and Acceptance, the Eligible Assignee thereunder acknowledges and agrees that: (i) other than the representation and warranty that it is the legal and beneficial owner of the rights and obligations hereunder being assigned thereby free and clear of any adverse claim, the assigning Lender has made 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 or sufficiency of this Agreement or any other Loan Document; (ii) the assigning Lender has made no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance by Borrower of the Obligations; (iii) it has received a copy of this Agreement, together with copies of the most recent financial statements delivered pursuant to Section 7.1 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) it will, independently and without reliance upon the Administrative Agent or any Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) it appoints and authorizes the Administrative Agent to take such action and to exercise such powers under this Agreement as are delegated to the Administrative Agent by this Agreement; and (vi) it will perform paid 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.
(d) The Administrative Agent shall maintain at the Administrative Agent’s Office a copy of each Assignment and Acceptance delivered to it and a register (the “Register”) of the names and address of each of the Lenders and the Pro Rata Share of the Commitments held by each Lender, giving effect to each Assignment and Acceptance. The Register shall be available during normal business hours for inspection by Borrower or any Lender upon reasonable prior notice to the Administrative Agent. After receipt of a completed Assignment and Acceptance executed by any Lender and an Eligible AssigneeExecutive’s devisee, and receipt of an assignment fee of $3,500 from legatee or other designee or, if there be no such Lender devisee or Eligible Assigneeother designee, the Administrative Agent shall, promptly following the effective date thereof, provide to Borrower and the Lenders a revised Schedule 1.1 giving effect thereto. Borrower, the Administrative Agent and the Lenders shall deem and treat the Persons listed as Lenders in the Register as the holders and owners of the Pro Rata Shares of the Revolving Facility listed therein for all purposes hereof, and no assignment or transfer of any Lender’s rights and obligations hereunder shall be effective, in each case unless and until an Assignment and Acceptance effecting the assignment or transfer thereof shall have been accepted by the Administrative Agent and recorded in the Register as provided above. Prior to such recordation, all amounts owed with respect to the applicable Pro Rata Share of the Revolving Facility shall be owed to the Lender listed in the Register as the owner thereof, and any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is listed in the Register as a Lender shall be conclusive and binding on any subsequent holder, assignee or transferee of the corresponding Pro Rata Share of the Revolving FacilityExecutive’s estate.
(e) Each Lender may from time to time grant participations to one or more banks or other financial institutions in or to all or a portion of its rights and/or obligations under this Agreement; provided, however, that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) the participating banks or other financial institutions shall not be a Lender hereunder for any purpose except, if the participation agreement so provides, for the purposes of Sections 3.5, 3.6, 11.11 and 11.21 but only to the extent that the cost of such benefits to Borrower does not exceed the cost which Borrower would have incurred in respect of the Lender granting such participation absent the participation, (iv) Borrower, the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement, (v) the participation interest shall be expressed as a percentage of the granting Lender’s Pro Rata Share of the Revolving Facility as it then exists and shall not restrict an increase in the Revolving Facility (or the aggregate Commitments pertaining thereto), or in the granting Lender’s rights and obligations hereunder, so long as the amount of the participation interest is not affected thereby and (vi) the consent of the holder of such participation interest shall not be required for amendments or waivers of provisions of the Loan Documents other than those which (A) extend any Amortization Date, any applicable Maturity Date or any other date upon which any payment of money is due to the Lenders, (B) reduce the rate of interest on the Notes, any fee or any other monetary amount payable to the Lenders, (C) reduce the amount of any installment of principal due under the Notes, or (D) release any Guarantor from its Guaranty.
(f) Borrower agrees that upon the occurrence and during the continuance of any Event of Default, each Lender shall be entitled to assign its rights hereunder and under the Loan Documents, or grant participation interests in its rights under this Agreement and the Loan Documents, to any Person, in whole or in any part thereof, notwithstanding any provisions contained herein (including those set forth in subsection (b) above) or in any other Loan Document to the contrary, except that, other than (i) assignments by a Lender to an Affiliate of such Lender or to another Lender or (ii) pledges described in the last sentence of subsection (a) above, no assignment shall be made without the approval of the Administrative Agent.
Appears in 3 contracts
Samples: Severance and Non Competition Agreement (Quixote Corp), Severance and Non Competition Agreement (Quixote Corp), Severance and Non Competition Agreement (Quixote Corp)
Binding Effect; Assignment. (aA) This Agreement and the other Loan Documents to which Borrower is a Party will shall be binding upon and inure to the benefit of the Borrower, the Administrative Agent, Custodian and the Agent and each of the LendersLender, and their respective successors and assigns, except that the Borrower may shall not have the right to assign its rights hereunder or thereunder or any interest herein or therein without the prior written consent of all the Agent and the Lenders, and any assignment by the Borrower in violation of this Section 9.8 shall be null and void. Each Lender represents that it is not acquiring its Note with a view Notwithstanding anything to the distribution thereof within contrary in the meaning first sentence of the Securities Act of 1933this Section 9.8, as amended (subject to any requirement that disposition of such Note must be within the control of such Lender). Any Lender may at any time pledge its Note time, without the consent of the Borrower or the Agent, assign all or any other instrument evidencing portion of its rights as a Lender under this Agreement and any Loan Note to a Federal Reserve Bank; provided, but that no such assignment or pledge shall release that the transferor Lender from its obligations hereunder or grant to such Federal Reserve Bank the rights of a Lender hereunder absent foreclosure of such pledgehereunder.
(bB) From time to time following the Closing Date, each Each Lender may assign to one or more Eligible Assignees banks or other entities all or any part or portion of its rights and obligations hereunder (including, without limitation, its Commitment, its Loan Notes or its Advances); provided, that each such assignment (i) shall be in form and substance acceptable to the Agent, (ii) shall, without limiting the rights of the Borrower under subclause (iii) below and unless either (x) such assignee is a Permitted Assignee or (y) an Event of Default or Amortization Event shall have occurred and is continuing, be approved by the prior written consent of the Borrower (such consent not to unreasonably withheld or delayed), (iii) shall not be made to a Person that is a Disqualified Lender as of the date on which the assigning Lender entered into a binding agreement to sell and assign all or a portion of its rights and obligations under this Agreement to such Person (including all or unless the Borrower has consented to such assignment in writing in its sole and absolute discretion, which, in either such case, such Person shall not be considered a portion Disqualified Lender for the purpose of its Commitment, the Advances owing to it and the Note or Notes held by itthis Agreement); provided that, subject to subsection (f) below, (iiv) shall either be made to a Permitted Assignee or to a Person which is acceptable to the Agent (such Eligible Assignee, if consent not then a Lender or an Affiliate of the assigning Lender, shall be approved by the Administrative Agent and Borrower (neither of which approvals shall to be unreasonably withheld or delayed), ) and (iiv) the parties to each such assignment shall be evidenced by execute and deliver to the Agent, for its acceptance and recording in the Register, an Assignment Agreement, together with any Loan Note or Loan Notes subject to such assignment and Acceptancea processing and recordation fee of $3,000. Upon execution, a copy delivery, acceptance and recording of which an Assignment Agreement, from and after the effective date specified in such Assignment Agreement, (A) the assignee thereunder shall be furnished a party hereto and, to the Administrative Agent as hereinbelow providedextent that rights and obligations hereunder have been assigned to it pursuant to such Assignment Agreement, have the rights and obligations of a Lender hereunder (iiiincluding the obligation to provide documentation pursuant to Section 2.15(G)) except of a Lender hereunder) and (B) the assigning Lender thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment Agreement, relinquish its rights and be released from its obligations under this Agreement (and, in the case of an assignment to Assignment Agreement covering all or the remaining portion of an Affiliate of the assigning Lender, to another Lender or of the entire remaining ’s rights and obligations of the assigning Lender under this Agreement, such Lender shall cease to be a party hereto).
(C) If any assignment is made to a Disqualified Lender in violation of this Section 9.8, the assignment shall Borrower may, at its sole expense and effort, upon notice to the applicable Disqualified Lender and the Agent, (i) purchase or prepay the Advances held by such Disqualified Lender by paying the lesser of (x) the principal amount thereof and (y) the amount that such Disqualified Xxxxxx paid to acquire such Advances, in each case plus accrued interest, accrued fees and all other amounts (other than principal amounts) payable to it hereunder and/or (ii) require such Disqualified Lender to assign, without recourse (in accordance with and subject to the restrictions contained in this Section 9.8), all of its interest, rights and obligations under this Agreement to one or more banks or other entities at the lesser of (x) the principal amount thereof and (y) the amount that such Disqualified Lender paid to acquire such interests, rights and obligations, in each case plus accrued interest, accrued fees and all other amounts (other than principal amounts) payable to it hereunder.
(D) Disqualified Lenders (i) will not, absent consent from the Borrower (x) have the right to receive financial reports that are not assign a portion publicly available, Monthly Servicer Reports or other reports or confidential information provided to Lenders by the Borrower or the Agent (other than Tax reporting information with respect to the Advances), (y) attend or participate in meetings with the Borrower attended by the Lenders and the Agent, or (z) access any electronic site maintained by the Borrower or Agent to provide Lenders with confidential information or confidential communications from counsel to or financial advisors of such assigning Lender’s Commitments and/or Advances owing the Agent and (ii) (x) for purposes of any consent to any amendment, waiver or modification of, or any action under, and for the purpose of any direction to the Agent or any Lender to undertake any action (or refrain from taking any action) under this Agreement or any other Transaction Document, each Disqualified Lender will be deemed to have consented in the same proportion as the Lenders that are not Disqualified Lenders consented to such assigning Lender that is equivalent to less than $3,000,000matter, and (ivy) for purposes of voting on any plan of reorganization or plan of liquidation, each Disqualified Lender party hereto hereby agrees (1) not to vote on such plan, (2) if such Disqualified Xxxxxx does vote on such plan notwithstanding the effective date of any restriction in the foregoing clause (1), such assignment vote will be deemed not to be in good faith and shall be as specified “designated” pursuant to Section 1126(e) of the Bankruptcy Code (or any similar provision in any other debtor relief laws), and such vote shall not be counted in determining whether the Assignment applicable class has accepted or rejected such plan in accordance with Section 1126(c) of the Bankruptcy Code (or any similar provision in any other debtor relief laws) and Acceptance, but (3) not earlier than the date which is five (5) Banking Days after the date the Administrative Agent has received the Assignment and Acceptance. Upon the effective date of such Assignment and Acceptance, the Eligible Assignee named therein shall be to contest any request by any party for a Lender for all purposes of this Agreement, with the Commitments and/or Advances therein set forth and, to the extent of such Commitments and/or Advances, the assigning Lender shall be released from its further obligations under this Agreement. Borrower agrees that it shall execute and deliver (against delivery determination by the assigning Lender to Borrower Bankruptcy Court (or other applicable court of such Lender’s Notescompetent jurisdiction) to such assignee Lender, Notes evidencing that assignee Lender’s Commitments and/or Advances, and to effectuating the assigning Lender, Notes evidencing the remaining balance of the Commitments and/or Advances retained by the assigning Lenderforegoing clause (2).
(cE) By executing and delivering an Assignment and AcceptanceAgreement, the Eligible Assignee Lender assignor thereunder acknowledges and agrees thatthe assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than the representation and warranty that it is the legal and beneficial owner of the rights and obligations hereunder being assigned thereby free and clear of any adverse claimas provided in such Assignment Agreement, the such assigning Lender has made makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or any other Transaction Document or the execution, legality, validity, enforceability, genuineness genuineness, sufficiency or sufficiency value of this Agreement or any other Loan DocumentTransaction Document or any other instrument or document furnished pursuant hereto or thereto; (ii) the such assigning Lender has made makes no representation or warranty and assumes no responsibility with respect to the financial condition of the Borrower or the performance or observance by the Borrower of the Obligationsany of its Obligations under this Agreement or any other Transaction Document or instrument or document furnished pursuant hereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the most recent financial statements delivered pursuant to Section 7.1 of the Borrower, 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 AcceptanceAgreement; (iv) it such assignee will, independently and without reliance upon the Administrative Agent Agent, such assigning Lender or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) it 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 Transaction Documents as are delegated to the Administrative Agent by this Agreementthe terms hereof and thereof, 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.
(dF) The Administrative Agent shall maintain at one of its offices in the Administrative Agent’s Office United States (as defined in Section 7701(a)(9) of the Code) a copy of each Assignment and Acceptance Agreement 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 outstanding principal amount (and accrued interest) of the Advances owing to, each Lender from time to time (the “Register”) of ). The entries in the names Register shall be conclusive and address of each of binding for all purposes, absent manifest error, and the Borrower, the Agent and the Lenders and shall treat each Person whose name is recorded in the Pro Rata Share Register as a Lender hereunder for all purposes of the Commitments held by each Lender, giving effect to each Assignment and Acceptancethis Agreement. The Register shall be available during normal business hours for inspection by the Borrower or and each Lender at any Lender reasonable time and from time to time upon reasonable prior notice to the Administrative Agent. After .
(G) Upon its receipt of a completed an Assignment and Acceptance Agreement executed by any an assigning Lender and an Eligible Assigneeassignee, and receipt of an assignment fee of $3,500 from together with any Loan Note subject to such Lender or Eligible Assigneeassignment, the Administrative Agent shall, promptly following if such Assignment Agreement has been completed and is in substantially the form of Exhibit E-2 hereto, (i) accept such Assignment Agreement, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the Borrower. Within five (5) Business Days after its receipt of such notice, the Borrower, at no cost to the Agent or the Lenders, shall execute and deliver to the Agent, in exchange for the surrendered Loan Note, a new Loan Note to the order of such assignee Lender in an amount equal to the Commitment assumed by it pursuant to such Assignment Agreement and, if the assigning Lender has retained a Commitment hereunder, a new Loan Note to the order of the assigning Lender in an amount equal to the Commitment retained by it hereunder. Such new Loan Note or Loan Notes shall be in an aggregate principal amount equal to the aggregate principal amount of such surrendered Loan Note or Loan Notes, shall be dated the effective date thereofof such Assignment Agreement and shall otherwise be in substantially the form of Exhibit C.
(H) Any Lender may, provide to Borrower and without the Lenders a revised Schedule 1.1 giving effect thereto. consent of the Borrower, the Administrative Agent and the Lenders shall deem and treat the Persons listed as Lenders sell participation interests in the Register as the holders and owners of the Pro Rata Shares of the Revolving Facility listed therein for all purposes hereof, and no assignment or transfer of any Lender’s rights its Advances and obligations hereunder shall be effective, in to a Person that is not a Disqualified Lender (each case unless and until an Assignment and Acceptance effecting the assignment or transfer thereof shall have been accepted by the Administrative Agent and recorded in the Register as provided above. Prior to such recordation, all amounts owed with respect to the applicable Pro Rata Share recipient of the Revolving Facility shall be owed to the Lender listed in the Register as the owner thereof, and any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is listed in the Register as a Lender shall be conclusive and binding on any subsequent holder, assignee or transferee of the corresponding Pro Rata Share of the Revolving Facility.
(e) Each Lender may from time to time grant participations to one or more banks or other financial institutions in or to all or participation a portion of its rights and/or obligations under this Agreement“Participant”); provided, howeverthat after giving effect to the sale of such participation, that (i) such LenderXxxxxx’s obligations under this Agreement hereunder and rights to consent to any waiver hereunder or amendment hereof shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) the participating banks or other financial institutions shall not be a all amounts payable to such Lender hereunder for and all rights to consent to any purpose except, waiver hereunder or amendment hereof shall be determined as if the participation agreement so provides, for the purposes of Sections 3.5, 3.6, 11.11 and 11.21 but only to the extent that the cost of such benefits to Borrower does Lender had not exceed the cost which Borrower would have incurred in respect of the Lender granting sold such participation absent interest, and the participation, (iv) Borrower, the Administrative Agent and the other Lenders parties hereto shall continue to deal solely and directly with such Lender and not be obligated to deal with such participant. Each Lender that sells a participation shall, acting solely for this purpose as an agent of the Borrower, maintain a register in which it enters the name and address of each Participant and the outstanding principal amounts (and accrued interest) of each Participant’s interest in the Advances or other obligations under the Transaction Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Transaction Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Agent shall have no responsibility for maintaining a Participant Register. Each recipient of a participation shall, to the fullest extent permitted by law, have the same rights, benefits and obligations (including the obligations under Section 2.15(G) and Section 2.18), hereunder with respect to the rights and benefits so participated as it would have if it were a Lender hereunder, except that no Participant shall be entitled to receive any greater payment under Sections 2.11 or 2.15 than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation. Notwithstanding any other provision of this Agreement to the contrary, (i) a Lender may pledge as collateral, or grant a security interest in, all or any portion of its rights in, to and under this Agreement to a security trustee in connection with the funding by such Lender’s rights and obligations under this Agreement, (v) the participation interest shall be expressed as a percentage Lender of the granting Lender’s Pro Rata Share of the Revolving Facility as it then exists and shall not restrict an increase in the Revolving Facility (or the aggregate Commitments pertaining thereto), or in the granting Lender’s rights and obligations hereunder, so long as the amount of the participation interest is not affected thereby and (vi) Advances without the consent of the holder of Borrower; provided that no such participation interest pledge or grant shall not be required for amendments or waivers of provisions of the Loan Documents other than those which (A) extend any Amortization Date, any applicable Maturity Date or any other date upon which any payment of money is due to the Lenders, (B) reduce the rate of interest on the Notes, any fee or any other monetary amount payable to the Lenders, (C) reduce the amount of any installment of principal due under the Notes, or (D) release any Guarantor such Lender from its Guaranty.
(f) Borrower agrees that upon the occurrence and during the continuance of any Event of Default, each Lender shall be entitled to assign its rights hereunder and under the Loan Documents, or grant participation interests in its rights obligations under this Agreement and the Loan Documents, to any Person, in whole or in any part thereof, notwithstanding any provisions contained herein (including those set forth in subsection (b) above) or in any other Loan Document to the contrary, except that, other than (i) assignments by a Lender to an Affiliate of such Lender or to another Lender or (ii) pledges described in a Conduit Lender may at any time, without any requirement to obtain the last sentence of subsection (a) above, no assignment shall be made without the approval consent of the Administrative AgentAgent or the Borrower, pledge or grant a security interest in all or any portion of its rights (including, without limitation, rights to payment of capital and yield) under this Agreement to a collateral agent or trustee for its commercial paper program.
Appears in 3 contracts
Samples: Credit Agreement (Sunnova Energy International Inc.), Credit Agreement (Sunnova Energy International Inc.), Credit Agreement (Sunnova Energy International Inc.)
Binding Effect; Assignment. (a) This Agreement and the other Loan Documents to which Borrower is a Party will shall be binding upon the Seller and inure to the benefit of Borrower, the Administrative Agent, each of the LendersPurchasers, and their respective successors and permitted assigns. Except as expressly provided in this Agreement, except that Borrower may this Agreement shall not assign its be construed so as to confer any right or benefit upon any Person other than the parties to this Agreement, and their respective successors and permitted assigns. Subject to applicable federal and state securities laws the rights hereunder or thereunder or any interest herein or therein without the prior written consent of all the Lenders. Each Lender represents that it is not acquiring its Note with a view to the distribution thereof within the meaning and obligations of the Securities Act of 1933, as amended (subject to any requirement that disposition of such Note must be within the control of such Lender). Any Lender may at any time pledge its Note or any other instrument evidencing its rights as a Lender Purchasers under this Agreement with respect to a Federal Reserve Bankthe Warrants and the Equity Documents may be sold, but no assigned or pledged by any Purchaser, in whole or in part, in accordance with the provisions of the Warrants, and upon any such pledge assignment, the holders of the Warrants shall release that Lender from its obligations hereunder or grant succeed to such Federal Reserve Bank all of the rights of a Lender hereunder absent foreclosure of such pledge.
(b) From time to time following the Closing Date, each Lender may assign to one or more Eligible Assignees all or any portion of its selling Purchaser's rights and obligations under this Agreement (including all or a portion of its Commitment, with respect to the Advances owing to it Warrants and the Note Equity Documents to the extent assigned and the selling Purchaser shall be automatically released from any obligations thereunder with respect to the Warrants and the Equity Documents to the extent assigned. Subject to applicable federal and state securities laws the Acquired Shares may be sold, assigned or Notes held by it); provided that, pledged subject only to subsection (f) below, (i) the Registration Rights Agreement and upon any such Eligible Assignee, if not then a Lender or an Affiliate assignment the holders of the assigning Lender, Acquired Shares shall be approved by the Administrative Agent and Borrower (neither of which approvals shall be unreasonably withheld or delayed), (ii) such assignment shall be evidenced by an Assignment and Acceptance, a copy of which shall be furnished succeed to the Administrative Agent as hereinbelow provided, (iii) except in the case of an assignment to an Affiliate of the assigning Lender, to another Lender or of the entire remaining Purchaser's rights and obligations under the Registration Rights Agreement. Upon request of any Purchaser in connection with any transfer of the assigning Lender under Warrants or Acquired Shares, the Seller shall execute and deliver any amendment to this Agreement, the assignment shall not assign a portion of such assigning Lender’s Commitments and/or Advances owing to such assigning Lender that is equivalent to less than $3,000,000Warrants, and (iv) the effective date of any such assignment shall be as specified in the Assignment and Acceptance, but not earlier than the date which is five (5) Banking Days after the date the Administrative Agent has received the Assignment and Acceptance. Upon the effective date of such Assignment and Acceptance, the Eligible Assignee named therein shall be a Lender for all purposes of this Agreement, with the Commitments and/or Advances therein set forth and, to the extent of such Commitments and/or Advances, the assigning Lender shall be released from its further obligations under this Agreement. Borrower agrees that it shall execute and deliver (against delivery by the assigning Lender to Borrower of such Lender’s Notes) to such assignee Lender, Notes evidencing that assignee Lender’s Commitments and/or Advances, and to the assigning Lender, Notes evidencing the remaining balance of the Commitments and/or Advances retained by the assigning Lender.
(c) By executing and delivering an Assignment and Acceptance, the Eligible Assignee thereunder acknowledges and agrees that: (i) other than the representation and warranty that it is the legal and beneficial owner of the rights and obligations hereunder being assigned thereby free and clear of any adverse claim, the assigning Lender has made 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 or sufficiency of this Agreement or any other Loan Document; (ii) the assigning Lender has made no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance by Borrower of the Obligations; (iii) it has received a copy of this Agreement, together with copies of the most recent financial statements delivered pursuant to Section 7.1 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) it will, independently and without reliance upon the Administrative Agent or any Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) it appoints and authorizes the Administrative Agent to take such action and to exercise such powers under this Agreement as are delegated to the Administrative Agent by this Agreement; and (vi) 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.
(d) The Administrative Agent shall maintain at the Administrative Agent’s Office a copy of each Assignment and Acceptance delivered to it and a register (the “Register”) of the names and address of each of the Lenders and the Pro Rata Share of the Commitments held by each Lender, giving effect to each Assignment and Acceptance. The Register shall be available during normal business hours for inspection by Borrower or any Lender upon reasonable prior notice to the Administrative Agent. After receipt of a completed Assignment and Acceptance executed by any Lender and an Eligible Assignee, and receipt of an assignment fee of $3,500 from such Lender or Eligible Assignee, the Administrative Agent shall, promptly following the effective date thereof, provide to Borrower and the Lenders a revised Schedule 1.1 giving effect thereto. Borrower, the Administrative Agent and the Lenders shall deem and treat the Persons listed as Lenders in the Register as the holders and owners of the Pro Rata Shares of the Revolving Facility listed therein for all purposes hereof, and no assignment or transfer of any Lender’s rights and obligations hereunder shall be effective, in each case unless and until an Assignment and Acceptance effecting the assignment or transfer thereof shall have been accepted by the Administrative Agent and recorded in the Register as provided above. Prior to such recordation, all amounts owed with respect to the applicable Pro Rata Share of the Revolving Facility shall be owed to the Lender listed in the Register as the owner thereof, and any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is listed in the Register as a Lender shall be conclusive and binding on any subsequent holder, assignee or transferee of the corresponding Pro Rata Share of the Revolving Facility.
(e) Each Lender may from time to time grant participations to one or more banks or other financial institutions in or to all or a portion of its rights and/or obligations under this Agreement; provided, however, that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) the participating banks or other financial institutions shall not be a Lender hereunder for any purpose except, if the participation agreement so provides, for the purposes of Sections 3.5, 3.6, 11.11 and 11.21 but only to the extent that the cost of such benefits to Borrower does not exceed the cost which Borrower would have incurred in respect of the Lender granting such participation absent the participation, (iv) Borrower, the Administrative Agent and the other Lenders shall continue Equity Documents reasonably requested by the Purchaser to deal solely reflect the transfer and directly with such Lender in connection with such Lender’s delineate the rights and obligations under this Agreement, (v) the participation interest shall be expressed as a percentage of the granting Lender’s Pro Rata Share of the Revolving Facility as it then exists and shall not restrict an increase in the Revolving Facility (or the aggregate Commitments pertaining thereto), or in the granting Lender’s rights and obligations hereunder, so long as the amount of the participation interest is not affected thereby and (vi) the consent of the holder of such participation interest shall not be required for amendments or waivers of provisions of the Loan Documents other than those which (A) extend any Amortization Date, any applicable Maturity Date or any other date upon which any payment of money is due to the Lenders, (B) reduce the rate of interest on the Notes, any fee or any other monetary amount payable to the Lenders, (C) reduce the amount of any installment of principal due under the Notes, or (D) release any Guarantor from its Guaranty.
(f) Borrower agrees that upon the occurrence and during the continuance of any Event of Default, each Lender shall be entitled to assign its rights hereunder and under the Loan Documents, or grant participation interests in its rights under this Agreement transferor and the Loan Documents, to any Person, in whole or in any part thereof, notwithstanding any provisions contained herein (including those set forth in subsection (b) above) or in any other Loan Document to the contrary, except that, other than (i) assignments by a Lender to an Affiliate of such Lender or to another Lender or (ii) pledges described in the last sentence of subsection (a) above, no assignment shall be made without the approval of the Administrative Agenttransferee.
Appears in 3 contracts
Samples: Securities Purchase Agreement (Enron Capital & Trade Resources Corp), Securities Purchase Agreement (Brigham Holdings Ii LLC), Securities Purchase Agreement (Brigham Exploration Co)
Binding Effect; Assignment. (a) This Agreement and the other Loan Documents to which Borrower is a Party will shall be binding upon Purchaser and, subject to entry of the Bidding Procedures Order (with respect to the matters covered thereby) and the Sale Order, Seller, and inure to the benefit of Borrower, the Administrative Agent, each of the Lenders, Parties and their respective successors and permitted assigns, except that Borrower may not assign its rights hereunder including any trustee or thereunder estate representative appointed in the Bankruptcy Cases or any interest herein successor Chapter 7 case. Nothing in this Agreement shall create or therein be deemed to create any third party beneficiary rights in any Person or entity not a party to this Agreement except as provided below. No assignment of this Agreement or of any rights or obligations hereunder may be made by Seller or Purchaser (by operation of law or otherwise) without the prior written consent of all the Lendersother Parties and any attempted assignment without such required consents shall be void, except for designations by Purchaser to a Designated Purchaser (as defined below) in accordance with the immediately following paragraph. Each Lender represents that it is not acquiring its Note In connection with a view the Closing, notwithstanding anything to the distribution thereof within contrary contained herein, Purchaser shall be entitled to designate, in accordance with the meaning terms of this paragraph, one or more Subsidiaries or Affiliates to (a) purchase specified Purchased Assets (including specified Assigned Contracts) and pay the Securities Act of 1933, as amended (subject to any requirement that disposition of such Note must be within the control of such Lender). Any Lender may at any time pledge its Note corresponding Purchase Price amount or any other instrument evidencing its rights as a Lender under this Agreement to a Federal Reserve Bank, but no such pledge shall release that Lender from its obligations hereunder or grant to such Federal Reserve Bank the rights of a Lender hereunder absent foreclosure of such pledge.
(b) From time assume specified Assumed Liabilities (any such Subsidiary or Affiliate of Purchaser that shall be designated in accordance with this clause, a “Designated Purchaser”). In addition, in accordance with Section 6.1, a Designated Purchaser shall be entitled to time following employ specified Transferred Employees on and after the Closing Date. Upon any such designation of a Designated Purchaser, each Lender may assign such Designated Purchaser shall be principally responsible with respect to one or more Eligible Assignees all or any portion the payment of its rights the corresponding Purchase Price, the specified Assumed Liabilities and obligations under employment of the specified Transferred Employees. Any reference to Purchaser made in this Agreement (including all in respect of any purchase, assumption or employment referred to in this paragraph shall be deemed a portion reference to the appropriate Designated Purchaser, if any, with respect to the given obligation. All obligations of its CommitmentPurchaser and the Designated Purchasers shall be joint and several. The above designations shall be made by Purchaser by way of a written notice to be delivered to Seller in no event later than the Business Day prior to Closing. In addition, the Advances owing Parties agree to it and modify any Closing deliverables in accordance with the Note foregoing assignment. No such designation or Notes held by it); provided that, subject to subsection (f) below, (i) such Eligible Assignee, if not then a Lender or an Affiliate of the assigning Lender, shall be approved by the Administrative Agent and Borrower (neither of which approvals shall be unreasonably withheld or delayed), (ii) such assignment shall be evidenced by an Assignment and Acceptance, a copy of which shall be furnished to the Administrative Agent as hereinbelow provided, (iii) except in the case of an assignment to an Affiliate of the assigning Lender, to another Lender or of the entire remaining rights and obligations of the assigning Lender under this Agreement, the assignment shall not assign a portion of such assigning Lender’s Commitments and/or Advances owing to such assigning Lender that is equivalent to less than $3,000,000, and (iv) the effective date relieve Purchaser of any such assignment shall be as specified in the Assignment and Acceptance, but not earlier than the date which is five (5) Banking Days after the date the Administrative Agent has received the Assignment and Acceptance. Upon the effective date of such Assignment and Acceptance, the Eligible Assignee named therein shall be a Lender for all purposes of this Agreement, with the Commitments and/or Advances therein set forth and, to the extent of such Commitments and/or Advances, the assigning Lender shall be released from its further obligations under this Agreement. Borrower agrees that it shall execute and deliver (against delivery by the assigning Lender to Borrower of such Lender’s Notes) to such assignee Lender, Notes evidencing that assignee Lender’s Commitments and/or Advances, and to the assigning Lender, Notes evidencing the remaining balance of the Commitments and/or Advances retained by the assigning Lender.
(c) By executing and delivering an Assignment and Acceptance, the Eligible Assignee thereunder acknowledges and agrees that: (i) other than the representation and warranty that it is the legal and beneficial owner of the rights and obligations hereunder being assigned thereby free and clear of any adverse claim, the assigning Lender has made 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 or sufficiency of this Agreement or any other Loan Document; (ii) the assigning Lender has made no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance by Borrower of the Obligations; (iii) it has received a copy of this Agreement, together with copies of the most recent financial statements delivered pursuant to Section 7.1 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) it will, independently and without reliance upon the Administrative Agent or any Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) it appoints and authorizes the Administrative Agent to take such action and to exercise such powers under this Agreement as are delegated to the Administrative Agent by this Agreement; and (vi) 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.
(d) The Administrative Agent shall maintain at the Administrative Agent’s Office a copy of each Assignment and Acceptance delivered to it and a register (the “Register”) of the names and address of each of the Lenders and the Pro Rata Share of the Commitments held by each Lender, giving effect to each Assignment and Acceptance. The Register shall be available during normal business hours for inspection by Borrower or any Lender upon reasonable prior notice to the Administrative Agent. After receipt of a completed Assignment and Acceptance executed by any Lender and an Eligible Assignee, and receipt of an assignment fee of $3,500 from such Lender or Eligible Assignee, the Administrative Agent shall, promptly following the effective date thereof, provide to Borrower and the Lenders a revised Schedule 1.1 giving effect thereto. Borrower, the Administrative Agent and the Lenders shall deem and treat the Persons listed as Lenders in the Register as the holders and owners of the Pro Rata Shares of the Revolving Facility listed therein for all purposes hereof, and no assignment or transfer of any Lender’s rights and obligations hereunder shall be effective, in each case unless and until an Assignment and Acceptance effecting the assignment or transfer thereof shall have been accepted by the Administrative Agent and recorded in the Register as provided above. Prior to such recordation, all amounts owed with respect to the applicable Pro Rata Share of the Revolving Facility shall be owed to the Lender listed in the Register as the owner thereof, and any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is listed in the Register as a Lender shall be conclusive and binding on any subsequent holder, assignee or transferee of the corresponding Pro Rata Share of the Revolving Facility.
(e) Each Lender may from time to time grant participations to one or more banks or other financial institutions in or to all or a portion of its rights and/or obligations under this Agreement; provided, however, that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) the participating banks or other financial institutions shall not be a Lender hereunder for any purpose except, if the participation agreement so provides, for the purposes of Sections 3.5, 3.6, 11.11 and 11.21 but only to the extent that the cost of such benefits to Borrower does not exceed the cost which Borrower would have incurred in respect of the Lender granting such participation absent the participation, (iv) Borrower, the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement, (v) the participation interest shall be expressed as a percentage of the granting Lender’s Pro Rata Share of the Revolving Facility as it then exists and shall not restrict an increase in the Revolving Facility (or the aggregate Commitments pertaining thereto), or in the granting Lender’s rights and obligations hereunder, so long as the amount of the participation interest is not affected thereby and (vi) the consent of the holder of such participation interest shall not be required for amendments or waivers of provisions of the Loan Documents other than those which (A) extend any Amortization Date, any applicable Maturity Date or any other date upon which any payment of money is due to the Lenders, (B) reduce the rate of interest on the Notes, any fee or any other monetary amount payable to the Lenders, (C) reduce the amount of any installment of principal due under the Notes, or (D) release any Guarantor from its Guaranty.
(f) Borrower agrees that upon the occurrence and during the continuance of any Event of Default, each Lender shall be entitled to assign its rights hereunder and under the Loan Documents, or grant participation interests in its rights under this Agreement and the Loan Documents, to any Person, in whole or in any part thereof, notwithstanding any provisions contained herein (including those set forth in subsection (b) above) or in any other Loan Document to the contrary, except that, other than (i) assignments by a Lender to an Affiliate of such Lender or to another Lender or (ii) pledges described in the last sentence of subsection (a) above, no assignment shall be made without the approval of the Administrative Agent.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Ciber Inc), Asset Purchase Agreement (Ciber Inc)
Binding Effect; Assignment. (a) This Agreement and the other Loan Documents to which Borrower is a Party will be binding upon and Warrant shall inure to the benefit of Borrower, and be binding upon the Administrative Agent, each of Company and the Lenders, Holder and their respective successors successors, heirs, legal representatives and permitted assigns. This Warrant and the Warrant Shares (collectively, except that Borrower “Securities”) may only be disposed of pursuant to an effective registration statement under the Securities Act or pursuant to an available exemption from or in a transaction not assign its rights hereunder or thereunder or subject to the registration requirements of the Securities Act, and in compliance with any interest herein or therein without applicable federal and state securities laws. In connection with any transfer of Securities other than pursuant to an effective registration statement, transfer may only be made with the prior written consent of all the Lenders. Each Lender represents that it is Company, which shall not acquiring its Note with a view be unreasonably withheld, and the Company may require the transferor to provide to the distribution thereof within Company an opinion of counsel selected by the meaning of the Securities Act of 1933, as amended (subject to any requirement that disposition of such Note must be within the control of such Lender). Any Lender may at any time pledge its Note or any other instrument evidencing its rights as a Lender under this Agreement to a Federal Reserve Bank, but no such pledge shall release that Lender from its obligations hereunder or grant to such Federal Reserve Bank the rights of a Lender hereunder absent foreclosure of such pledge.
(b) From time to time following the Closing Date, each Lender may assign to one or more Eligible Assignees all or any portion of its rights and obligations under this Agreement (including all or a portion of its Commitmenttransferor, the Advances owing to it form and the Note or Notes held by it); provided that, subject to subsection (f) below, (i) such Eligible Assignee, if not then a Lender or an Affiliate substance of the assigning Lender, which opinion shall be approved by the Administrative Agent and Borrower (neither of which approvals shall be unreasonably withheld or delayed), (ii) such assignment shall be evidenced by an Assignment and Acceptance, a copy of which shall be furnished reasonably satisfactory to the Administrative Agent as hereinbelow provided, (iii) except in the case of an assignment to an Affiliate of the assigning Lender, to another Lender or of the entire remaining rights and obligations of the assigning Lender under this Agreement, the assignment shall not assign a portion of such assigning Lender’s Commitments and/or Advances owing to such assigning Lender that is equivalent to less than $3,000,000, and (iv) the effective date of any such assignment shall be as specified in the Assignment and Acceptance, but not earlier than the date which is five (5) Banking Days after the date the Administrative Agent has received the Assignment and Acceptance. Upon the effective date of such Assignment and Acceptance, the Eligible Assignee named therein shall be a Lender for all purposes of this Agreement, with the Commitments and/or Advances therein set forth andCompany, to the extent effect that such transfer does not require registration of such Commitments and/or Advances, transferred securities under the assigning Lender shall be released from its further obligations under this Agreement. Borrower agrees that it shall execute and deliver (against delivery by the assigning Lender to Borrower of such Lender’s Notes) to such assignee Lender, Notes evidencing that assignee Lender’s Commitments and/or Advances, and to the assigning Lender, Notes evidencing the remaining balance of the Commitments and/or Advances retained by the assigning Lender.
(c) By executing and delivering an Assignment and Acceptance, the Eligible Assignee thereunder acknowledges and agrees that: (i) other than the representation and warranty that it is the legal and beneficial owner of the rights and obligations hereunder being assigned thereby free and clear of any adverse claim, the assigning Lender has made 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 or sufficiency of this Agreement or any other Loan Document; (ii) the assigning Lender has made no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance by Borrower of the Obligations; (iii) it has received a copy of this Agreement, together with copies of the most recent financial statements delivered pursuant to Section 7.1 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) it will, independently and without reliance upon the Administrative Agent or any Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) it appoints and authorizes the Administrative Agent to take such action and to exercise such powers under this Agreement as are delegated to the Administrative Agent by this Agreement; and (vi) 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.
(d) The Administrative Agent shall maintain at the Administrative Agent’s Office a copy of each Assignment and Acceptance delivered to it and a register (the “Register”) of the names and address of each of the Lenders and the Pro Rata Share of the Commitments held by each Lender, giving effect to each Assignment and Acceptance. The Register shall be available during normal business hours for inspection by Borrower or any Lender upon reasonable prior notice to the Administrative Agent. After receipt of a completed Assignment and Acceptance executed by any Lender and an Eligible Assignee, and receipt of an assignment fee of $3,500 from such Lender or Eligible Assignee, the Administrative Agent shall, promptly following the effective date thereof, provide to Borrower and the Lenders a revised Schedule 1.1 giving effect thereto. Borrower, the Administrative Agent and the Lenders shall deem and treat the Persons listed as Lenders in the Register as the holders and owners of the Pro Rata Shares of the Revolving Facility listed therein for all purposes hereof, and no assignment or transfer of any Lender’s rights and obligations hereunder shall be effective, in each case unless and until an Assignment and Acceptance effecting the assignment or transfer thereof shall have been accepted by the Administrative Agent and recorded in the Register as provided above. Prior to such recordation, all amounts owed with respect to the applicable Pro Rata Share of the Revolving Facility shall be owed to the Lender listed in the Register as the owner thereof, and any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is listed in the Register as a Lender shall be conclusive and binding on any subsequent holder, assignee or transferee of the corresponding Pro Rata Share of the Revolving Facility.
(e) Each Lender may from time to time grant participations to one or more banks or other financial institutions in or to all or a portion of its rights and/or obligations under this AgreementSecurities Act; provided, however, that (i) such Lender’s obligations under this Agreement notwithstanding the foregoing, no consent of the Company shall remain unchanged, (ii) such Lender shall remain solely responsible be required for the assignment or transfer of rights hereunder by a Holder to the other parties hereto for the performance spouse, ancestors, lineal descendants or siblings of such obligationsassignor or transferor, provided the transferee(s) certify to the Company that each is an “accredited investor” within the meaning of Rule 501(a) under the Securities Act and that it is acquiring the Securities solely for investment purposes. The Company shall register the transfer of any portion of this Warrant, upon surrender of this Warrant with the Form of Assignment attached hereto duly completed and signed, to the Company’s transfer agent or to the Company at the office specified in Section 8.2. Upon any such transfer, a new warrant to purchase Common Stock, in substantially the form of this Warrant (iii) any such new warrant, a “New Warrant”), evidencing the participating banks or other financial institutions portion of this Warrant so transferred shall be issued to the transferee and a New Warrant evidencing the remaining portion of this Warrant not be a Lender hereunder for any purpose exceptso transferred, if the participation agreement so providesany, for the purposes of Sections 3.5, 3.6, 11.11 and 11.21 but only shall be issued to the extent that transferring Holder. The acceptance of a New Warrant by the cost transferee shall be deemed the acceptance by such transferee of such benefits to Borrower does not exceed the cost which Borrower would have incurred in respect all of the Lender granting such participation absent the participation, (iv) Borrower, the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreementof a holder of a Warrant. This Warrant is exchangeable, (v) upon the participation interest shall be expressed as a percentage surrender hereof by the Holder to the office of the granting Lender’s Pro Rata Share of the Revolving Facility as it then exists and shall not restrict an increase Company specified in Section 8.2, for one or more New Warrants evidencing in the Revolving Facility (or aggregate the aggregate Commitments pertaining thereto), or in right to purchase the granting Lender’s rights and obligations number of Warrant Shares which may then be purchased hereunder, so long as . Any such New Warrant will be dated the amount of the participation interest is not affected thereby and (vi) the consent of the holder date of such participation interest shall not be required for amendments or waivers of provisions of the Loan Documents other than those which (A) extend any Amortization Date, any applicable Maturity Date or any other date upon which any payment of money is due to the Lenders, (B) reduce the rate of interest on the Notes, any fee or any other monetary amount payable to the Lenders, (C) reduce the amount of any installment of principal due under the Notes, or (D) release any Guarantor from its Guarantyexchange.
(f) Borrower agrees that upon the occurrence and during the continuance of any Event of Default, each Lender shall be entitled to assign its rights hereunder and under the Loan Documents, or grant participation interests in its rights under this Agreement and the Loan Documents, to any Person, in whole or in any part thereof, notwithstanding any provisions contained herein (including those set forth in subsection (b) above) or in any other Loan Document to the contrary, except that, other than (i) assignments by a Lender to an Affiliate of such Lender or to another Lender or (ii) pledges described in the last sentence of subsection (a) above, no assignment shall be made without the approval of the Administrative Agent.
Appears in 2 contracts
Samples: Warrant Agreement (Microfield Group Inc), Warrant Agreement (Microfield Group Inc)
Binding Effect; Assignment. (a) This Agreement and the other Loan Documents to which Borrower is a Party party will be binding upon and inure to the benefit of BorrowerCo-Borrowers, the Administrative Agent, each of the Lenders, Lenders and their respective successors and assigns, except that that, a Co-Borrower may not not, except as permitted by Section 7.03, assign its rights hereunder or thereunder or any interest herein or therein without the prior written consent of all the Lenders. Each Lender represents that it is not acquiring its Note with a view to the distribution thereof within the meaning of the Securities Act of 1933, as amended (subject to Lenders and any requirement that disposition of such Note must attempted assignment shall be within the control of such Lender)void. Any Lender may at any time pledge its a Note or any other instrument evidencing its rights as a Lender under this Agreement to a Federal Reserve BankBank or, if such Lender is a fund, to any trustee or to any other representative of holders of obligations owed or securities issued by such fund as security for such obligations or securities, but no such pledge shall release that such Lender from its obligations hereunder or grant to such Federal Reserve Bank or trust or other representative the rights of a Lender hereunder absent foreclosure of such pledge, and any transfer to any Person upon the enforcement of such pledge shall be subject to this Section 10.04.
(b) From time to time following the Closing Datedate of this Agreement, each Lender may assign to one or more Eligible Assignees banks, financial institutions or other entities (with any such bank, financial institution or other entity that is not an Affiliate of the assigning Lender being required to have a combined capital and surplus of at least $250,000,000 (such qualifications being subject to waiver by Borrower and Administrative Agent)), all or any portion of its rights and obligations under this Agreement (including all or a portion of its Commitment, the Advances owing to it and the Note or Notes held by it)other Loan Documents; provided that, subject to subsection (f) below, that (i) such Eligible Assigneeassignment, if not then to a Lender or an Affiliate of the assigning a Lender, shall be approved by the Administrative Agent and Borrower consented to (neither of which approvals consents shall not be unreasonably withheld or delayed)withheld) by Borrower at all times other than during the existence of an Event of Default and by Administrative Agent, (ii) such assignment shall be evidenced by an Assignment and Acceptance, a copy of which a duly signed and completed Assignment and Acceptance shall be furnished delivered to the Administrative Agent as hereinbelow providedAgent, (iii) except in the case of an assignment (A) to an Affiliate of a Lender or to another Lender or (B) of the entire remaining Revolving Commitment of the assigning Lender, to another Lender or of the entire remaining rights and obligations of the assigning Lender under this Agreement, the such assignment shall be in an aggregate principal amount not assign a portion of such assigning Lender’s Commitments and/or Advances owing to such assigning Lender that is equivalent to less than $3,000,000the Minimum Amount therefor, and (iv) the effective date of any such assignment shall be as specified in the Assignment and Acceptance, but not earlier than the date which is five (5) Banking Business Days after the date the Administrative Agent has received the Assignment and Acceptance. Upon obtaining any consent required as set forth in the effective date prior sentence, any forms required by Section 10.20 and payment of such Assignment and Acceptancethe requisite fee described below, the Eligible Assignee assignee named therein shall be a Lender for all purposes of this Agreement, with the Commitments and/or Advances therein set forth and, Agreement to the extent of the Assigned Interest (as defined in such Commitments and/or AdvancesAssignment and Acceptance), and, except for rights and obligations which by their terms survive termination of any Revolving Commitments, the assigning Lender shall be released from its any further obligations under this AgreementAgreement to the extent of such Assigned Interest. Borrower agrees that it Upon request, Co-Borrowers shall execute and deliver (against delivery by new or replacement Notes to the assigning Lender and the assignee Lender to Borrower of such Lenderevidence Loans made by them. Administrative Agent’s Notes) consent to such assignee Lender, Notes evidencing that assignee Lender’s Commitments and/or Advances, any assignment shall not be deemed to constitute any representation or warranty by any Administrative Agent-Related Person as to any matter. Administrative Agent shall record the information contained in the Assignment and to Acceptance in the assigning Lender, Notes evidencing the remaining balance of the Commitments and/or Advances retained by the assigning LenderRegister.
(c) By executing and delivering an Assignment and Acceptance, the Eligible Assignee thereunder acknowledges and agrees that: (i) other than the representation and warranty that it is the legal and beneficial owner of the rights and obligations hereunder being assigned thereby free and clear of any adverse claim, the assigning Lender has made 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 or sufficiency of this Agreement or any other Loan Document; (ii) the assigning Lender has made no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance by Borrower of the Obligations; (iii) it has received a copy of this Agreement, together with copies of the most recent financial statements delivered pursuant to Section 7.1 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) it will, independently and without reliance upon the Administrative Agent or any Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) it appoints and authorizes the Administrative Agent to take such action and to exercise such powers under this Agreement as are delegated to the Administrative Agent by this Agreement; and (vi) 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.
(d) The Administrative Agent shall maintain at the Administrative Agent’s Office a copy of each Assignment and Acceptance delivered to it and a register (the “Register”) of the names and address of each of the Lenders and the Pro Rata Share of the Commitments held by each Lender, giving effect to each Assignment and Acceptance. The Register shall be available during normal business hours for inspection by Borrower or any Lender upon reasonable prior notice to the Administrative Agent. After receipt of a completed Assignment and Acceptance executed by any Lender and an Eligible AssigneeAcceptance, and receipt of an assignment fee of $3,500 from such assignee and/or such assigning Lender or Eligible Assignee(including in the case of assignments to Affiliates of assigning Lenders), the Administrative Agent shall, shall promptly following accept such Assignment and Acceptance and record the information contained therein in the Register on the effective date thereof, provide to Borrower and the Lenders a revised Schedule 1.1 giving effect determined pursuant thereto. Borrower, the Administrative Agent and the Lenders shall deem and treat the Persons listed as Lenders in the Register as the holders and owners of the Pro Rata Shares of the Revolving Facility listed therein for all purposes hereof, and no assignment or transfer of any Lender’s rights and obligations hereunder shall be effective, in each case unless and until an Assignment and Acceptance effecting the assignment or transfer thereof shall have been accepted by the Administrative Agent and recorded in the Register as provided above. Prior to such recordation, all amounts owed with respect to the applicable Pro Rata Share of the Revolving Facility shall be owed to the Lender listed in the Register as the owner thereof, and any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is listed in the Register as a Lender shall be conclusive and binding on any subsequent holder, assignee or transferee of the corresponding Pro Rata Share of the Revolving Facility.
(ed) Each Lender may from time to time time, without the consent of any other Person, grant participations to one or more banks or other financial institutions Persons (including another Lender) in or to all or a any portion of its rights and/or obligations Revolving Commitments, Extensions of Credit or any other interest of such Lender hereunder and under this Agreementthe other Loan Documents; provided, however, that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) the participating banks bank or other financial institutions institution shall not be a Lender hereunder for any purpose except, if the participation agreement so provides, for the purposes of Sections 3.5, 3.6, 11.11 and 11.21 the increased cost provisions of Section 3 (but only to the extent that the cost of such benefits to Borrower does not exceed the cost which Borrower would have incurred in respect of the such Lender granting such participation absent the participation) and for purposes of Section 10.06, (iv) Borrower, the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement, and (v) the participation interest shall be expressed as a percentage of the granting Lender’s Pro Rata Share of the Revolving Facility as it then exists and shall not restrict an increase in the Revolving Facility (or the aggregate Commitments pertaining thereto), or in the granting Lender’s rights and obligations hereunder, so long as the amount of the participation interest is not affected thereby and (vi) the consent of the holder of such participation interest shall not be required for amendments or waivers of provisions of the Loan Documents other than those Documents; provided, however, that the assigning Lender may, in any agreement with a participant, give such participant the right to consent (as between the assigning Lender and such participant) to any matter which (A) extend any Amortization Date, any applicable Maturity extends the Revolving Termination Date as to such participant or any other date upon which any payment of money is due to the Lenderssuch participant, (B) reduce reduces the rate of interest on the Notes, owing to such participant or any fee or any other monetary amount payable owing to the Lenderssuch participant, or (C) reduce reduces the amount of any installment scheduled payment of principal due under owing to such participant. Any Lender that sells a participation to any Person that is a “foreign corporation, partnership or trust” within the Notes, meaning of the Code shall include in its participation agreement with such Person a covenant by such Person that such Person will comply with the provisions of Section 10.20 as if such Person were a Lender and provide that Administrative Agent and Borrower shall be third party beneficiaries of such covenant. Each Lender that sells or grants a participation shall (Da) release any Guarantor withhold or deduct from its Guaranty.
(f) Borrower agrees that upon each payment to the occurrence and during holder of such participation the continuance amount of any Event of Defaulttax required under applicable law to be withheld or deducted from such payment and not withheld or deducted therefrom by Borrower or Administrative Agent, each Lender shall be entitled to assign its rights hereunder and under the Loan Documents, or grant participation interests in its rights under this Agreement and the Loan Documents, to any Person, in whole or in any part thereof, notwithstanding any provisions contained herein (including those set forth in subsection (b) above) pay the tax so withheld or in any other Loan Document deducted by it to the contraryappropriate taxing authority in accordance with applicable law and (c) indemnify Borrower and Administrative Agent for any losses, except that, other than (i) assignments by cost and expenses that they may incur as a Lender result of any failure to an Affiliate of so withhold or deduct and pay such Lender or to another Lender or (ii) pledges described in the last sentence of subsection (a) above, no assignment shall be made without the approval of the Administrative Agenttax.
Appears in 2 contracts
Samples: Credit Agreement (Comcast Corp), Credit Agreement (Comcast Corp)
Binding Effect; Assignment. (a) This Agreement and the other Loan Documents to which Borrower is a Party will shall be binding upon and shall inure to the benefit of Borrower, the Administrative Agent, each of the Lenders, parties hereto and thereto and their respective successors and assigns, except that Borrower and its Affiliates may not assign its their rights hereunder or thereunder or any interest herein or therein without the prior written consent of all the Lenders. Any assignment by the Borrower or its Affiliates without the prior written consent of the Lenders shall be void, provided that no Person other than the Lenders shall have any rights under this sentence. Each Lender represents that it is not acquiring its any Note with a view to the distribution thereof within the meaning of the Securities Act of 1933, as amended (subject to any requirement that disposition of such Note Notes must be within the control of such Lender). Any Lender may at any time pledge its Note Note, if any, or any other instrument evidencing its rights as a Lender under this Agreement to a Federal Reserve Bank, but no such pledge shall release that Lender from its obligations hereunder or grant to such Federal Reserve Bank the rights of a Lender hereunder absent foreclosure of such pledge.
(b) From time to time following the Closing Date, each Lender may assign to one or more Eligible Assignees all or any portion of its rights and obligations under this Agreement (including all or a portion of its Commitment, the Advances owing to it and the Note or Notes held by it)Pro Rata Share; provided that, subject to subsection (f) below, that (i) such Eligible Assignee, if not then a Lender or an Affiliate of the assigning Lender, shall be approved by the Administrative Agent and, so long as no Default or Event of Default has occurred and is continuing, also by Borrower (neither of which approvals shall be unreasonably withheld or delayed), (ii) such assignment shall be evidenced by an Assignment and AcceptanceAgreement, a copy of which shall be furnished to the Administrative Agent as hereinbelow providedAgent, (iii) except in the case of an assignment to an Affiliate of the assigning Lender, Lender or to another Lender or of the entire remaining rights and obligations Commitment of the assigning Lender under this AgreementLender, the assignment shall be of a Pro Rata Share of not assign a portion of such assigning Lender’s Commitments and/or Advances owing to such assigning Lender that is equivalent to less than $3,000,0001,000,000, and (iv) the effective date of any such assignment shall be as specified in the Assignment and AcceptanceAgreement, but not earlier than the date which is five (5) Banking Business Days after the date the Administrative Agent has received the Assignment and AcceptanceAgreement unless the Administrative Agent otherwise agrees. Upon the effective date of such Assignment and AcceptanceAgreement, the Eligible Assignee named therein shall be a Lender for all purposes of this Agreement, with the Commitments and/or Advances therein Pro Rata Share set forth therein and, to the extent of such Commitments and/or AdvancesPro Rata Share, the assigning Lender shall be released from its further obligations under this Agreement. Borrower agrees that it shall execute and deliver (against delivery by the assigning Lender to Borrower of such Lender’s Notesany Note in its possession) to such assignee Lender, Notes a Note evidencing that assignee Lender’s Commitments and/or AdvancesPro Rata Share, and to the assigning Lender, Notes a Note evidencing the remaining balance of the Commitments and/or Advances Pro Rata Share retained by the assigning LenderLender (in each case, if Notes are requested by such Assigning Lender or such Assignee under Section 2.1).
(c) By executing and delivering an Assignment and AcceptanceAgreement, the Eligible Assignee thereunder acknowledges and agrees that: (i) other than the representation and warranty that it is the legal and beneficial owner of the rights and obligations hereunder Pro Rata Share being assigned thereby free and clear of any adverse claim, the assigning Lender has made 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 or sufficiency of this Agreement or any other Loan Document; (ii) the assigning Lender has made no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance by Borrower of the Obligations; (iii) it has received a copy of this Agreement, together with copies of the most recent financial statements delivered pursuant to Section 7.1 8.1 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and AcceptanceAgreement; (iv) it will, independently and without reliance upon the Administrative Agent or any Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) it appoints and authorizes the Administrative Agent to take such action and to exercise such powers under this Agreement as are delegated to the Administrative Agent by this Agreement; and (vi) 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.
(d) The Administrative Agent shall maintain at the Administrative Agent’s Office a copy of each Assignment and Acceptance Agreement delivered to it and a register (the “Register”) of the names and address of each of the Lenders and the Pro Rata Share of the Commitments held by each Lender, giving effect to each Assignment and Acceptance. The Register shall be available during normal business hours for inspection by Borrower or any Lender upon reasonable prior notice to the Administrative Agentit. After receipt of a completed Assignment and Acceptance Agreement executed by any Lender and an Eligible Assignee, and receipt of an assignment fee of $3,500 from such Lender or Eligible Assignee, the Administrative Agent shall, promptly following the effective date thereof, provide notice thereof to Borrower and the Lenders a revised Schedule 1.1 giving effect thereto. Borrower, the Administrative Agent and the Lenders shall deem and treat the Persons listed as Lenders in the Register as the holders and owners of the Pro Rata Shares of the Revolving Facility listed therein for all purposes hereof, and no assignment or transfer of any Lender’s rights and obligations hereunder shall be effective, in each case unless and until an Assignment and Acceptance effecting the assignment or transfer thereof shall have been accepted by the Administrative Agent and recorded in the Register as provided above. Prior to such recordation, all amounts owed with respect to the applicable Pro Rata Share of the Revolving Facility shall be owed to the Lender listed in the Register as the owner thereof, and any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is listed in the Register as a Lender shall be conclusive and binding on any subsequent holder, assignee or transferee of the corresponding Pro Rata Share of the Revolving FacilityLenders.
(e) Each Lender may grant participations from time to time grant participations in a portion of its Pro Rata Share to one or more banks or other financial institutions in or to all or a portion of its rights and/or obligations under this Agreement(including another Lender); provided, however, that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) the participating banks or other financial institutions shall not be a Lender hereunder for any purpose except, if the participation agreement so provides, for the purposes of Sections 3.53.7, 3.63.8, 11.11 13.11 and 11.21 but only to the extent that the cost of such benefits to Borrower does not exceed the cost which Borrower would have incurred in respect of the Lender granting such participation absent the participation13.15, (iv) Borrower, the Administrative Agent Borrower and the other Lenders Creditors shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement, (v) the participation interest shall be expressed as a percentage of the granting Lender’s Pro Rata Share of the Revolving Facility as it then exists and shall not restrict an increase in the Revolving Facility (or the aggregate Commitments pertaining thereto)Commitment, or in the granting Lender’s rights and obligations hereunderPro Rata Share, so long as the amount of the participation interest is not affected thereby thereby, and (vi) the consent of the holder of such participation interest shall not be required for amendments or waivers of provisions of the Loan Documents other than those which (A) extend any Amortization the Maturity Date, any applicable Maturity Reduction Date or any other date upon which any payment of money is due to the Lenders, (B) reduce the rate of interest on the NotesLoans, any fee or any other monetary amount payable to the Lenders, (C) reduce the amount of any installment of principal due under with respect to the NotesLoans, or (D) release any Guarantor from its Guarantymaterial portion of the Collateral.
(f) Borrower agrees that upon Any Lender (a “Granting Lender”) may grant to a special purpose funding vehicle (an “SPC”) of such Granting Lender, identified as such in writing from time to time by the occurrence Granting Lender to the Administrative Agent and during the continuance Borrower, the option to provide all or any part of any Event Advance that such Granting Lender would otherwise be obligated to make pursuant to Article 2, provided that (i) nothing herein shall constitute a commitment to make any Advance by any SPC, (ii) if an SPC elects not to exercise such option or otherwise fails to provide all or any part of Defaultsuch Advance, the Granting Lender shall be obligated to make such Advance pursuant to the terms hereof, and (iii) the rights of any such SPC shall be derivative of the rights of the Granting Lender. Each SPC shall be conclusively presumed to have made arrangements with its Granting Lender for the exercise of voting and other rights hereunder in a manner which is acceptable to the SPC, and the Administrative Agent, the other Creditors and each Lender other Party shall be entitled to assign rely upon and deal solely with the Granting Lender with respect to Advances made by or through its rights SPC. The making of an Advance by an SPC hereunder shall utilize the Pro Rata Share of the relevant Commitment of the Granting Lender to the same extent, and under as if, such Advance were made by the Loan Documents, Granting Lender. Each party hereto hereby agrees that no SPC shall be liable for any indemnity or grant participation interests in its rights similar payment obligation under this Agreement (all liability for which shall remain with the related Granting Lender). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the Loan Documentspayment in full of all outstanding senior indebtedness of any SPC, to it will not institute against, or join any Personother person in instituting against, in whole such SPC any bankruptcy, reorganization, arrangement, insolvency or in liquidation proceedings or similar proceedings under the laws of the United States or any part State thereof, provided that the Granting Lender for each SPC hereby agrees to indemnify, save, and hold harmless each other party hereto for any loss, cost, damage and expense arising out of their inability to institute any such proceeding against its SPC. In addition, notwithstanding any provisions contained herein (including those set forth in subsection (b) above) or in any other Loan Document anything to the contrarycontrary contained in this Section, except that, other than any SPC may (i) assignments by with notice to, but without the prior written consent of, the Borrower or the Administrative Agent and without paying any processing fee therefor, assign all or a Lender portion of its interests in any Advance to an Affiliate of such its Granting Lender or to another any financial institutions providing liquidity and/or credit facilities to or for the account of such SPC to fund the Advances made by such SPC or to support the securities (if any) issued by such SPC to fund such Loans (but nothing contained herein shall be construed in derogation of the obligation of the Granting Lender to make Advances hereunder), provided that neither the consent of the SPC or of any such assignee shall be required for amendments or waivers of provisions of the Loan Documents except for those amendments or waivers for which the consent of participants is required under Section 13.8(e)(vi), and (ii) pledges described in the last sentence disclose on a confidential basis any non-public information relating to its Loans to any rating agency, commercial paper dealer or provider of subsection (a) abovea surety, no assignment shall be made without the approval of the Administrative Agentguarantee or credit or liquidity enhancement to such SPC.
Appears in 2 contracts
Samples: Loan Agreement (Mohegan Tribal Gaming Authority), Loan Agreement (Mohegan Tribal Gaming Authority)
Binding Effect; Assignment. (a) This Agreement and the other Loan Documents to which Borrower is a Party will be binding upon and inure to the benefit of Borrower, the Administrative Agent, the Collateral Agent, each of the Lenders, and their respective successors and assigns, except that Borrower may not assign its rights hereunder or thereunder or any interest herein or therein without the prior written consent of all the Lenders. Each Lender represents that it is not acquiring its Note with a view to the distribution thereof within the meaning of the Securities Act of 1933, as amended (subject to any requirement that disposition of such Note must be within the control of such Lender). Any Lender may at any time pledge its Note or any other instrument evidencing its rights as a Lender under this Agreement to a Federal Reserve Bank, but no such pledge shall release that Lender from its obligations hereunder or grant to such Federal Reserve Bank the rights of a Lender hereunder absent foreclosure of such pledge.
(b) From time to time following the Closing Date, each Lender may assign to one or more Eligible Assignees all or any portion of its rights and obligations under this Agreement (including all or a portion Pro Rata Share of its Commitment, the Advances owing to it and the Note or Notes held by it)Commitments; provided that, subject to subsection (f) below, that (i) such Eligible Assignee, if not then a Lender or an Affiliate of the assigning Lender, shall be approved by the Administrative Agent and the Issuing Lender and (if no Event of Default then exists) Borrower (neither of which approvals shall be unreasonably withheld or delayed), (ii) such assignment shall be evidenced by an a Commitment Assignment and Acceptance, a copy of which shall be furnished to the Administrative Agent as hereinbelow provided, (iii) except in the case of an assignment to an Affiliate of the assigning Lender, to another Lender or of the entire remaining rights and obligations Commitments of the assigning Lender under this AgreementLender, the assignment shall not assign a portion Pro Rata Share of such assigning Lender’s the Commitments and/or Advances owing to such assigning Lender that is equivalent to less than $3,000,000, 5,000,000 and (iv) the effective date of any such assignment shall be as specified in the Commitment Assignment and Acceptance, but not earlier than the date which is five (5) Banking Days after the date the Administrative Agent has received the Commitment Assignment and Acceptance. Upon the effective date of such Commitment Assignment and Acceptance, the Eligible Assignee named therein shall be a Lender for all purposes of this Agreement, with the Pro Rata Share of the Commitments and/or Advances therein set forth and, to the extent of such Commitments and/or AdvancesPro Rata Share, the assigning Lender shall be released from its further obligations under this Agreement. Borrower agrees that it shall execute and deliver (against delivery by the assigning Lender to Borrower of such Lender’s its Notes) to such assignee Lender, Notes evidencing that assignee Lender’s Commitments and/or AdvancesPro Rata Share of the Commitments, and to the assigning Lender, Notes evidencing the remaining balance of the Commitments and/or Advances Pro Rata Share retained by the assigning Lender.
(c) By executing and delivering an a Commitment Assignment and Acceptance, the Eligible Assignee thereunder acknowledges and agrees that: (i) other than the representation and warranty that it is the legal and beneficial owner of the rights and obligations hereunder Pro Rata Share of the Commitments being assigned thereby free and clear of any adverse claim, the assigning Lender has made 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 or sufficiency of this Agreement or any other Loan Document; (ii) the assigning Lender has made no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance by Borrower of the Obligations; (iii) it has received a copy of this Agreement, together with copies of the most recent financial statements delivered pursuant to Section 7.1 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Commitment Assignment and Acceptance; (iv) it will, independently and without reliance upon the Administrative Agent, the Collateral Agent or any Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) it appoints and authorizes the Administrative Agent and the Collateral Agent to take such action and to exercise such powers under this Agreement as are delegated to the Administrative Agent and the Collateral Agent by this Agreement; and (vi) 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.
(d) The Administrative Agent shall maintain at the Administrative Agent’s Office a copy of each Commitment Assignment and Acceptance delivered to it and a register (the “Register”) of the names and address of each of the Lenders and the Pro Rata Share of the Commitments held by each Lender, giving effect to each Commitment Assignment and Acceptance. The Register shall be available during normal business hours for inspection by Borrower or any Lender upon reasonable prior notice to the Administrative Agent. After receipt of a completed Commitment Assignment and Acceptance executed by any Lender and an Eligible Assignee, and receipt of an assignment fee of $3,500 from such Lender or Eligible Assignee, the Administrative Agent shall, promptly following the effective date thereof, provide to Borrower and the Lenders a revised Schedule 1.1 giving effect thereto. Borrower, the Administrative Agent, the Collateral Agent and the Lenders shall deem and treat the Persons listed as Lenders in the Register as the holders and owners of the Pro Rata Shares Share of the Revolving Facility Commitments listed therein for all purposes hereof, and no assignment or transfer of any Lender’s rights and obligations hereunder such Pro Rata Share of the Commitments shall be effective, in each case unless and until an a Commitment Assignment and Acceptance effecting the assignment or transfer thereof shall have been accepted by the Administrative Agent and recorded in the Register as provided above. Prior to such recordation, all amounts owed with respect to the applicable Pro Rata Share of the Revolving Facility Commitments shall be owed to the Lender listed in the Register as the owner thereof, and any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is listed in the Register as a Lender shall be conclusive and binding on any subsequent holder, assignee or transferee of the corresponding Pro Rata Share of the Revolving FacilityCommitments.
(e) Each Lender may from time to time grant participations to one or more banks or other financial institutions in or to all or a portion of its rights and/or obligations under this AgreementPro Rata Share of the Commitments; provided, however, that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) the participating banks or other financial institutions shall not be a Lender hereunder for any purpose except, if the participation agreement so provides, for the purposes of Sections 3.53.6, 3.63.7, 11.11 and 11.21 11.22 but only to the extent that the cost of such benefits to Borrower does not exceed the cost which Borrower would have incurred in respect of the such Lender granting such participation absent the participation, (iv) Borrower, the Administrative Agent Agent, the Collateral Agent, and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement, (v) the participation interest shall be expressed as a percentage of the granting Lender’s Pro Rata Share of the Revolving Facility Commitments as it then exists and shall not restrict an increase in the Revolving Facility (or the aggregate Commitments pertaining thereto)Commitments, or in the granting Lender’s rights and obligations hereunderPro Rata Share of the Commitments, so long as the amount of the participation interest is not affected thereby thereby, (vi) the holder of the participation interest shall abide by the confidentiality provisions set forth herein and (vivii) the consent of the holder of such participation interest shall not be required for amendments or waivers of provisions of the Loan Documents other than those which (Aa) extend any Amortization Date, any applicable the Revolving Loan Maturity Date or any other date upon which any payment of money is due to the Lenders, (Bb) reduce the rate of interest on the Notes, any fee or any other monetary amount payable to the Lenders, (Cc) reduce the amount of any installment of principal due under the Notes, or (Dd) release any Guarantor Subsidiary Guaranty, or (E) release all or substantially all of the Collateral from the Lien of the Collateral Documents, except if such release of Collateral occurs in connection with a Disposition permitted under Section 6.2 or grant of a purchase-money Lien of the type specified in clause (s) of the definition of “Permitted Encumbrances” (unless the holder of such Lien does not prohibit a subordinate Lien on the acquired property or assets, in which case the Collateral Agent shall subordinate its Guaranty.
(f) Borrower agrees that upon Lien on such acquired property or assets in a manner acceptable to the occurrence and during holder of the continuance purchase-money Lien without the need for the consent of any Event of Default, each Lender shall be entitled to assign its rights hereunder and under the Loan Documents, or grant participation interests in its rights under this Agreement and the Loan Documents, to any PersonLender), in whole which case such release shall not require the consent of any of the Lenders or in of any part thereof, notwithstanding any provisions contained herein (including those set forth in subsection (b) above) or in any other Loan Document to the contrary, except that, other than (i) assignments by holder of a Lender to an Affiliate of such Lender or to another Lender or (ii) pledges described participation interest in the last sentence of subsection (a) above, no assignment shall be made without the approval of the Administrative AgentCommitments.
Appears in 2 contracts
Samples: Revolving Loan Agreement (Viasat Inc), Revolving Loan Agreement (Viasat Inc)
Binding Effect; Assignment. (a) This Agreement and the other Loan Documents to which Borrower is a Party will be binding upon and inure to the benefit of Borrower, the Administrative Agent, each of the Lenders, Parties and their respective successors and permitted assigns. Nothing in this Agreement will create or be deemed to create any third party beneficiary rights in any person or entity not a party to this Agreement. No assignment of this Agreement or of any rights or obligations hereunder may be made by any Party, except that Borrower may not assign its rights hereunder directly or thereunder indirectly (by operation of Law or any interest herein or therein otherwise), without the prior written consent of all the Lenders. Each Lender represents that it is not acquiring its Note with a view to the distribution thereof within the meaning of the Securities Act of 1933, as amended (subject to any requirement that disposition of such Note must be within the control of such Lender). Any Lender may at any time pledge its Note or any other instrument evidencing its rights as a Lender under this Agreement to a Federal Reserve Bank, but no such pledge shall release that Lender from its obligations hereunder or grant to such Federal Reserve Bank the rights of a Lender hereunder absent foreclosure of such pledge.
(b) From time to time following the Closing Date, each Lender may assign to one or more Eligible Assignees all or any portion of its rights and obligations under this Agreement (including all or a portion of its Commitment, the Advances owing to it and the Note or Notes held by it); provided that, subject to subsection (f) below, (i) such Eligible Assignee, if not then a Lender or an Affiliate of the assigning Lender, shall be approved by the Administrative Agent and Borrower (neither of which approvals shall be unreasonably withheld or delayed), (ii) such assignment shall be evidenced by an Assignment and Acceptance, a copy of which shall be furnished to the Administrative Agent as hereinbelow provided, (iii) except in the case of an assignment to an Affiliate of the assigning Lender, to another Lender or of the entire remaining rights and obligations of the assigning Lender under this Agreement, the assignment shall not assign a portion of such assigning Lender’s Commitments and/or Advances owing to such assigning Lender that is equivalent to less than $3,000,000, and (iv) the effective date of any such assignment shall be as specified in the Assignment and Acceptance, but not earlier than the date which is five (5) Banking Days after the date the Administrative Agent has received the Assignment and Acceptance. Upon the effective date of such Assignment and Acceptance, the Eligible Assignee named therein shall be a Lender for all purposes of this Agreement, with the Commitments and/or Advances therein set forth and, to the extent of such Commitments and/or Advances, the assigning Lender shall be released from its further obligations under this Agreement. Borrower agrees that it shall execute and deliver (against delivery by the assigning Lender to Borrower of such Lender’s Notes) to such assignee Lender, Notes evidencing that assignee Lender’s Commitments and/or Advances, and to the assigning Lender, Notes evidencing the remaining balance of the Commitments and/or Advances retained by the assigning Lender.
(c) By executing and delivering an Assignment and Acceptance, the Eligible Assignee thereunder acknowledges and agrees that: (i) other than the representation and warranty that it is the legal and beneficial owner of the rights and obligations hereunder being assigned thereby free and clear of any adverse claim, the assigning Lender has made 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 or sufficiency of this Agreement or any other Loan Document; (ii) the assigning Lender has made no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance by Borrower of the Obligations; (iii) it has received a copy of this Agreement, together with copies of the most recent financial statements delivered pursuant to Section 7.1 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) it will, independently and without reliance upon the Administrative Agent or any Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) it appoints and authorizes the Administrative Agent to take such action and to exercise such powers under this Agreement as are delegated to the Administrative Agent by this Agreement; and (vi) 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.
(d) The Administrative Agent shall maintain at the Administrative Agent’s Office a copy of each Assignment and Acceptance delivered to it and a register (the “Register”) of the names and address of each of the Lenders and the Pro Rata Share of the Commitments held by each Lender, giving effect to each Assignment and Acceptance. The Register shall be available during normal business hours for inspection by Borrower or any Lender upon reasonable prior notice to the Administrative Agent. After receipt of a completed Assignment and Acceptance executed by any Lender and an Eligible Assignee, and receipt of an assignment fee of $3,500 from such Lender or Eligible Assignee, the Administrative Agent shall, promptly following the effective date thereof, provide to Borrower and the Lenders a revised Schedule 1.1 giving effect thereto. Borrower, the Administrative Agent and the Lenders shall deem and treat the Persons listed as Lenders in the Register as the holders and owners of the Pro Rata Shares of the Revolving Facility listed therein for all purposes hereof, and no assignment or transfer of any Lender’s rights and obligations hereunder shall be effective, in each case unless and until an Assignment and Acceptance effecting the assignment or transfer thereof shall have been accepted by the Administrative Agent and recorded in the Register as provided above. Prior to such recordation, all amounts owed with respect to the applicable Pro Rata Share of the Revolving Facility shall be owed to the Lender listed in the Register as the owner thereof, Party and any requestattempted assignment without the required consents will be void, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is listed in the Register as a Lender shall be conclusive and binding on any subsequent holder, assignee or transferee of the corresponding Pro Rata Share of the Revolving Facility.
(e) Each Lender may from time to time grant participations to one or more banks or other financial institutions in or to all or a portion of its rights and/or obligations under this Agreement; provided, however, that (ia) the Debtors may assign some or all of their rights or delegate some or all of their obligations hereunder to successor entities (including one or more reorganized Debtors) pursuant to a plan of reorganization confirmed by the Bankruptcy Court, provided that any such Lender’s entity must provide to Purchaser evidence of adequate assurance of future performance as if this Agreement was being assumed and assigned to such entity or entities pursuant to section 365 of the Bankruptcy Code and (b) Purchaser may assign some or all of its rights or delegate some or all of its obligations hereunder to one or more of its Affiliates. No assignment will relieve the assigning Party of any obligation. Upon any permitted assignment, the references in this Agreement to the assigning Party will also apply to any such assignee unless the context otherwise requires. In addition to the foregoing, any entity that constitutes a Debtor Successor (as defined in clause (x) of paragraph 49 of the Sale Order attached hereto), must (x) assume all of the Debtors’ obligations hereunder (and the other Transaction Documents) and (y) prior to the consummation of such transactions and assumption, provide to Purchaser evidence of adequate assurance of future performance as if this Agreement was being assumed and assigned to such entity or entities pursuant to section 365 of the Bankruptcy Code. Any such assumption will not relieve the Debtors of their respective obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to or the other parties hereto for the performance of such obligations, (iii) the participating banks or other financial institutions shall not be a Lender hereunder for any purpose except, if the participation agreement so provides, for the purposes of Sections 3.5, 3.6, 11.11 and 11.21 but only to the extent that the cost of such benefits to Borrower does not exceed the cost which Borrower would have incurred in respect of the Lender granting such participation absent the participation, (iv) Borrower, the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement, (v) the participation interest shall be expressed as a percentage of the granting Lender’s Pro Rata Share of the Revolving Facility as it then exists and shall not restrict an increase in the Revolving Facility (or the aggregate Commitments pertaining thereto), or in the granting Lender’s rights and obligations hereunder, so long as the amount of the participation interest is not affected thereby and (vi) the consent of the holder of such participation interest shall not be required for amendments or waivers of provisions of the Loan Documents other than those which (A) extend any Amortization Date, any applicable Maturity Date or any other date upon which any payment of money is due to the Lenders, (B) reduce the rate of interest on the Notes, any fee or any other monetary amount payable to the Lenders, (C) reduce the amount of any installment of principal due under the Notes, or (D) release any Guarantor from its GuarantyTransaction Documents.
(f) Borrower agrees that upon the occurrence and during the continuance of any Event of Default, each Lender shall be entitled to assign its rights hereunder and under the Loan Documents, or grant participation interests in its rights under this Agreement and the Loan Documents, to any Person, in whole or in any part thereof, notwithstanding any provisions contained herein (including those set forth in subsection (b) above) or in any other Loan Document to the contrary, except that, other than (i) assignments by a Lender to an Affiliate of such Lender or to another Lender or (ii) pledges described in the last sentence of subsection (a) above, no assignment shall be made without the approval of the Administrative Agent.
Appears in 2 contracts
Samples: Purchase and Sale Agreement, Purchase and Sale Agreement (Nii Holdings Inc)
Binding Effect; Assignment. (a) This The rights and obligations of this Agreement and the other Loan Documents to which Borrower is a Party will shall be binding upon on and inure to enforceable by the benefit of Borrower, the Administrative Agent, each of the Lenders, parties hereto and their respective successors and permitted assigns. Except as expressly provided herein, except that Borrower the rights and obligations of this Agreement may not assign its rights hereunder be assigned by Purchaser or thereunder or any interest herein or therein Seller without the express prior written consent of all the Lenders. Each Lender represents other party; provided, that it is not acquiring its Note with a view to the distribution thereof within the meaning of the Securities Act of 1933, as amended (subject to any requirement that disposition of such Note must be within the control of such Lender). Any Lender may at any time pledge its Note or any other instrument evidencing its rights as a Lender under this Agreement to a Federal Reserve Bank, but no such pledge shall release that Lender from its obligations hereunder or grant to such Federal Reserve Bank the rights of a Lender hereunder absent foreclosure of such pledge.
(ba) From time to time following the Closing Date, each Lender Purchaser may assign to one any or more Eligible Assignees all or any portion of its rights and obligations hereunder to one or more of its Affiliates and (b) Purchaser may assign any or all of its rights and obligations to any Debt Financing Source as collateral in connection with the Debt Financing and any such Debt Financing Source may exercise all of the rights and remedies of Purchaser hereunder solely to the extent necessary to enforce its security interest in such rights and obligations granted by Purchaser to such Debt Financing Source as collateral, in each case, without prior written consent of Seller. Nothing in this Agreement, expressed or implied, is intended or shall be construed to confer upon Person other than the parties hereto and their respective successors and permitted assigns any rights, remedies, obligations or liabilities under or by reason of this Agreement, except as expressly provided in this Agreement (including all or a portion of its CommitmentSection 10.14) and other than Article IX, the Advances owing to it Section 10.3, this Section 10.5, Section 10.7, Section 10.8, Section 10.10 and the Note or Notes held by it); provided thatSection 10.14, subject to subsection (f) below, (i) such Eligible Assignee, if not then a Lender or an Affiliate of the assigning Lender, shall be approved by the Administrative Agent and Borrower (neither of which approvals shall be unreasonably withheld or delayed), (ii) such assignment shall be evidenced by an Assignment and Acceptance, a copy of which shall be furnished for the benefit of the Debt Financing Sources and their respective current, former or future directors, officers, general or limited partners, stockholders, members, managers, controlling persons, affiliates, employees, consultants, agents, financial advisors, attorneys, accountants or other representatives (it being understood that such provisions and related definitions may not be amended in a manner adverse to the Administrative Agent as hereinbelow provided, (iii) except in the case of an assignment to an Affiliate of the assigning Lender, to another Lender or of the entire remaining rights and obligations of the assigning Lender under this Agreement, the assignment Debt Financing Sources without their prior written consent). Seller shall not assign a portion of such assigning Lender’s Commitments and/or Advances owing to such assigning Lender ensure that is equivalent to less than $3,000,000, and (iv) the effective date of any such assignment shall be as specified in the Assignment and Acceptance, but not earlier than the date which is five (5) Banking Days after the date the Administrative Agent has received the Assignment and Acceptance. Upon the effective date of such Assignment and Acceptance, the Eligible Assignee named therein shall be a Lender for all purposes of this Agreement, with the Commitments and/or Advances therein set forth and, to the extent of such Commitments and/or Advances, the assigning Lender shall be released from its further obligations under this Agreement. Borrower agrees that it shall execute and deliver (against delivery by the assigning Lender to Borrower of such Lender’s Notes) to such assignee Lender, Notes evidencing that assignee Lender’s Commitments and/or Advances, and to the assigning Lender, Notes evidencing the remaining balance of the Commitments and/or Advances retained by the assigning Lender.
(c) By executing and delivering an Assignment and Acceptance, the Eligible Assignee thereunder acknowledges and agrees that: (i) other than the representation and warranty that it is the legal and beneficial owner of the rights and obligations hereunder being assigned thereby free and clear of any adverse claim, the assigning Lender has made 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 or sufficiency of this Agreement or any other Loan Document; (ii) the assigning Lender has made no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance by Borrower of the Obligations; (iii) it has received a copy of this Agreement, together with copies of the most recent financial statements delivered pursuant to Section 7.1 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) it will, independently and without reliance upon the Administrative Agent or any Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) it appoints and authorizes the Administrative Agent to take such action and to exercise such powers under this Agreement as are delegated to the Administrative Agent by this Agreement; and (vi) 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.
(d) The Administrative Agent shall maintain at the Administrative Agent’s Office a copy of each Assignment and Acceptance delivered to it and a register (the “Register”) of the names and address of each of the Lenders and the Pro Rata Share of the Commitments held by each Lender, giving effect to each Assignment and Acceptance. The Register shall be available during normal business hours for inspection by Borrower or any Lender upon reasonable prior notice to the Administrative Agent. After receipt of a completed Assignment and Acceptance executed by any Lender and an Eligible Assignee, and receipt of an assignment fee of $3,500 from such Lender or Eligible Assignee, the Administrative Agent shall, promptly following the effective date thereof, provide to Borrower and the Lenders a revised Schedule 1.1 giving effect thereto. Borrower, the Administrative Agent and the Lenders shall deem and treat the Persons listed as Lenders in the Register as the holders and owners of the Pro Rata Shares of the Revolving Facility listed therein for all purposes hereof, and no assignment or transfer of any Lender’s rights and obligations hereunder shall be effective, in each case unless and until an Assignment and Acceptance effecting the assignment or transfer thereof shall have been accepted by the Administrative Agent and recorded in the Register as provided above. Prior to such recordation, all amounts owed with respect to the applicable Pro Rata Share of the Revolving Facility shall be owed to the Lender listed in the Register as the owner thereof, and any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is listed in the Register as a Lender shall be conclusive and binding on any subsequent holder, assignee or transferee of the corresponding Pro Rata Share of the Revolving Facility.
(e) Each Lender may from time to time grant participations to one or more banks or other financial institutions in or to all or a portion of its rights and/or obligations under this Agreement; provided, however, that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) the participating banks or other financial institutions shall not be a Lender hereunder for any purpose except, if the participation agreement so provides, for the purposes of Sections 3.5, 3.6, 11.11 and 11.21 but only to the extent that the cost of such benefits to Borrower does not exceed the cost which Borrower would have incurred in respect of the Lender granting such participation absent the participation, (iv) Borrower, the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement, including Article VII, Article VIII and Section 2.8, are assumed either expressly or by operation of Law, by a surviving or acquiring person in connection with (vx) the participation interest shall be expressed as a percentage sale or transfer of all or substantially all of the granting Lender’s Pro Rata Share assets of Seller or (y) a merger, consolidation or other transaction which results in any Person or “group” (within the meaning of Section 13(d)(3) of the Revolving Facility as it then exists and shall not restrict an increase in the Revolving Facility (Exchange Act) acquiring beneficial ownership, directly or the aggregate Commitments pertaining thereto)indirectly, or in the granting Lender’s rights and obligations hereunder, so long as the amount of a majority of the participation interest is not affected thereby then issued and (vi) the consent outstanding capital stock of the holder of such participation interest shall not be required for amendments or waivers of provisions of the Loan Documents other than those which (A) extend any Amortization Date, any applicable Maturity Date or any other date upon which any payment of money is due to the Lenders, (B) reduce the rate of interest on the Notes, any fee or any other monetary amount payable to the Lenders, (C) reduce the amount of any installment of principal due under the Notes, or (D) release any Guarantor from its GuarantySeller.
(f) Borrower agrees that upon the occurrence and during the continuance of any Event of Default, each Lender shall be entitled to assign its rights hereunder and under the Loan Documents, or grant participation interests in its rights under this Agreement and the Loan Documents, to any Person, in whole or in any part thereof, notwithstanding any provisions contained herein (including those set forth in subsection (b) above) or in any other Loan Document to the contrary, except that, other than (i) assignments by a Lender to an Affiliate of such Lender or to another Lender or (ii) pledges described in the last sentence of subsection (a) above, no assignment shall be made without the approval of the Administrative Agent.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Amaya Inc.), Stock Purchase Agreement (AP Gaming Holdco, Inc.)
Binding Effect; Assignment. (a) This Agreement shall become effective when it shall have been executed by the Borrower and the other Loan Documents to which Borrower is a Party will Administrative Agent and when the Administrative Agent shall have been notified by each Bank that such Bank has executed it and thereafter shall be binding upon and inure to the benefit of the Borrower, the Administrative Agent, Agent and each of the Lenders, Bank and their respective successors and assigns, except that the Borrower may shall not have the right to assign its rights hereunder or thereunder or any interest herein or therein without the prior written consent of all the Lenders. Each Lender represents that it is not acquiring its Note with a view to the distribution thereof within the meaning of the Securities Act of 1933, as amended (subject to any requirement that disposition of such Note must be within the control of such Lender). Any Lender may at any time pledge its Note or any other instrument evidencing its rights as a Lender under this Agreement to a Federal Reserve Bank, but no such pledge shall release that Lender from its obligations hereunder or grant to such Federal Reserve Bank the rights of a Lender hereunder absent foreclosure of such pledgeBanks.
(b) From time Any Bank may assign, participate or otherwise transfer all or any part of, or interest in, such Bank’s rights and obligations hereunder and under the Notes issued to time following the Closing Date, each Lender may assign it hereunder to one or more Eligible Assignees banks or other entities (excluding natural persons); provided that (i) in the case of any assignment or other transfer (other than a participation) to a Person that is not a Bank, an Affiliate of a Bank or an Approved Fund, the Borrower (except during the continuance of an Event of Default), the Issuing Banks, the Swingline Banks and the Administrative Agent, in each case whose consent shall not be unreasonably withheld or delayed, shall have expressly agreed in writing; provided that a material increase in counterparty risk shall be reasonable grounds (although not exclusive grounds) for the withholding of such consent; and further provided that the Borrower shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to the Administrative Agent within ten (10) Business Days after having received notice thereof; (ii) in the case of any assignment in part, the amount of the Commitment being assigned pursuant to such assignment shall in no event be less than $5,000,000 (or a lesser amount approved by the Administrative Agent and, except during the continuance of an Event of Default, the Borrower); and (iii) any participation shall be in compliance with Section 11.06(f). Upon the effectiveness of any such assignment (but not in the event of any such participation or other transfer), such assignee shall be a Bank hereunder and shall have all the rights and benefits thereof. However, unless and until the conditions for the Administrative Agent’s treating such assignee as holder pursuant to clause (c) below shall have been satisfied, such assignee shall not be entitled to exercise the rights of a Bank under this Agreement and the Administrative Agent shall not be obligated to make payment of any amount to which such assignee may become entitled hereunder other than to the Bank which assigned its rights to such assignee. Nothing contained herein shall impair the ability of any Bank, in its discretion, to agree, solely as between itself and its assignees, participants and other transferees, upon the manner in which such Bank shall exercise its rights under this Agreement and the Notes made to such Bank. The assignee, if it shall not already be a Bank, shall deliver to the Administrative Agent an Administrative Questionnaire in which the assignee designates one or more credit contacts to whom all syndicate-level information (which may contain material non-public information about the Borrower and its affiliates and their Related Parties or their respective securities) will be made available and who may receive such information in accordance with the assignee’s compliance procedures and applicable laws, including Federal and state securities laws.
(c) In order to effect any assignment permitted hereunder by a Bank of all or any portion of its Commitment hereunder, the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register (as defined below), an agreement substantially in the form of Exhibit 11.06 hereto (an “Assignment and Acceptance”), together with any Note or Notes subject to such assignment and a processing and recordation fee of $3,500 payable by the assignor or assignee. Upon such execution, delivery, acceptance and recording and delivery to the Administrative Agent of such assignee’s Administrative Questionnaire, from and after the effective date specified in each Assignment and Acceptance, (x) the assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, have the rights and obligations of a Bank hereunder and (y) the Bank assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights 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 Bank’s rights and obligations under this Agreement (including all or Agreement, such Bank shall cease to be a portion of its Commitment, the Advances owing party hereto but shall continue to it and the Note or Notes held by it); provided that, subject to subsection (f) below, (i) such Eligible Assignee, if not then a Lender or an Affiliate of the assigning Lender, shall be approved by the Administrative Agent and Borrower (neither of which approvals shall be unreasonably withheld or delayed), (ii) such assignment shall be evidenced by an Assignment and Acceptance, a copy of which shall be furnished entitled to the Administrative Agent as hereinbelow providedbenefits of Sections 5.13, (iii) except in the case of an assignment to an Affiliate of the assigning Lender, to another Lender 5.15 and 11.04 for any events or of the entire remaining rights and obligations of the assigning Lender under this Agreement, the assignment shall not assign a portion of such assigning Lender’s Commitments and/or Advances owing to such assigning Lender that is equivalent to less than $3,000,000, and (iv) circumstances occurring or existing before the effective date of any such assignment shall be as specified in the Assignment and Acceptance, but not earlier than the date which is five (5) Banking Days after the date the Administrative Agent has received the Assignment and Acceptance. Upon the effective date of such Assignment and Acceptance, the Eligible Assignee named therein shall be a Lender for all purposes of this Agreement, with the Commitments and/or Advances therein set forth and, to the extent of such Commitments and/or Advances, the assigning Lender shall be released from its further obligations under this Agreement. Borrower agrees that it shall execute and deliver (against delivery by the assigning Lender to Borrower of such Lender’s Notes) to such assignee Lender, Notes evidencing that assignee Lender’s Commitments and/or Advances, and to the assigning Lender, Notes evidencing the remaining balance of the Commitments and/or Advances retained by the assigning Lenderassignment).
(cd) By executing and delivering an Assignment and Acceptance, the Eligible Assignee Bank assignor thereunder acknowledges and agrees thatthe assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than the representation as provided in such Assignment and warranty that it is the legal and beneficial owner of the rights and obligations hereunder being assigned thereby free and clear of any adverse claimAcceptance, the such assigning Lender has made Bank makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness genuineness, sufficiency or sufficiency value of this Agreement or any other Loan Documentinstrument or document furnished pursuant hereto; (ii) the such assigning Lender has made Bank makes no representation or warranty and assumes no responsibility with respect to the financial condition of the Borrower or the performance or observance by the Borrower of the Obligationsany of its obligations under this Agreement or any other instrument or document furnished pursuant hereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the most recent financial statements referred to in Section 7.01(f) (and any later statements delivered pursuant to Section 7.1 8.01(f)(ii)) 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) it such assignee will, independently and without reliance upon the Administrative Agent Agent, such assigning Bank or any Lender other Bank and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) it 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 as are delegated to the Administrative Agent by this Agreementthe 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 LenderBank.
(de) The Administrative Agent Agent, acting solely for this purpose as a non-fiduciary agent of the Borrower, shall maintain at the Administrative Agent’s Office its address referred to in Section 11.02 a copy of each Assignment and Acceptance delivered to and accepted by it and a register for the recordation of the names and addresses of the Banks and the Commitment of, and principal amount (and stated interest on) of the Advances owing to, each Bank from time to time (the “Register”) of the names and address of each of the Lenders and the Pro Rata Share of the Commitments held by each Lender, giving effect to each Assignment and Acceptance). The entries in the Register shall be available during normal business hours conclusive and binding for inspection by Borrower or any Lender upon reasonable prior notice to the Administrative Agent. After receipt of a completed Assignment and Acceptance executed by any Lender and an Eligible Assigneeall purposes, absent manifest error, and receipt of an assignment fee of $3,500 from such Lender or Eligible Assignee, the Administrative Agent shall, promptly following the effective date thereof, provide to Borrower and the Lenders a revised Schedule 1.1 giving effect thereto. Borrower, the Administrative Agent and the Lenders Banks shall deem and treat the Persons listed as Lenders in the Register as the holders and owners of the Pro Rata Shares of the Revolving Facility listed therein for all purposes hereof, and no assignment or transfer of any Lender’s rights and obligations hereunder shall be effective, in each case unless and until an Assignment and Acceptance effecting the assignment or transfer thereof shall have been accepted by the Administrative Agent and Person whose name is recorded in the Register as provided abovea Bank hereunder for all purposes of this Agreement. Prior to such recordation, all amounts owed with respect to the applicable Pro Rata Share of the Revolving Facility The Register shall be owed to available for inspection by the Lender listed in the Register as the owner thereof, Borrower or any Bank at any reasonable time and any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is listed in the Register as a Lender shall be conclusive and binding on any subsequent holder, assignee or transferee of the corresponding Pro Rata Share of the Revolving Facility.
(e) Each Lender may from time to time grant upon reasonable prior notice.
(f) Any Bank may, without the consent of the Borrower, the Administrative Agent, the Issuing Banks or the Swingline Banks (but with notice to the Borrower, unless such participation is sold to an Affiliate of such Bank), sell to any Person (other than a natural Person, a Defaulting Bank or the Borrower or any of the Borrower’s Affiliates or Subsidiaries) (each, a “Participant”) participations to one in all or more banks or other financial institutions in or to a portion of such Bank’s rights and/or obligations under this Agreement (including all or a portion of its rights Commitment and/or obligations under this Agreementthe Advances (including such Bank’s participations in Swingline Loans) owing to it); provided, however, provided that (i) such LenderBank’s obligations under this Agreement shall remain unchanged, (ii) such Lender Bank shall remain solely responsible to the other parties hereto for the performance of such obligations, obligations and (iii) the participating banks or other financial institutions shall not be a Lender hereunder for any purpose except, if the participation agreement so provides, for the purposes of Sections 3.5, 3.6, 11.11 and 11.21 but only to the extent that the cost of such benefits to Borrower does not exceed the cost which Borrower would have incurred in respect of the Lender granting such participation absent the participation, (iv) Borrower, the Administrative Agent and the other Lenders Banks shall continue to deal solely and directly with such Lender Bank in connection with such LenderBank’s rights and obligations under this Agreement. For the avoidance of doubt, (v) the participation interest each Bank shall be expressed as responsible for the indemnity under Section 10.05 without regard to the existence of any participation. Any agreement or instrument pursuant to which a percentage Bank sells such a participation shall provide that such Bank shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of the granting Lender’s Pro Rata Share any provision of the Revolving Facility as it then exists and shall not restrict an increase in the Revolving Facility (this Agreement; provided that such agreement or the aggregate Commitments pertaining thereto)instrument may provide that such Bank will not, or in the granting Lender’s rights and obligations hereunder, so long as the amount of the participation interest is not affected thereby and (vi) without the consent of the holder Participant, agree to any amendment, waiver or other modification described in the third sentence of Section 11.01 that affects such participation interest shall not be required for amendments or waivers of provisions of the Loan Documents other than those which (A) extend any Amortization Date, any applicable Maturity Date or any other date upon which any payment of money is due to the Lenders, (B) reduce the rate of interest on the Notes, any fee or any other monetary amount payable to the Lenders, (C) reduce the amount of any installment of principal due under the Notes, or (D) release any Guarantor from its Guaranty.
(f) Participant. The Borrower agrees that upon the occurrence and during the continuance of any Event of Default, each Lender Participant shall be entitled to assign the benefits of Sections 5.13 and 5.15 to the same extent as if it were a Bank and had acquired its rights hereunder interest by assignment pursuant to this Section (it being understood that the documentation required under Section 5.15(f) shall be delivered to the Borrower and Administrative Agent) to the same extent as if it were a Bank and had acquired its interest by assignment; provided that such Participant (A) agrees to be subject to the provisions of Section 5.18 and of the last sentence of Section 5.11 as it if were an assignee under paragraph (b) of this Section; and (B) shall not be entitled to receive any greater payment under Sections 5.13 or 5.15 with respect to any participation, than the Loan DocumentsBank from whom it acquired the applicable participation would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation. Each Bank that sells participation agrees, at the Borrower’s request and expense, to use reasonable efforts to cooperate with the Borrower to effectuate the provisions of Section 5.18 with respect to any Participant. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 11.05 as though it were a Bank; provided that such Participant agrees to be subject to Section 5.17 as though it were a Bank. Each Bank that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Advances or grant participation interests other obligations under this Agreement or any Note (the “Participant Register”); provided that no Bank shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans or its other obligations under this Agreement or any Note) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Bank shall treat each Person whose name is recorded in the Participant Register as the owner of such participations for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its rights capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
(g) Notwithstanding anything contained herein to the contrary, each Bank may pledge its right, title and interest under this Agreement and any Note made to it to the Loan DocumentsBoard of Governors of the Federal Reserve System, to any Person, in whole or in any part thereof, notwithstanding any provisions contained herein (including those set forth in subsection (b) above) or in any other Loan Document Governmental Authority, as security for financial accommodations or privileges being provided or extended to the contrary, except that, other than (i) assignments such Bank by a Lender to an Affiliate of such Lender or to another Lender or (ii) pledges described in the last sentence of subsection (a) above, no assignment shall be made without the approval of the Administrative AgentGovernmental Authority.
Appears in 2 contracts
Samples: Credit Agreement (Baxter International Inc), Credit Agreement (Baxalta Inc)
Binding Effect; Assignment. (a) This Agreement and the other Loan Documents to which Borrower is a Party will shall be binding upon Purchaser and, subject to the terms of the Bidding Procedures Order and the Canadian Bidding Procedures Recognition Order (in each case, with respect to the matters covered thereby) and the entry and terms of the Sale Order and the Canadian Sale Recognition Order, Sellers, and shall inure to the benefit of Borrower, and be so binding on the Administrative Agent, each of the Lenders, Parties and their respective successors and permitted assigns, except that Borrower may not assign its rights hereunder including any trustee or thereunder estate representative appointed in the Bankruptcy Cases or any interest herein successor Chapter 7 cases or therein any trustee, receiver, or monitor appointed in any Canadian bankruptcy, proposal, receivership or CCAA proceedings in respect of any Seller, including within the Canadian Recognition Proceedings; provided that, subject to Section 10.4(b), neither this Agreement nor any of the rights or obligations hereunder may be assigned or delegated without the prior written consent of all the Lenders. Each Lender represents Purchaser and Yellow, and any attempted assignment or delegation without such prior written consent shall be null and void; provided further that it is not acquiring its Note with a view to the distribution thereof within the meaning of the Securities Act of 1933, as amended Purchaser (subject to any requirement that disposition of such Note must be within the control of such Lender). Any Lender may at any time pledge its Note or any other instrument evidencing its rights as a Lender under this Agreement to a Federal Reserve Bank, but no such pledge shall release that Lender from Purchaser remaining liable for its obligations hereunder in the event such obligations are not performed in accordance with their terms) may assign any of its rights or grant obligations hereunder to such Federal Reserve Bank any of its Affiliates without the rights consent of a Lender hereunder absent foreclosure of such pledgeany Person.
(b) From time to At any time following entry of the Sale Order and prior to the Closing, Purchaser shall be entitled to designate, by written notice to Sellers, one or more Affiliates to (i) purchase the Acquired Assets and pay the corresponding Purchase Price amount or (ii) assume the Assumed Liabilities (any such Affiliates that shall be designated in accordance with this clause, a “Designated Purchaser”). In addition, and for the avoidance of doubt, a Designated Purchaser shall be entitled to perform any other covenants or agreements of Purchaser under this Agreement. Further notwithstanding anything in this Agreement to the contrary, Purchaser in its sole discretion may, by written notice delivered to Sellers no later than five (5) business days prior to the Closing Date, each Lender may assign designate a Designated Purchaser to one or more Eligible Assignees all or take title to any portion of its rights and obligations under Acquired Real Property. Subject to this paragraph, this Agreement (including all or a portion of its Commitment, the Advances owing to it and the Note or Notes held by it); provided that, subject to subsection (f) below, (i) such Eligible Assignee, if not then a Lender or an Affiliate of the assigning Lender, provisions hereof shall be approved by the Administrative Agent and Borrower (neither of which approvals shall be unreasonably withheld or delayed), (ii) such assignment shall be evidenced by an Assignment and Acceptance, a copy of which shall be furnished to the Administrative Agent as hereinbelow provided, (iii) except in the case of an assignment to an Affiliate of the assigning Lender, to another Lender or of the entire remaining rights and obligations of the assigning Lender under this Agreement, the assignment shall not assign a portion binding upon each of such assigning Lender’s Commitments and/or Advances owing parties, their successors and permitted assigns and Purchaser shall remain primarily liable until the transfer to any such assigning Lender that is equivalent to less than $3,000,000, Designated Purchaser and (iv) the effective date satisfaction by such Designated Purchaser of any such assignment shall be as specified in the Assignment and Acceptance, but not earlier than the date which is five (5) Banking Days after the date the Administrative Agent has received the Assignment and Acceptance. Upon the effective date of such Assignment and Acceptance, the Eligible Assignee named therein shall be a Lender for all purposes of this Agreement, with the Commitments and/or Advances therein set forth and, to the extent of such Commitments and/or Advances, the assigning Lender shall be released from its further related obligations under this Agreement. Borrower agrees that it shall execute and deliver (against delivery by the assigning Lender to Borrower of such Lender’s Notes) to such assignee Lender, Notes evidencing that assignee Lender’s Commitments and/or Advances, and to the assigning Lender, Notes evidencing the remaining balance of the Commitments and/or Advances retained by the assigning Lenderor other Liabilities hereunder.
(c) By executing and delivering an Assignment and Acceptance, the Eligible Assignee thereunder Purchaser acknowledges and agrees that: (i) other than to comply with the representation and warranty that it is the legal and beneficial owner anti-collusion requirements of the rights and obligations hereunder being assigned thereby free and clear of any adverse claim, the assigning Lender has made 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 or sufficiency of this Agreement or any other Loan Document; (ii) the assigning Lender has made no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance by Borrower of the Obligations; (iii) it has received a copy of this Agreement, together with copies of the most recent financial statements delivered pursuant to Section 7.1 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) it will, independently and without reliance upon the Administrative Agent or any Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) it appoints and authorizes the Administrative Agent to take such action and to exercise such powers under this Agreement as are delegated to the Administrative Agent by this Agreement; and (vi) 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.
(d) The Administrative Agent shall maintain at the Administrative Agent’s Office a copy of each Assignment and Acceptance delivered to it and a register (the “Register”) of the names and address of each of the Lenders Bidding Procedures Order and the Pro Rata Share of the Commitments held by each Lender, giving effect to each Assignment and Acceptance. The Register shall be available during normal business hours for inspection by Borrower or any Lender upon reasonable prior notice to the Administrative Agent. After receipt of a completed Assignment and Acceptance executed by any Lender and an Eligible Assignee, and receipt of an assignment fee of $3,500 from such Lender or Eligible Assignee, the Administrative Agent shall, promptly following the effective date thereof, provide to Borrower and the Lenders a revised Schedule 1.1 giving effect thereto. Borrower, the Administrative Agent and the Lenders shall deem and treat the Persons listed as Lenders in the Register as the holders and owners of the Pro Rata Shares of the Revolving Facility listed therein for all purposes hereof, and no assignment or transfer of any Lender’s rights and obligations hereunder shall be effective, in each case unless and until an Assignment and Acceptance effecting the assignment or transfer thereof shall have been accepted by the Administrative Agent and recorded in the Register as provided above. Prior to such recordation, all amounts owed with respect to the applicable Pro Rata Share of the Revolving Facility shall be owed to the Lender listed in the Register as the owner thereof, and any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is listed in the Register as a Lender shall be conclusive and binding on any subsequent holder, assignee or transferee of the corresponding Pro Rata Share of the Revolving FacilityBankruptcy Code.
(e) Each Lender may from time to time grant participations to one or more banks or other financial institutions in or to all or a portion of its rights and/or obligations under this Agreement; provided, however, that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) the participating banks or other financial institutions shall not be a Lender hereunder for any purpose except, if the participation agreement so provides, for the purposes of Sections 3.5, 3.6, 11.11 and 11.21 but only to the extent that the cost of such benefits to Borrower does not exceed the cost which Borrower would have incurred in respect of the Lender granting such participation absent the participation, (iv) Borrower, the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement, (v) the participation interest shall be expressed as a percentage of the granting Lender’s Pro Rata Share of the Revolving Facility as it then exists and shall not restrict an increase in the Revolving Facility (or the aggregate Commitments pertaining thereto), or in the granting Lender’s rights and obligations hereunder, so long as the amount of the participation interest is not affected thereby and (vi) the consent of the holder of such participation interest shall not be required for amendments or waivers of provisions of the Loan Documents other than those which (A) extend any Amortization Date, any applicable Maturity Date or any other date upon which any payment of money is due to the Lenders, (B) reduce the rate of interest on the Notes, any fee or any other monetary amount payable to the Lenders, (C) reduce the amount of any installment of principal due under the Notes, or (D) release any Guarantor from its Guaranty.
(f) Borrower agrees that upon the occurrence and during the continuance of any Event of Default, each Lender shall be entitled to assign its rights hereunder and under the Loan Documents, or grant participation interests in its rights under this Agreement and the Loan Documents, to any Person, in whole or in any part thereof, notwithstanding any provisions contained herein (including those set forth in subsection (b) above) or in any other Loan Document to the contrary, except that, other than (i) assignments by a Lender to an Affiliate of such Lender or to another Lender or (ii) pledges described in the last sentence of subsection (a) above, no assignment shall be made without the approval of the Administrative Agent.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Yellow Corp), Asset Purchase Agreement (Saia Inc)
Binding Effect; Assignment. (a) This Agreement and the other Loan Documents to which Borrower is a Party will shall be binding upon and inure to the benefit of the Borrower, the Guarantor, the Administrative Agent, Agent and each of the LendersLender, and their respective successors and permitted assigns, except that the Borrower may and the Guarantor shall not have the right to assign its rights hereunder or thereunder or any interest herein or therein without the prior written consent of all the Administrative Agent and the Lenders, and any assignment by the Borrower or Guarantor in violation of this Section 10.8 shall be null and void. Each Lender represents that it is not acquiring its Note with a view Notwithstanding anything to the distribution thereof within contrary in the meaning first sentence of the Securities Act of 1933this Section 10.8, as amended (subject to any requirement that disposition of such Note must be within the control of such Lender). Any Lender may at any time pledge its Note time, without the consent of the Administrative Agent, assign all or any other instrument evidencing portion of its rights as a Lender under this Agreement and any Loan Note to a Federal Reserve Bank, but ; provided that no such assignment or pledge shall release that the transferor Lender from its obligations hereunder or grant hereunder. Subject to such Federal Reserve Bank the rights terms of a Lender hereunder absent foreclosure of such pledge.
(b) From time to time following the Closing DateInitial Acknowledgment Agreement and Acknowledgment Agreements, as applicable, each Lender may assign to one or more Eligible Assignees banks or other entities all or any part or portion of, or may grant participations to one or more banks or other entities in all or any part or portion of its rights and obligations under this Agreement hereunder (including all or a portion of its Commitment, the Advances owing to it and the Note its Loan Notes or Notes held by itits Advances); provided that, subject that (A) each party to subsection (f) belowsuch assignment shall execute and deliver an Assignment and Assumption to the Administrative Agent, (iB) shall be to (x) a bank, other financial institution or lender which is reasonably acceptable to the Administrative Agent, or (y) a “qualified institutional buyer”, as defined in Rule 144A under the Securities Act of 1933, as amended, reasonably acceptable to the Administrative Agent, and (C) unless an Event of Default has occurred and is continuing, the Borrower shall have the right to consent to any assignment of the Lender’s rights and obligations under this Agreement, such Eligible Assigneeconsent not to be unreasonably withheld, if not then a conditioned or delayed; provided that no such consent of the Administrative Agent or the Borrower shall be required for an assignment to any Lender or an Affiliate of a Lender. Upon, and to the assigning Lenderextent of, shall be approved any assignment (unless otherwise stated therein) made by any Lender hereunder, the Administrative Agent and Borrower (neither assignee or purchaser of which approvals shall be unreasonably withheld or delayed), (ii) such assignment shall be evidenced by an Assignment and Acceptance, a copy of which shall be furnished to the Administrative Agent as hereinbelow provided, (iii) except in the case of an assignment to an Affiliate of the assigning Lender, to another Lender or of the entire remaining rights and obligations of the assigning Lender under this Agreement, the assignment shall not assign a portion of such assigning Lender’s Commitments and/or Advances owing to such assigning Lender that is equivalent to less than $3,000,000, and (iv) the effective date of any such assignment shall be as specified in the Assignment and Acceptance, but not earlier than the date which is five (5) Banking Days after the date the Administrative Agent has received the Assignment and Acceptance. Upon the effective date of such Assignment and Acceptance, the Eligible Assignee named therein shall be a Lender hereunder for all purposes of this AgreementAgreement and shall have all the rights, with the Commitments and/or Advances therein set forth and, to the extent of such Commitments and/or Advances, the assigning Lender shall be released from its further obligations under this Agreement. Borrower agrees that it shall execute and deliver (against delivery by the assigning Lender to Borrower of such Lender’s Notes) to such assignee Lender, Notes evidencing that assignee Lender’s Commitments and/or Advances, and to the assigning Lender, Notes evidencing the remaining balance of the Commitments and/or Advances retained by the assigning Lender.
(c) By executing and delivering an Assignment and Acceptance, the Eligible Assignee thereunder acknowledges and agrees that: (i) other than the representation and warranty that it is the legal and beneficial owner of the rights benefits and obligations hereunder being assigned thereby free and clear of any adverse claim, (including the assigning Lender has made no representation or warranty and assumes no responsibility with respect obligation to any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness or sufficiency of this Agreement or any other Loan Document; (ii) the assigning Lender has made no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance by Borrower of the Obligations; (iii) it has received a copy of this Agreement, together with copies of the most recent financial statements delivered provide documentation pursuant to Section 7.1 and such other documents and information 2.15(g)) of a Lender hereunder. The Administrative Agent, acting solely for this purpose as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) it will, independently and without reliance upon the Administrative Agent or any Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) it appoints and authorizes the Administrative Agent to take such action and to exercise such powers under this Agreement as are delegated to the Administrative Agent by this Agreement; and (vi) it will perform in accordance with their terms all an agent of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(d) The Administrative Agent Borrower, shall maintain at the Administrative Agent’s Office a copy one of each Assignment and Acceptance delivered to it and its offices a register (the “Register”) for the recordation of the names and address of each addresses of the Lenders Lenders, the Commitment of and the Pro Rata Share outstanding principal amounts (and accrued interest) of the Commitments held by each Lender, giving effect Advances owing to each Assignment Lender pursuant to the terms hereof from time to time and Acceptanceany assignment of such Commitment or outstanding Advances. The entries in the Register shall be available during normal business hours for inspection by Borrower or any Lender upon reasonable prior notice to the Administrative Agent. After receipt of a completed Assignment and Acceptance executed by any Lender and an Eligible Assigneeconclusive absent manifest error, and receipt of an assignment fee of $3,500 from such Lender or Eligible Assignee, the Administrative Agent shall, promptly following the effective date thereof, provide to Borrower and the Lenders a revised Schedule 1.1 giving effect thereto. Borrower, the Administrative Agent and the Lenders shall deem and treat the Persons listed as Lenders in the Register as the holders and owners of the Pro Rata Shares of the Revolving Facility listed therein for all purposes hereof, and no assignment or transfer of any Lender’s rights and obligations hereunder shall be effective, in each case unless and until an Assignment and Acceptance effecting the assignment or transfer thereof shall have been accepted by the Administrative Agent and Person whose name is recorded in the Register as provided above. Prior to such recordation, all amounts owed with respect pursuant to the applicable Pro Rata Share of the Revolving Facility shall be owed to the Lender listed in the Register as the owner thereof, and any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is listed in the Register terms hereof as a Lender hereunder for all purposes of this Agreement. The Register shall be conclusive available for inspection by the Borrower and binding on any subsequent holderLender, assignee or transferee of the corresponding Pro Rata Share of the Revolving Facility.
(e) Each Lender may at any reasonable time and from time to time grant participations upon reasonable prior notice. Any Lender may sell participation interests in its Advances and obligations hereunder (each such recipient of a participation a “Participant”); provided that after giving effect to one or more banks or other financial institutions in or to all or a portion the sale of its rights and/or obligations under this Agreement; providedsuch participation, however, that (i) such Lender’s obligations under this Agreement hereunder and rights to consent to any waiver hereunder or amendment hereof shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) the participating banks or other financial institutions shall not be a all amounts payable to such Lender hereunder for and all rights to consent to any purpose except, waiver hereunder or amendment hereof shall be determined as if the participation agreement so provides, for the purposes of Sections 3.5, 3.6, 11.11 and 11.21 but only to the extent that the cost of such benefits to Borrower does Lender had not exceed the cost which Borrower would have incurred in respect of the Lender granting sold such participation absent interest, and the participation, (iv) Borrower, Borrower and the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender and not be obligated to deal with such participant. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the outstanding principal amounts (and accrued interest) of each Participant’s interest in the Advances or other obligations under the Transaction Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Transaction Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations and Proposed Treasury Regulations Section 1.163-5(b) (or any amended or successor version). The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent shall have no responsibility for maintaining a Participant Register. Each recipient of a participation shall, to the fullest extent permitted by law, have the same rights, benefits and obligations (including the obligation to provide documentation pursuant to Section 2.15(g) (it being understood that the documentation required under Section 2.15(g) shall be delivered to the participating Lender)), hereunder with respect to the rights and benefits so participated as it would have if it were a Lender hereunder, except that no Participant shall be entitled to receive any greater payment under Sections 2.11 or 2.15 than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation. Notwithstanding any other provision of this Agreement to the contrary, a Lender may pledge as collateral, or grant a security interest in, all or any portion of its rights in, to and under this Agreement to (i) a security trustee in connection with the funding by such Lender’s rights and Lender of Advances or (ii) a Federal Reserve Bank to secure obligations to such Federal Reserve Bank, in each case without the consent of the Borrower; provided that no such pledge or grant shall release such Lender from its obligations under this Agreement, (v) the participation interest shall be expressed as a percentage of the granting Lender’s Pro Rata Share of the Revolving Facility as it then exists and shall not restrict an increase in the Revolving Facility (or the aggregate Commitments pertaining thereto), or in the granting Lender’s rights and obligations hereunder, so long as the amount of the participation interest is not affected thereby and (vi) the consent of the holder of such participation interest shall not be required for amendments or waivers of provisions of the Loan Documents other than those which (A) extend any Amortization Date, any applicable Maturity Date or any other date upon which any payment of money is due to the Lenders, (B) reduce the rate of interest on the Notes, any fee or any other monetary amount payable to the Lenders, (C) reduce the amount of any installment of principal due under the Notes, or (D) release any Guarantor from its Guaranty.
(f) Borrower agrees that upon the occurrence and during the continuance of any Event of Default, each Lender shall be entitled to assign its rights hereunder and under the Loan Documents, or grant participation interests in its rights under this Agreement and the Loan Documents, to any Person, in whole or in any part thereof, notwithstanding any provisions contained herein (including those set forth in subsection (b) above) or in any other Loan Document to the contrary, except that, other than (i) assignments by a Lender to an Affiliate of such Lender or to another Lender or (ii) pledges described in the last sentence of subsection (a) above, no assignment shall be made without the approval of the Administrative Agent.
Appears in 2 contracts
Samples: Credit Agreement (Home Point Capital Inc.), Credit Agreement (Home Point Capital Inc.)
Binding Effect; Assignment. (a) This Agreement and the other Loan Documents to which Borrower is a Party party will be binding upon and inure to the benefit of Borrower, the Administrative Agent, each of the Lenders, Lenders and their respective successors and assigns, except that that, Borrower may not assign its rights hereunder or thereunder or any interest herein or therein without the prior written consent of all the Lenders. Each Lender represents that it is not acquiring its Note with a view to the distribution thereof within the meaning of the Securities Act of 1933, as amended (subject to Lenders and any requirement that disposition of such Note must attempted assignment shall be within the control of such Lender)void. Any Lender may at any time pledge its Note or any other instrument evidencing its rights as a Lender under this Agreement to a Federal Reserve BankLender, but no such pledge shall release that Lender from its obligations hereunder or grant to such Federal Reserve Bank Lender the rights of a Lender hereunder absent foreclosure of such pledge.
(b) From time to time following the Closing Date, each Lender may assign to one or more Eligible Assignees all or any portion of its rights Commitments and obligations under this Agreement (including all or a portion its Pro Rata Share of its Commitment, the Advances owing to it and the Note or Notes held by it)Extensions of Credit; provided that, subject to subsection (f) below, that (i) such Eligible Assigneeassignment, if not then to a Lender or an Affiliate of the assigning Lender, shall be approved consented to by Borrower at all times other than during the existence of a Default or Event of Default and Administrative Agent and Issuing Lender (which approval of Borrower (neither of which approvals shall not be unreasonably withheld or delayed), (ii) such assignment shall be evidenced by an Assignment and Acceptance, a copy of which a duly signed and completed Notice of Assignment and Acceptance shall be furnished delivered to the Administrative Agent as hereinbelow providedAgent, (iii) except in the case of an assignment to an Affiliate of the assigning Lender, to another Lender or of the entire remaining rights and obligations Commitments of the assigning Lender under this AgreementLender, the assignment shall not assign a portion of such assigning Lender’s Commitments and/or Advances owing to such assigning Lender that is Pro Rata Share equivalent to less than $3,000,000the Minimum Amount therefor, and (iv) the effective date of any such assignment shall be as specified in the Notice of Assignment and Acceptance, but not earlier than the date which is five (5) Banking Business Days after the date the Administrative Agent has received the Notice of Assignment and Acceptance. Upon the effective date acceptance by Administrative Agent of such Notice Assignment and AcceptanceAcceptance and consent thereto by Administrative Agent and Issuing Lender and payment of the requisite fee described below, the Eligible Assignee named therein shall be a Lender for all purposes of this Agreement, with the Commitments and/or Advances Pro Rata Share therein set forth and, to the extent of such Commitments and/or AdvancesPro Rata Share, the assigning Lender shall be released from its further obligations under this Agreement. Borrower agrees that it shall execute and deliver upon request (against delivery by the assigning Lender to Borrower of such Lender’s Notesany Note) to such assignee Lender, one or more Notes evidencing that assignee Lender’s Commitments and/or AdvancesPro Rata Share, and to the assigning LenderLender if requested, one or more Notes evidencing the remaining balance of the Commitments and/or Advances Pro Rata Share retained by the assigning Lender. Administrative Agent’s consent to and acceptance of any assignment shall not be deemed to constitute any representation or warranty by any Administrative Agent-Related Person as to any matter.
(c) By executing and delivering an Assignment and Acceptance, the Eligible Assignee thereunder acknowledges and agrees that: (i) other than the representation and warranty that it is the legal and beneficial owner of the rights and obligations hereunder being assigned thereby free and clear of any adverse claim, the assigning Lender has made 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 or sufficiency of this Agreement or any other Loan Document; (ii) the assigning Lender has made no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance by Borrower of the Obligations; (iii) it has received a copy of this Agreement, together with copies of the most recent financial statements delivered pursuant to Section 7.1 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) it will, independently and without reliance upon the Administrative Agent or any Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) it appoints and authorizes the Administrative Agent to take such action and to exercise such powers under this Agreement as are delegated to the Administrative Agent by this Agreement; and (vi) 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.
(d) The Administrative Agent shall maintain at the Administrative Agent’s Office a copy of each Assignment and Acceptance delivered to it and a register (the “Register”) of the names and address of each of the Lenders and the Pro Rata Share of the Commitments held by each Lender, giving effect to each Assignment and Acceptance. The Register shall be available during normal business hours for inspection by Borrower or any Lender upon reasonable prior notice to the Administrative Agent. After receipt of a completed Notice of Assignment and Acceptance executed by any Lender and an Eligible AssigneeAcceptance, and receipt of an assignment fee of $3,500 from such Lender or Eligible AssigneeAssignee (including Affiliates of assigning Lenders), the Administrative Agent shall, promptly following the effective date thereof, provide to Borrower and the Lenders a revised Schedule 1.1 11.02 giving effect thereto. Borrower, the Administrative Agent and the Lenders shall deem and treat the Persons listed as Lenders in the Register as the holders and owners of the Pro Rata Shares of the Revolving Facility listed therein for all purposes hereof, and no assignment or transfer of any Lender’s rights and obligations hereunder shall be effective, in each case unless and until an Assignment and Acceptance effecting the assignment or transfer thereof shall have been accepted by the Administrative Agent and recorded in the Register as provided above. Prior to such recordation, all amounts owed with respect to the applicable Pro Rata Share of the Revolving Facility shall be owed to the Lender listed in the Register as the owner thereof, and any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is listed in the Register as a Lender shall be conclusive and binding on any subsequent holder, assignee or transferee of the corresponding Pro Rata Share of the Revolving Facility.
(ed) Each Lender may from time to time grant participations to one or more banks or other financial institutions in or to (including another Lender) all or a any portion of its rights and/or obligations under this AgreementCommitments and its Pro Rata Share of the Extensions of Credit; provided, however, that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) the participating banks or other financial institutions shall not be a Lender hereunder for any purpose except, if the participation agreement so provides, for the purposes of Sections 3.5, 3.6, 11.11 and 11.21 Section 3 (but only to the extent that the cost of such benefits to Borrower does not exceed the cost which Borrower would have incurred in respect of the such Lender granting such participation absent the participation) and subject to Sections 10.05 and 10.06, (iv) Borrower, the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement, (v) the participation interest shall be expressed as a percentage of the granting Lender’s Pro Rata Share of the Revolving Facility as it then exists and shall not restrict an increase in the Revolving Facility (or the aggregate Commitments pertaining thereto), or in the granting Lender’s rights and obligations hereunderPro Rata Share, so long as the amount of the participation interest is not affected thereby thereby, and (vi) the consent of the holder of such participation interest shall not be required for amendments or waivers of provisions of the Loan Documents other than those Documents; provided, however, that the assigning Lender may, in any agreement with a participant, give such participant the right to consent to any matter which (Aa) extend any Amortization Date, any applicable extends the Maturity Date as to such participant or any other date upon which any payment of money is due to the Lenderssuch participant, (Bb) reduce reduces the rate of interest on the Notesowing to such participant, any fee or any other monetary amount payable owing to the Lenderssuch participant, or (Cc) reduce reduces the amount of any installment of principal due under the Notes, or (D) release any Guarantor from its Guarantyowing to such participant.
(f) Borrower agrees that upon the occurrence and during the continuance of any Event of Default, each Lender shall be entitled to assign its rights hereunder and under the Loan Documents, or grant participation interests in its rights under this Agreement and the Loan Documents, to any Person, in whole or in any part thereof, notwithstanding any provisions contained herein (including those set forth in subsection (b) above) or in any other Loan Document to the contrary, except that, other than (i) assignments by a Lender to an Affiliate of such Lender or to another Lender or (ii) pledges described in the last sentence of subsection (a) above, no assignment shall be made without the approval of the Administrative Agent.
Appears in 2 contracts
Samples: Credit Agreement (Stater Bros Holdings Inc), Credit Agreement (Stater Bros Holdings Inc)
Binding Effect; Assignment. (a) This Agreement shall become effective when it shall have been executed by each of the parties hereto and the other Loan Documents to which Borrower is a Party will thereafter shall be binding upon and upon, inure to the benefit of Borrower, the Administrative Agent, each of the Lenders, and be enforceable by such parties and their respective permitted successors and assigns, except that Borrower may not . No Credit Party shall have the right to assign its rights and obligations hereunder or thereunder under the other Facility Documents or any interest herein or therein without the prior written consent of all the LendersAgent (acting on the instructions of the Lenders in the case of this Agreement and the Production Payment Termination Fee Holder in the case of the Production Payment Agreement Termination Agreement). Each Lender represents that it is not acquiring its Note with a view relevant Transaction Party reserves the right to the distribution thereof within the meaning of the Securities Act of 1933sell, as amended (subject to any requirement that disposition of such Note must be within the control of such Lender). Any Lender may at any time pledge its Note or any other instrument evidencing its rights as a Lender under this Agreement to a Federal Reserve Bankassign, but no such pledge shall release that Lender from its obligations hereunder transfer or grant to such Federal Reserve Bank the rights of a Lender hereunder absent foreclosure of such pledge.
(b) From time to time following the Closing Dateparticipations in, each Lender may assign to one or more Eligible Assignees all or any portion of its such Transaction Party’s rights and obligations hereunder and under this Agreement the other Facility Documents to which it is a party to any other Person, provided that (including all or a portion of its Commitment, the Advances owing to it and the Note or Notes held by it); provided that, subject to subsection (f) below, (i) such Eligible Assignee, if not then a Lender or an Affiliate of the assigning Lender, shall be approved by the Administrative Agent and Borrower (neither of which approvals shall be unreasonably withheld or delayed), (ii) such assignment shall be evidenced by an Assignment and Acceptance, a copy of which shall be furnished to the Administrative Agent as hereinbelow provided, (iii) except in the case of an assignment to an Affiliate a grant of a participation) (i) any such act shall require the prior written consent of the assigning Lender, to another Lender or Agent (acting in accordance with the instructions of the entire remaining rights and obligations Majority Creditors, in their sole discretion); (ii) any such sale, assignment or transfer to a Person to whom Payments hereunder or under the Production Payment Agreement Termination Agreement would result in the Borrower having to pay additional amounts under Section 11.5(b)(v) (in amounts greater than those, if any, which would have been payable had the sale, assignment or transfer not been made) shall require the prior written consent of the assigning Lender Borrower (unless a Default has occurred in which case no prior consent from the Borrower shall be required); (iii) the right to receive any Securities may not be assigned unless the proposed assignment complies with all Applicable Securities Legislation and provided further that the Borrower shall have no obligation to issue Securities to any assignee if such issuance would require the preparation or filing of any prospectus, registration statement or similar document under this Agreementany Applicable Securities Legislation or otherwise violate any Applicable Securities Legislation, provided always that in such circumstances, the assignment Borrower shall not assign a portion deliver the cash equivalent of any such assigning Lender’s Commitments and/or Advances owing Securities to such assigning Lender that is equivalent to less than $3,000,000, be issued) and (iv) the effective date no assignment, transfer or grant of participations in all or any such assignment shall be as specified in the Assignment and Acceptance, but not earlier than the date which is five (5) Banking Days after the date the Administrative Agent has received the Assignment and Acceptance. Upon the effective date portion of such Assignment and Acceptance, the Eligible Assignee named therein shall be a Lender for all purposes of this Agreement, with the Commitments and/or Advances therein set forth and, to the extent of such Commitments and/or Advances, the assigning Lender shall be released from its further obligations under this Agreement. Borrower agrees that it shall execute and deliver (against delivery by the assigning Lender to Borrower of such Lender’s Notes) to such assignee Lender, Notes evidencing that assignee Lender’s Commitments and/or Advances, and to the assigning Lender, Notes evidencing the remaining balance of the Commitments and/or Advances retained by the assigning Lender.
(c) By executing and delivering an Assignment and Acceptance, the Eligible Assignee thereunder acknowledges and agrees that: (i) other than the representation and warranty that it is the legal and beneficial owner of the rights and obligations hereunder being assigned thereby free and clear of any adverse claim, the assigning Lender has made 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 or sufficiency of this Agreement or any other Loan Document; (ii) the assigning Lender has made no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance by Borrower of the Obligations; (iii) it has received a copy of this Agreement, together with copies of the most recent financial statements delivered pursuant to Section 7.1 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) it will, independently and without reliance upon the Administrative Agent or any Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) it appoints and authorizes the Administrative Agent to take such action and to exercise such powers under this Agreement as are delegated to the Administrative Agent by this Agreement; and (vi) 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.
(d) The Administrative Agent shall maintain at the Administrative Agent’s Office a copy of each Assignment and Acceptance delivered to it and a register (the “Register”) of the names and address of each of the Lenders and the Pro Rata Share of the Commitments held by each Lender, giving effect to each Assignment and Acceptance. The Register shall be available during normal business hours for inspection by Borrower or any Lender upon reasonable prior notice to the Administrative Agent. After receipt of a completed Assignment and Acceptance executed by any Lender and an Eligible Assignee, and receipt of an assignment fee of $3,500 from such Lender or Eligible Assignee, the Administrative Agent shall, promptly following the effective date thereof, provide to Borrower and the Lenders a revised Schedule 1.1 giving effect thereto. Borrower, the Administrative Agent and the Lenders shall deem and treat the Persons listed as Lenders in the Register as the holders and owners of the Pro Rata Shares of the Revolving Facility listed therein for all purposes hereof, and no assignment or transfer of any Lender’s rights and obligations hereunder shall and under the other Facility Documents may be effective, in each case unless made to any Person prohibited from holding any such rights and until an Assignment and Acceptance effecting obligations under Applicable Law. In the assignment or transfer thereof shall have been accepted by the Administrative Agent and recorded in the Register as provided above. Prior to such recordation, all amounts owed with respect to the applicable Pro Rata Share of the Revolving Facility shall be owed to the Lender listed in the Register as the owner thereof, and any request, authority or consent event of any Person whosuch grant of a participation, at the time of making such request or giving such authority or consent, is listed in the Register as a Lender shall be conclusive and binding on any subsequent holder, assignee or transferee of the corresponding Pro Rata Share of the Revolving Facility.
(e) Each Lender may from time to time grant participations to one or more banks or other financial institutions in or to all or a portion of its rights and/or obligations under this Agreement; provided, however, that (i) such granting Lender’s obligations under this Agreement to the Borrower shall (except as set forth in the preceding sentence) remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) the participating banks or other financial institutions shall not be a Lender hereunder for any purpose except, if the participation agreement so provides, for the purposes of Sections 3.5, 3.6, 11.11 and 11.21 but only to the extent that the cost of such benefits to Borrower does not exceed the cost which Borrower would have incurred in respect of the Lender granting such participation absent the participation, (iv) Borrower, the Administrative Agent thereof and the other Lenders Credit Parties shall continue to deal solely and directly with be obligated to such Lender in connection with such Lender’s rights under this Agreement and the other Facility Documents (including in respect of the interest in respect of which the Lender has granted a participation). In the event of any such assignment, upon written notice thereof to the Borrower, the assignee shall be deemed to be a “Lender” for all purposes of the Facility Documents with respect to the rights and obligations assigned to it, and the rights and obligations of the assigning Lender so assigned shall thereupon terminate. The Agent, acting solely for this purpose as a non-fiduciary agent of the Borrower, shall maintain a register for the recordation of the names and addresses of the Lenders and principal amounts (and stated interest) of the loan owing to, each Lender pursuant to the terms hereof from time to time (the “Register”). The entries in the Register shall be conclusive absent manifest error, and the Credit Parties and the Finance Parties shall 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. The Register shall be available for inspection by the Borrower and any Lender, at any reasonable time and from time to time upon reasonable prior notice. The Borrower and each other Credit Party shall, from time to time upon request of the Agent, enter into such amendments to the Facility Documents and execute and deliver such other documents as shall be necessary to effect any such grant or assignment. The Borrower agrees that in connection with any such grant or assignment, the Agent may deliver to the prospective participant or assignee financial statements and other relevant information relating to the Borrower and the Subsidiaries. In the event of any such participation, each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each participant and the principal amounts (and stated interest) of each Participant’s interest in the loans or other obligations under this Agreement, Agreement (v) the participation interest “Participant Register”); provided that no Lender shall be expressed as a percentage have any obligation to disclose the identity of the granting Lender’s Pro Rata Share of the Revolving Facility as it then exists and shall not restrict an increase in the Revolving Facility (Participant or the aggregate Commitments pertaining thereto), or in amount such Participant holds. The Initial Lender hereby undertakes to use its commercially reasonable best efforts to provide the granting Lender’s rights and obligations hereunder, so long as the amount Borrower with at least 14 days prior notice of the participation interest is not affected thereby and (vi) the consent of the holder of such participation interest shall not be required for amendments or waivers of provisions of the Loan Documents other than those which (A) extend any Amortization Date, any applicable Maturity Date or any other date upon which any payment of money is due to the Lenders, (B) reduce the rate of interest on the Notes, any fee or any other monetary amount payable to the Lenders, (C) reduce the amount of any installment of principal due under the Notes, or (D) release any Guarantor from its Guaranty.
(f) Borrower agrees that upon the occurrence and during the continuance of any Event of Default, each Lender shall be entitled intent to assign its rights hereunder and under to any Person which is not an affiliate of the Loan Documents, or grant participation interests in its Initial Lender. Any failure to provide such notice shall not derogate from the Initial Lender’s rights under this Agreement hereunder and the Loan Documents, to Borrower shall not make any Person, in whole claim for compensation or in damages as a result of any part thereof, notwithstanding such failure. Notwithstanding any provisions contained herein (including those set forth in subsection (b) above) or in any other Loan Document to of the contrary, except that, other than (i) assignments by a Lender to an Affiliate of such Lender or to another Lender or (ii) pledges described in the last sentence of subsection (a) aboveforegoing, no assignment hereunder by any party hereto unless the relevant assignee shall have acknowledged the terms of, and agreed to be made without bound by, the approval of the Administrative AgentIntercreditor Agreement.
Appears in 2 contracts
Samples: Second Lien Credit Agreement (Platinum Group Metals LTD), Second Lien Credit Agreement (Platinum Group Metals LTD)
Binding Effect; Assignment. (a) This Agreement and the other Loan Documents to which Borrower is a Party will be binding upon and inure Notwithstanding anything herein to the benefit of Borrowercontrary, the Administrative Agent, each of the Lenders, and their respective successors and assigns, except that Borrower may not assign its rights hereunder or thereunder or any interest herein or therein without the prior written consent of all the Lenders. Each Lender represents that it is not acquiring its Note with a view to the distribution thereof within the meaning of the Securities Act of 1933, as amended (subject to any requirement that disposition of such Note must be within the control of such Lender). Any Lender may at any time pledge its Note or any other instrument evidencing its rights as a Lender under this Agreement to a Federal Reserve Bank, but no such pledge shall release that Lender from its obligations hereunder or grant to such Federal Reserve Bank the rights of a Lender hereunder absent foreclosure (x) any Former Preferred Holder under ARTICLE XVIII, ARTICLE XIX and ARTICLE XX and (y) any Target Holder under ARTICLE XX may be assigned, and (i) the Company is, within reasonable time after such transfer, furnished with written notice of the name and address of such pledgetransferee or assignee and the securities with respect to which such rights are being assigned and (ii) such transferee or assignee agrees in writing to be bound by and subject to the terms and conditions of this ARTICLE XXI and the terms and conditions of each Section of this Agreement with respect to which any rights are being assigned thereto under this clause. From the time of such transfer or assignment, for all purposes of each Section of this agreement with respect to which rights are assigned thereto under this clause, such transferee or assignee shall be treated as a "Former Preferred Holder" or "Target Holder", as the case may be.
(b) From time Notwithstanding anything herein to time following the Closing Date, each Lender may assign to one or more Eligible Assignees all or any portion of its rights and obligations under this Agreement (including all or a portion of its Commitmentcontrary, the Advances owing rights of any Holder under ARTICLE XVI may be assigned to it the extent such Holder transfers any Registrable Securities held thereby to another Person in compliance with ARTICLE XVIII and the Note or Notes held by it); provided that, subject to subsection (f) below, (i) the Company is, within a reasonable time after such Eligible Assigneetransfer, if not then a Lender or an Affiliate furnished with written notice of the assigning Lender, shall be approved by name and address of such transferee or assignee and the Administrative Agent and Borrower (neither of securities with respect to which approvals shall be unreasonably withheld or delayed), such rights are being assigned; (ii) such assignment shall transferee or assignee agrees in writing to be evidenced bound by an Assignment and Acceptance, a copy of which shall be furnished subject to the Administrative Agent as hereinbelow provided, terms and conditions of ARTICLE XVI and this ARTICLE XXI; and (iii) except in immediately following such transfer or assignment the case of an assignment to an Affiliate of the assigning Lender, to another Lender or of the entire remaining rights and obligations of the assigning Lender under this Agreement, the assignment shall not assign a portion further disposition of such assigning Lender’s Commitments and/or Advances owing to such assigning Lender that securities by the transferee or assignee is equivalent to less than $3,000,000, and (iv) restricted under Applicable Securities Law. From the effective date of any such assignment shall be as specified in the Assignment and Acceptance, but not earlier than the date which is five (5) Banking Days after the date the Administrative Agent has received the Assignment and Acceptance. Upon the effective date time of such Assignment and Acceptancetransfer or assignment, the Eligible Assignee named therein shall be a Lender for all purposes of this AgreementARTICLE XVI, with the Commitments and/or Advances therein set forth and, to the extent of such Commitments and/or Advances, the assigning Lender transferee or assignee shall be released from its further obligations under this Agreement. Borrower agrees that it shall execute and deliver (against delivery by the assigning Lender to Borrower of such Lender’s Notes) to such assignee Lender, Notes evidencing that assignee Lender’s Commitments and/or Advances, and to the assigning Lender, Notes evidencing the remaining balance of the Commitments and/or Advances retained by the assigning Lendertreated as a "Holder".
(c) By executing This Agreement shall be binding upon and delivering an Assignment and Acceptance, the Eligible Assignee thereunder acknowledges and agrees that: (i) other than the representation and warranty that it is the legal and beneficial owner of the rights and obligations hereunder being assigned thereby free and clear of any adverse claim, the assigning Lender has made 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 or sufficiency of this Agreement or any other Loan Document; (ii) the assigning Lender has made no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance by Borrower of the Obligations; (iii) it has received a copy of this Agreement, together with copies of the most recent financial statements delivered pursuant to Section 7.1 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) it will, independently and without reliance upon the Administrative Agent or any Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) it appoints and authorizes the Administrative Agent to take such action and to exercise such powers under this Agreement as are delegated to the Administrative Agent by this Agreement; and (vi) 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.
(d) The Administrative Agent shall maintain at the Administrative Agent’s Office a copy of each Assignment and Acceptance delivered to it and a register (the “Register”) of the names and address of each of the Lenders and the Pro Rata Share of the Commitments held enforceable by each Lenderparty, giving effect to each Assignment its successors and Acceptancepermitted assigns. The Register shall be available during normal business hours for inspection by Borrower or any Lender upon reasonable prior notice to the Administrative Agent. After receipt of a completed Assignment and Acceptance executed by any Lender and an Eligible Assignee, and receipt of an assignment fee of $3,500 from such Lender or Eligible Assignee, the Administrative Agent shall, promptly following the effective date thereof, provide to Borrower and the Lenders a revised Schedule 1.1 giving effect thereto. Borrower, the Administrative Agent and the Lenders shall deem and treat the Persons listed as Lenders in the Register as the holders and owners of the Pro Rata Shares of the Revolving Facility listed therein for all purposes hereof, and no assignment or transfer of any Lender’s rights and obligations hereunder shall be effective, in each case unless and until an Assignment and Acceptance effecting the assignment or transfer thereof shall have been accepted by the Administrative Agent and recorded in the Register Except as provided abovein Section SECTION 21.1. Prior to such recordation(a) and Section SECTION 21.1. (b), all amounts owed with respect to the applicable Pro Rata Share of the Revolving Facility shall be owed to the Lender listed in the Register as the owner thereof, and no party may assign any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is listed in the Register as a Lender shall be conclusive and binding on any subsequent holder, assignee or transferee of the corresponding Pro Rata Share of the Revolving Facility.
(e) Each Lender may from time to time grant participations to one or more banks or other financial institutions in or to all or a portion of its rights and/or or obligations under this Agreement; provided, however, that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) the participating banks or other financial institutions shall not be a Lender hereunder for any purpose except, if the participation agreement so provides, for the purposes of Sections 3.5, 3.6, 11.11 and 11.21 but only to the extent that the cost of such benefits to Borrower does not exceed the cost which Borrower would have incurred in respect of the Lender granting such participation absent the participation, (iv) Borrower, the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement, (v) the participation interest shall be expressed as a percentage of the granting Lender’s Pro Rata Share of the Revolving Facility as it then exists and shall not restrict an increase in the Revolving Facility (or the aggregate Commitments pertaining thereto), or in the granting Lender’s rights and obligations hereunder, so long as the amount of the participation interest is not affected thereby and (vi) the consent of the holder of such participation interest shall not be required for amendments or waivers of provisions of the Loan Documents other than those which (A) extend any Amortization Date, any applicable Maturity Date or any other date upon which any payment of money is due to the Lenders, (B) reduce the rate of interest on the Notes, any fee or any other monetary amount payable to the Lenders, (C) reduce the amount of any installment of principal due under the Notes, or (D) release any Guarantor from its Guaranty.
(f) Borrower agrees that upon the occurrence and during the continuance of any Event of Default, each Lender shall be entitled to assign its rights hereunder and under the Loan Documents, or grant participation interests in its rights under this Agreement and the Loan Documents, to any Person, in whole or in any part thereof, notwithstanding any provisions contained herein (including those set forth in subsection (b) above) or in any other Loan Document to the contrary, except that, other than (i) assignments by a Lender to an Affiliate of such Lender or to another Lender or (ii) pledges described in the last sentence of subsection (a) above, no assignment shall be made without the prior written approval of the Administrative Agentother parties.
Appears in 2 contracts
Samples: Share Purchase Agreement (Focus Media Holding LTD), Share Purchase Agreement (Focus Media Holding LTD)
Binding Effect; Assignment. (a) This Agreement and the other Loan Documents to which Borrower is a Party will be binding upon and inure to the benefit of Borrower, the Administrative Agent, each of the Lenders, and their respective successors and assigns, except that Borrower may not assign its rights hereunder or thereunder or any interest herein or therein without the prior written consent of all the Lenders. Each Lender represents that it is not acquiring its Note with a view to the distribution thereof within the meaning of the Securities Act of 1933, as amended (subject to any requirement that disposition of such Note must be within the control of such Lender). Any Lender may at any time pledge its Note or any other instrument evidencing its rights as a Lender under this Agreement to a Federal Reserve Bank, but no such pledge shall release that Lender from its obligations hereunder or grant to such Federal Reserve Bank the rights of a Lender hereunder absent foreclosure of such pledge.
(b) From time to time following the Closing Date, each Lender may assign to one or more Eligible Assignees all or any portion of its rights and obligations under this Agreement (including all or a portion Pro Rata Share of its Commitment, the Advances owing to it and the Note or Notes held by it)Commitments; provided that, subject to subsection (f) below, that (i) such Eligible Assignee, if not then a Lender or an Affiliate of the assigning Lender, shall be approved by the Administrative Agent and (if no Event of Default then exists) Borrower (neither of which approvals shall be unreasonably withheld or delayed), (ii) such assignment shall be evidenced by an a Commitment Assignment and Acceptance, a copy of which shall be furnished to the Administrative Agent as hereinbelow provided, (iii) except in the case of an assignment to an Affiliate of the assigning Lender, to another Lender or of the entire remaining rights and obligations Commitments of the assigning Lender under this AgreementLender, the assignment shall not assign a portion Pro Rata Share of such assigning Lender’s the Commitments and/or Advances owing to such assigning Lender that is equivalent to less than $3,000,000, 5,000,000 and (iv) the effective date of any such assignment shall be as specified in the Commitment Assignment and Acceptance, but not earlier than the date which is five (5) Banking Days after the date the Administrative Agent has received the Commitment Assignment and Acceptance. Upon the effective date of such Commitment Assignment and Acceptance, the Eligible Assignee named therein shall be a Lender for all purposes of this Agreement, with the Pro Rata Share of the Commitments and/or Advances therein set forth and, to the extent of such Commitments and/or AdvancesPro Rata Share, the assigning Lender shall be released from its further obligations under this Agreement. Borrower agrees that it shall execute and deliver (against delivery by the assigning Lender to Borrower of such Lender’s its Notes) to such assignee Lender, Notes evidencing that assignee Lender’s Commitments and/or Advances's Pro Rata Share of the Commitments, and to the assigning Lender, Notes evidencing the remaining balance of the Commitments and/or Advances Pro Rata Share retained by the assigning Lender.
(c) By executing and delivering an Assignment and Acceptance, the Eligible Assignee thereunder acknowledges and agrees that: (i) other than the representation and warranty that it is the legal and beneficial owner of the rights and obligations hereunder being assigned thereby free and clear of any adverse claim, the assigning Lender has made 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 or sufficiency of this Agreement or any other Loan Document; (ii) the assigning Lender has made no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance by Borrower of the Obligations; (iii) it has received a copy of this Agreement, together with copies of the most recent financial statements delivered pursuant to Section 7.1 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) it will, independently and without reliance upon the Administrative Agent or any Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) it appoints and authorizes the Administrative Agent to take such action and to exercise such powers under this Agreement as are delegated to the Administrative Agent by this Agreement; and (vi) 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.
(d) The Administrative Agent shall maintain at the Administrative Agent’s Office a copy of each Assignment and Acceptance delivered to it and a register (the “Register”) of the names and address of each of the Lenders and the Pro Rata Share of the Commitments held by each Lender, giving effect to each Assignment and Acceptance. The Register shall be available during normal business hours for inspection by Borrower or any Lender upon reasonable prior notice to the Administrative Agent. After receipt of a completed Assignment and Acceptance executed by any Lender and an Eligible Assignee, and receipt of an assignment fee of $3,500 from such Lender or Eligible Assignee, the Administrative Agent shall, promptly following the effective date thereof, provide to Borrower and the Lenders a revised Schedule 1.1 giving effect thereto. Borrower, the Administrative Agent and the Lenders shall deem and treat the Persons listed as Lenders in the Register as the holders and owners of the Pro Rata Shares of the Revolving Facility listed therein for all purposes hereof, and no assignment or transfer of any Lender’s rights and obligations hereunder shall be effective, in each case unless and until an Assignment and Acceptance effecting the assignment or transfer thereof shall have been accepted by the Administrative Agent and recorded in the Register as provided above. Prior to such recordation, all amounts owed with respect to the applicable Pro Rata Share of the Revolving Facility shall be owed to the Lender listed in the Register as the owner thereof, and any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is listed in the Register as a Lender shall be conclusive and binding on any subsequent holder, assignee or transferee of the corresponding Pro Rata Share of the Revolving Facility.
(e) Each Lender may from time to time grant participations to one or more banks or other financial institutions in or to all or a portion of its rights and/or obligations under this Agreement; provided, however, that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) the participating banks or other financial institutions shall not be a Lender hereunder for any purpose except, if the participation agreement so provides, for the purposes of Sections 3.5, 3.6, 11.11 and 11.21 but only to the extent that the cost of such benefits to Borrower does not exceed the cost which Borrower would have incurred in respect of the Lender granting such participation absent the participation, (iv) Borrower, the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement, (v) the participation interest shall be expressed as a percentage of the granting Lender’s Pro Rata Share of the Revolving Facility as it then exists and shall not restrict an increase in the Revolving Facility (or the aggregate Commitments pertaining thereto), or in the granting Lender’s rights and obligations hereunder, so long as the amount of the participation interest is not affected thereby and (vi) the consent of the holder of such participation interest shall not be required for amendments or waivers of provisions of the Loan Documents other than those which (A) extend any Amortization Date, any applicable Maturity Date or any other date upon which any payment of money is due to the Lenders, (B) reduce the rate of interest on the Notes, any fee or any other monetary amount payable to the Lenders, (C) reduce the amount of any installment of principal due under the Notes, or (D) release any Guarantor from its Guaranty.
(f) Borrower agrees that upon the occurrence and during the continuance of any Event of Default, each Lender shall be entitled to assign its rights hereunder and under the Loan Documents, or grant participation interests in its rights under this Agreement and the Loan Documents, to any Person, in whole or in any part thereof, notwithstanding any provisions contained herein (including those set forth in subsection (b) above) or in any other Loan Document to the contrary, except that, other than (i) assignments by a Lender to an Affiliate of such Lender or to another Lender or (ii) pledges described in the last sentence of subsection (a) above, no assignment shall be made without the approval of the Administrative Agent.
Appears in 2 contracts
Samples: Revolving/Term Loan Agreement (Viasat Inc), Revolving/Term Loan Agreement (Safeskin Corp)
Binding Effect; Assignment. (a) This Agreement and the other Loan Documents to which Borrower is a Party will any Margin Loans hereunder shall be binding upon and shall inure to the benefit of Borrower, the Administrative Agent, each of the Lenders, parties and their respective successors and permitted assigns, except that Borrower may . The rights and obligations of the parties under this Agreement and under any Margin Loan shall not assign its rights hereunder or thereunder or any interest herein or therein be assigned by either party without the prior written consent of all the Lenders. Each Lender represents that it is not acquiring its Note with a view to other party, and any such assignment without the distribution thereof within the meaning prior written consent of the Securities Act of 1933, as amended (subject to any requirement that disposition of such Note must other party shall be within the control of such Lender). Any Lender may at any time pledge its Note or any other instrument evidencing its rights as a Lender under this Agreement to a Federal Reserve Bank, but no such pledge shall release that Lender from its obligations hereunder or grant to such Federal Reserve Bank the rights of a Lender hereunder absent foreclosure of such pledgenull and void.
(b) From Notwithstanding the foregoing, the Bank may at any time to time following the Closing Date, each Lender may assign to one or more Eligible Assignees banks or other financial institutions (each, an “Assignee”) all or any pro rata portion of its rights and obligations under this Agreement (including all or a portion of its Commitmentand any Margin Loan, and any such Assignee shall assume such rights and obligations, pursuant to an Assignment and Assumption Agreement in the Advances owing to it and the Note or Notes held by it); provided that, subject to subsection (f) below, (i) such Eligible Assignee, if not then a Lender or an Affiliate of the assigning Lender, shall be form approved by the Administrative Agent Bank and Borrower executed by such Assignee and the Bank, with (neither and subject to) the subscribed consent of the Borrower, which approvals shall not be unreasonably withheld or delayed), (ii) such assignment shall be evidenced by an Assignment and Acceptance, a copy of which shall be furnished to the Administrative Agent as hereinbelow provided, (iii) except in the case of an assignment to an Affiliate of the assigning Lender, to another Lender or of the entire remaining rights and obligations of the assigning Lender under this Agreement, the assignment shall not assign a portion of such assigning Lender’s Commitments and/or Advances owing to such assigning Lender that is equivalent to less than $3,000,000, and (iv) the effective date of any such assignment shall be as specified in the Assignment and Acceptance, but not earlier than the date which is five (5) Banking Days after the date the Administrative Agent has received the Assignment and Acceptance. Upon the effective date of such Assignment and Acceptance, the Eligible Assignee named therein shall be a Lender for all purposes of this Agreement, with the Commitments and/or Advances therein set forth and, to the extent of such Commitments and/or Advances, the assigning Lender shall be released from its further obligations under this Agreement. Borrower agrees that it shall execute and deliver (against delivery by the assigning Lender to Borrower of such Lender’s Notes) to such assignee Lender, Notes evidencing that assignee Lender’s Commitments and/or Advances, and to the assigning Lender, Notes evidencing the remaining balance of the Commitments and/or Advances retained by the assigning Lender.
(c) By executing and delivering an Assignment and Acceptance, the Eligible Assignee thereunder acknowledges and agrees that: (i) other than the representation and warranty that it is the legal and beneficial owner of the rights and obligations hereunder being assigned thereby free and clear of any adverse claim, the assigning Lender has made 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 or sufficiency of this Agreement or any other Loan Document; (ii) the assigning Lender has made no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance by Borrower of the Obligations; (iii) it has received a copy of this Agreement, together with copies of the most recent financial statements delivered pursuant to Section 7.1 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) it will, independently and without reliance upon the Administrative Agent or any Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) it appoints and authorizes the Administrative Agent to take such action and to exercise such powers under this Agreement as are delegated to the Administrative Agent by this Agreement; and (vi) 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.
(d) The Administrative Agent shall maintain at the Administrative Agent’s Office a copy of each Assignment and Acceptance delivered to it and a register (the “Register”) of the names and address of each of the Lenders and the Pro Rata Share of the Commitments held by each Lender, giving effect to each Assignment and Acceptance. The Register shall be available during normal business hours for inspection by Borrower or any Lender upon reasonable prior notice to the Administrative Agent. After receipt of a completed Assignment and Acceptance executed by any Lender and an Eligible Assignee, and receipt of an assignment fee of $3,500 from such Lender or Eligible Assignee, the Administrative Agent shall, promptly following the effective date thereof, provide to Borrower and the Lenders a revised Schedule 1.1 giving effect thereto. Borrower, the Administrative Agent and the Lenders shall deem and treat the Persons listed as Lenders in the Register as the holders and owners of the Pro Rata Shares of the Revolving Facility listed therein for all purposes hereof, and no assignment or transfer of any Lender’s rights and obligations hereunder shall be effective, in each case unless and until an Assignment and Acceptance effecting the assignment or transfer thereof shall have been accepted by the Administrative Agent and recorded in the Register as provided above. Prior to such recordation, all amounts owed with respect to the applicable Pro Rata Share of the Revolving Facility shall be owed to the Lender listed in the Register as the owner thereof, and any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is listed in the Register as a Lender shall be conclusive and binding on any subsequent holder, assignee or transferee of the corresponding Pro Rata Share of the Revolving Facility.
(e) Each Lender may from time to time grant participations to one or more banks or other financial institutions in or to all or a portion of its rights and/or obligations under this Agreement; provided, however, that (i) if any such Lender’s obligations Assignee is an Affiliate of the Bank, no consent shall be required and (ii) if any Event of Default under this Agreement has occurred and is continuing, no consent of the Borrower to such assignment shall remain unchangedbe required. Notwithstanding the foregoing, (ii) any such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) the participating banks or other financial institutions Assignee shall not be a Lender hereunder for entitled to receive any purpose except, if greater payment under Article III hereof than the participation agreement so provides, for the purposes of Sections 3.5, 3.6, 11.11 and 11.21 but only Bank would have been entitled to receive with respect to the extent rights assigned.
(c) The Bank (including its successors and permitted assigns) may, without regard to the foregoing restrictions on assignment contained in this Section 8.06, assign all or any pro rata portion of its rights under this Agreement to a U.S. Federal Reserve Bank, provided that no such assignment shall release the cost Bank from any of such benefits its obligations hereunder.
(d) The Bank may at any time, without the consent of, or notice to the Borrower, sell participations to any Person (other than the Borrower does not exceed the cost which Borrower would have incurred or any its Affiliates) (each, a “Participant”) in respect all or a portion of the Lender granting such participation absent the participation, (iv) Borrower, the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such LenderBank’s rights and obligations under this Agreement; provided that no such sale of a participation shall release the Bank from any of its obligations hereunder.
(e) If the Bank (or its successors or assignees, as applicable) sells a participation, it shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (vand stated interest) of each Participant’s interest in any obligations under this Agreement or any other Margin Loan Document (the participation “Participant Register”); provided that such Person shall not have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under this Agreement or any other Margin Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be expressed as a percentage of conclusive absent manifest error and the granting Lender’s Pro Rata Share of the Revolving Facility as it then exists and shall not restrict an increase Person whose name is recorded in the Revolving Facility (or the aggregate Commitments pertaining thereto), or in the granting Lender’s rights and obligations hereunder, so long Participant Register as the amount of the participation interest is not affected thereby and (vi) the consent of the holder owner of such participation interest shall not be required for amendments or waivers of provisions of the Loan Documents other than those which (A) extend any Amortization Date, any applicable Maturity Date or any other date upon which any payment of money is due to the Lenders, (B) reduce the rate of interest on the Notes, any fee or any other monetary amount payable to the Lenders, (C) reduce the amount of any installment of principal due under the Notes, or (D) release any Guarantor from its Guaranty.
(f) Borrower agrees that upon the occurrence and during the continuance of any Event of Default, each Lender shall be entitled to assign its rights hereunder and under treated as the Loan Documents, or grant owner of such participation interests in its rights under for all purposes of this Agreement and the Loan Documents, to any Person, in whole or in any part thereof, notwithstanding any provisions contained herein (including those set forth in subsection (b) above) or in any other Loan Document notice to the contrary, except that, other than (i) assignments by a Lender to an Affiliate of such Lender or to another Lender or (ii) pledges described in the last sentence of subsection (a) above, no assignment shall be made without the approval of the Administrative Agent.
Appears in 2 contracts
Samples: Master Margin Loan Agreement (Western Asset Diversified Income Fund (WDI)), Master Margin Loan Agreement (Western Asset Middle Market Income Fund Inc.)
Binding Effect; Assignment. (a) This Agreement and the other Loan Documents to which Borrower is the Loan Parties are a Party party are and will be binding upon and inure to the benefit of Borrowerthe Loan Parties, the Administrative Agent, each of the Lenders, and their respective successors and assigns, except that Borrower the Loan Parties may not assign its their rights hereunder or thereunder or any interest herein or therein without the prior written consent of all the Lenders, and any purported assignment without such consent shall be null and void. Each Lender represents that it is not acquiring its Note with a view to the distribution thereof within the meaning of the Securities Act of 1933, as amended (subject to any requirement that disposition of such Note must be within the control of such Lender). Any Lender may at any time pledge its Note Notes or any other instrument evidencing its rights as a Lender under this Agreement to a Federal Reserve Bank, but no such pledge shall release that Lender from its obligations hereunder or grant to such Federal Reserve Bank the rights of a Lender hereunder absent foreclosure of such pledge.
(b) From time to time following the Closing Date, each Lender may assign to one or more Eligible Assignees all or any portion of its rights and obligations under this Agreement (including all or a portion of its Commitment, the Advances owing to it and the Note or Notes held by it); provided that, subject to subsection (f) below, that (i) such Eligible Assignee, if not then a Lender or an Affiliate of the assigning Lender, shall be approved require approval by the Administrative Agent and Borrower (if no Event of Default then exists) Parent (neither of which approvals shall be unreasonably withheld or delayed), (ii) such assignment shall be evidenced by an a Commitment Assignment and Acceptance, a copy of which which, together with any Notes subject to such assignment, shall be furnished to the Administrative Agent as hereinbelow provided, (iii) except in the case of an assignment to an Affiliate of the assigning Lender, to another Lender or of the entire remaining rights and obligations Commitments of the assigning Lender under this AgreementLender, the assignment shall not assign a portion share of such assigning Lender’s the Commitments and/or Advances owing to such assigning Lender that is equivalent to less than $3,000,00010,000,000, (iv) the assignment shall be of a constant, and not a varying, percentage of the Assignor’s rights and obligations under this Agreement, and (ivv) the effective date of any such assignment shall be as specified in the Commitment Assignment and Acceptance, but not earlier than the date which is five (5) Banking Days after the date the Administrative Agent has received the Commitment Assignment and AcceptanceAcceptance unless otherwise agreed by the Administrative Agent. Upon the effective date of such Commitment Assignment and Acceptance, the Eligible Assignee named therein shall be a Lender for all purposes of this Agreement, with the Commitments and/or Advances a Percentage and Commitment as therein (and herein, if such Eligible Assignee was already a Lender) set forth and, to the extent of such the portion of the Commitments and/or Advancesassigned, the assigning Lender shall be released from its further obligations under this Agreement. Borrower agrees that it shall execute and deliver (against delivery by the assigning Lender to Borrower of such Lender’s Notes) to such assignee Lender, Notes evidencing that assignee Lender’s Commitments and/or AdvancesCommitment, and to the assigning Lender, Notes evidencing the remaining balance of the Commitments and/or Advances retained by the assigning such Lender’s Commitment.
(c) By executing and delivering an a Commitments Assignment and Acceptance, the Eligible Assignee thereunder acknowledges and agrees that: (i) other than the representation Administrative Agent and warranty that it is the legal and beneficial owner of the rights and obligations hereunder being assigned thereby free and clear of any adverse claim, the assigning Lender has not made no any 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 or sufficiency of this Agreement or any other Loan Document; (ii) the assigning Administrative Agent and the Assigning Lender has not made no any representation or warranty and assumes no responsibility with respect to the financial condition of Borrower the Loan Parties or the performance by Borrower the Loan Parties of the Obligations; (iii) it has received a copy of this AgreementAgreement and the other Loan Documents, together with copies of the most recent financial statements delivered pursuant to Section 7.1 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Commitments Assignment and Acceptance; (iv) it will, independently and without reliance upon the Administrative Agent or any Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) it appoints and authorizes the Administrative Agent to take such action and to exercise such powers under this Agreement as are delegated to the Administrative Agent by this Agreement; and (vi) 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.
(d) The Administrative Agent shall maintain at the Administrative Agent’s Office a copy of each Commitment Assignment and Acceptance delivered to it and a register (the “Register”) of the names and address of each of the Lenders and the Pro Rata Share of the Commitments Percentage and Commitment amounts held by each Lender, giving effect to each Commitment Assignment and Acceptance. The Register shall be available during normal business hours for inspection by Borrower or any Lender upon reasonable prior notice to the Administrative Agent. After receipt of a completed Commitment Assignment and Acceptance executed by any Lender and an Eligible AssigneeAssignee and the Notes subject to such assignment, and receipt of an assignment fee of $3,500 from such Lender or Eligible Assignee, the Administrative Agent shall, promptly following the effective date thereof, upon the request of any party, provide to Borrower and the Lenders a revised Schedule 1.1 giving effect thereto. Borrower, the Administrative Agent and the Lenders shall deem and treat the Persons listed as Lenders in the Register as the holders and owners of the Pro Rata Shares of the Revolving Facility Commitments listed therein for all purposes hereof, and no assignment or transfer of any Lender’s rights and obligations hereunder such Commitment shall be effective, in each case unless and until an a Commitment Assignment and Acceptance effecting the assignment or transfer thereof shall have been accepted by the Administrative Agent and recorded in the Register as provided above. Prior to such recordation, all amounts owed with respect to the applicable Pro Rata Share of the Revolving Facility Commitments shall be owed to the Lender listed in the Register as the owner thereof, and any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is listed in the Register as a Lender shall be conclusive and binding on any subsequent holder, assignee or transferee of the corresponding Pro Rata Share of the Revolving Facilitysuch Commitments.
(e) Each Lender may from time to time grant participations to one or more banks or other financial institutions (including another Lender but excluding an Employee Plan) in or to all or a portion of its rights and/or obligations under this AgreementCommitments; provided, however, that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) the participating banks or other financial institutions shall not be a Lender hereunder for any purpose except, if the participation agreement so provides, for the purposes of Sections 3.53.7, 3.63.8, 11.11 and 11.21 11.22 but only to the extent that the cost of such benefits to Borrower does not exceed the cost which Borrower would have incurred in respect of the Lender granting such participation absent the participation, (iv) Borrower, the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement, (v) the participation interest shall be expressed as a percentage of the granting Lender’s Pro Rata Share of the Revolving Facility Commitment as it they then exists exist and shall not restrict an increase in the Revolving Facility (afford such participant any rights or the aggregate Commitments pertaining thereto), or in the granting Lender’s rights and obligations hereunder, so long as the amount of the participation interest is not affected thereby and (vi) the consent of the holder of such participation interest shall not be required for amendments or waivers of provisions of privileges under the Loan Documents other than those which except as provided in clause (A) extend any Amortization Date, any applicable Maturity Date or any other date upon which any payment of money is due to the Lenders, (B) reduce the rate of interest on the Notes, any fee or any other monetary amount payable to the Lenders, (C) reduce the amount of any installment of principal due under the Notes, or (D) release any Guarantor from its Guaranty.
(f) Borrower agrees that upon the occurrence and during the continuance of any Event of Default, each Lender shall be entitled to assign its rights hereunder and under the Loan Documents, or grant participation interests in its rights under this Agreement and the Loan Documents, to any Person, in whole or in any part thereof, notwithstanding any provisions contained herein (including those set forth in subsection (biii) above) or in any other Loan Document to the contrary, except that, other than (i) assignments by a Lender to an Affiliate of such Lender or to another Lender or (ii) pledges described in the last sentence of subsection (a) above, no assignment shall be made without the approval of the Administrative Agent.
Appears in 2 contracts
Samples: Unsecured Credit Agreement (BioMed Realty L P), Unsecured Credit Agreement (BioMed Realty Trust Inc)
Binding Effect; Assignment. (a) 11.10.1 This Agreement Agreement, the Notes and the other Loan Documents to which Borrower is a Party will shall be binding upon and shall inure to the benefit of Borrower, the Administrative Agent, each of the Lenders, parties hereto and thereto and their respective successors and assigns, except that no Borrower may not nor FSI shall assign its rights hereunder or thereunder or any interest herein or therein without the prior written consent of all the Lenderseach Lender. Each Lender represents shall have the right in accordance with this Section 11.10 (a) to sell and assign to any Eligible Assignee all or any portion of its interest (provided that it is any such partial assignment shall not acquiring be for a principal amount of less than Five Million Dollars ($5,000,000)) under this Agreement, its Note with a view respective Notes and the other Loan Documents, subject to the distribution thereof within prior written consent of the meaning affected Borrower, which consent shall not be unreasonably withheld, and (b) to grant any participation or other interest herein or therein, except that each potential participant to which a Lender intends to grant any rights under Sections 2.9, 2.10, 5.1 or 10.2 shall be subject to the prior written consent of the affected Borrower, which consent shall not be unreasonably withheld; provided, however, that no such sale, assignment or participation grant shall result in requiring registration under the Securities Act of 1933, as amended (subject to amended, or qualification under any requirement that disposition of such Note must be within the control of such Lender). Any Lender may at any time pledge its Note or any other instrument evidencing its rights as a Lender under this Agreement to a Federal Reserve Bank, but no such pledge shall release that Lender from its obligations hereunder or grant to such Federal Reserve Bank the rights of a Lender hereunder absent foreclosure of such pledgestate securities law.
(b) From time 11.10.2 Subject to time following the Closing Datelimitations of this Section 11.10.2, each Lender may assign sell and assign, from time to one or more Eligible Assignees time, all or any portion of its rights and obligations under this Agreement (including all or a portion Pro Rata Share of the Commitments to any of its CommitmentAffiliates or, with the Advances owing approval of the affected Borrower and FSI (which approval shall not be unreasonably withheld), to it and the Note or Notes held by it); provided thatany other financial institution acceptable to Agent, subject to subsection (f) below, (i) the assumption by such Eligible Assignee, if not then a Lender or an Affiliate assignee of the assigning Lender, shall be approved by share of the Administrative Agent and Borrower (neither of which approvals shall be unreasonably withheld Commitments so assigned. The assignment to such Affiliate or delayed), (ii) such assignment other financial institution shall be evidenced by an Assignment and Acceptance in the form of Exhibit G ("Assignment and Acceptance") executed by the assignor Lender (hereinafter from time to time referred to as the "Assignor Lender") and such Affiliate or other financial institution (which, upon such assignment shall become a Lender hereunder (hereinafter from time to time referred to as the "Assignee Lender")). The Assignment and Acceptance need not include any of the economic or financial terms upon which such Assignee Lender receives the assignment from the Assignor Lender, and such terms need not be disclosed to or approved by such Borrower or FSI; provided only that such terms do not diminish the obligations undertaken by such Assignee Lender in the Assignment and Acceptance or increase the obligations of Borrowers or FSI under this Agreement. Upon execution of such Assignment and Acceptance, a copy (a) the definition of which "Commitments" in Section 1 hereof and the Pro Rata Shares set forth therein shall be furnished deemed to be amended to reflect each Lender's share of the Commitments, after giving effect to the Administrative Agent assignment and (b) the Assignee Lender shall, from the effective date of the Assignment And Acceptance, be subject to all of the obligations, and entitled to all of the rights, of a Lender hereunder, except as hereinbelow provided, (iii) except may be expressly provided to the contrary in the case Assignment and Acceptance. To the extent the obligations hereunder of an the Assignor Lender are assumed by the Assignee Lender, the Assignor Lender shall be relieved of such obligations. Upon the assignment of any interest by any Assignor Lender pursuant to this Section 11.10.2, such Assignor Lender agrees to supplement Schedule 1.1 to show the date of such assignment, the Assignor Lender, the Assignee Lender, the Assignee Lender's address for notice purposes and the amount of the Commitments so assigned. In connection and as a condition to each assignment hereunder, the Assignor Lender agrees to pay or to cause the Assignee Lender to pay to Agent a processing fee of $3,500; provided that no processing fee shall be charged for any assignment to an Affiliate of the assigning Lender, to another a Lender or a Lender Affiliate.
11.10.3 Subject to the limitations of this Section 11.10.3, any Lender may also grant, from time to time, participation interests in the entire remaining rights and obligations interests of the assigning such Lender under this Agreement, the assignment Notes and the other Loan Documents to any other financial institution without notice to, or approval of, any Borrower or FSI. The grant of such a participation interest shall be on such terms as the granting Lender determines are appropriate, provided only that (a) the holder of such participation interest shall not assign a portion of such assigning Lender’s Commitments and/or Advances owing to such assigning Lender that is equivalent to less than $3,000,000, and (iv) the effective date of have any such assignment shall be as specified in the Assignment and Acceptance, but not earlier than the date which is five (5) Banking Days after the date the Administrative Agent has received the Assignment and Acceptance. Upon the effective date of such Assignment and Acceptance, the Eligible Assignee named therein shall be a Lender for all purposes of this Agreement, with the Commitments and/or Advances therein set forth and, to the extent of such Commitments and/or Advances, the assigning Lender shall be released from its further obligations under this Agreement. Borrower agrees that it shall execute and deliver (against delivery by the assigning Lender to Borrower of such Lender’s Notes) to such assignee Lender, Notes evidencing that assignee Lender’s Commitments and/or Advances, and to the assigning Lender, Notes evidencing the remaining balance of the Commitments and/or Advances retained by the assigning Lender.
(c) By executing and delivering an Assignment and Acceptance, the Eligible Assignee thereunder acknowledges and agrees that: (i) other than the representation and warranty that it is the legal and beneficial owner of the rights and obligations hereunder being assigned thereby free and clear of any adverse claim, the assigning a Lender has made 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 or sufficiency of this Agreement or any other Loan Document; (ii) the assigning Lender has made no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance by Borrower of the Obligations; (iii) it has received a copy of this Agreement, together with copies of the most recent financial statements delivered pursuant to Section 7.1 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) it will, independently and without reliance upon the Administrative Agent or any Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) it appoints and authorizes the Administrative Agent to take such action and to exercise such powers under this Agreement as are delegated to the Administrative Agent by this Agreement; and (vi) 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.
(d) The Administrative Agent shall maintain at the Administrative Agent’s Office a copy of each Assignment and Acceptance delivered to it and a register (the “Register”) of the names and address of each of the Lenders and the Pro Rata Share of the Commitments held by each Lender, giving effect to each Assignment and Acceptance. The Register shall be available during normal business hours for inspection by Borrower or any Lender upon reasonable prior notice to the Administrative Agent. After receipt of a completed Assignment and Acceptance executed by any Lender and an Eligible Assignee, and receipt of an assignment fee of $3,500 from such Lender or Eligible Assignee, the Administrative Agent shall, promptly following the effective date thereof, provide to Borrower and the Lenders a revised Schedule 1.1 giving effect thereto. Borrower, the Administrative Agent and the Lenders shall deem and treat the Persons listed as Lenders in the Register as the holders and owners of the Pro Rata Shares of the Revolving Facility listed therein for all purposes hereof, and no assignment or transfer of any Lender’s rights and obligations hereunder shall be effective, in each case unless and until an Assignment and Acceptance effecting the assignment or transfer thereof shall have been accepted by the Administrative Agent and recorded in the Register as provided above. Prior to such recordation, all amounts owed with respect to the applicable Pro Rata Share of the Revolving Facility shall be owed to the Lender listed in the Register as the owner thereof, and any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is listed in the Register as a Lender shall be conclusive and binding on any subsequent holder, assignee or transferee of the corresponding Pro Rata Share of the Revolving Facility.
(e) Each Lender may from time to time grant participations to one or more banks or other financial institutions in or to all or a portion of its rights and/or obligations under this Agreement; provided, however, that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) the participating banks or other financial institutions shall not be a Lender hereunder for any purpose except, if the participation agreement so expressly provides, for the purposes of rights under Sections 3.52.9, 3.62.10, 11.11 5.1 and 11.21 but only to the extent that the cost of such benefits to Borrower does not exceed the cost which Borrower would have incurred in respect of the Lender granting such participation absent the participation10.2, (iv) Borrower, the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement, (v) the participation interest shall be expressed as a percentage of the granting Lender’s Pro Rata Share of the Revolving Facility as it then exists and shall not restrict an increase in the Revolving Facility (or the aggregate Commitments pertaining thereto), or in the granting Lender’s rights and obligations hereunder, so long as the amount of the participation interest is not affected thereby and (vib) the consent of the holder of such a participation interest shall not be required for amendments or waivers of provisions of the Loan Documents other than than, if the participation agreement expressly provides, those which (Ai) extend increase the monetary amount of any Amortization Date, any applicable Maturity Date or any other date upon which any payment of money is due to the LendersCommitment, (Bii) reduce the rate of interest on the Notes, decrease any fee or any other monetary amount payable to the Lenders, (C) reduce the amount of any installment of principal due under the Notes, or (Diii) release extend the date upon which any Guarantor from its Guarantymonetary amount is payable to Lenders.
(f) Borrower agrees that upon the occurrence and during the continuance of any Event of Default, each Lender shall be entitled to assign its rights hereunder and under the Loan Documents, or grant participation interests in its rights under this Agreement and the Loan Documents, to any Person, in whole or in any part thereof, notwithstanding any provisions contained herein (including those set forth in subsection (b) above) or in any other Loan Document to the contrary, except that, other than (i) assignments by a Lender to an Affiliate of such Lender or to another Lender or (ii) pledges described in the last sentence of subsection (a) above, no assignment shall be made without the approval of the Administrative Agent.
Appears in 2 contracts
Samples: Warehousing Credit Agreement (Professional Lease Management Income Fund I LLC), Warehousing Credit Agreement (PLM Equipment Growth Fund V)
Binding Effect; Assignment. (a) 12.8.1 This Agreement and the other Loan Documents to which Borrower is a Party party will be binding upon and inure to the benefit of Borrower, the Administrative Agent, each of the Lenders, and their respective successors and assigns, except that Borrower may not assign its rights hereunder or thereunder or any interest herein or therein without the prior written consent of all the Lenders. Each Lender represents that it is not acquiring its Note with a view to the distribution thereof within the meaning of the Securities Act of 1933, as amended (subject to any requirement that disposition of such Note must be within the control of such Lender). Any Lender may at any time pledge its Note or any other instrument evidencing its rights as a Lender lender under this Agreement to a Federal Reserve Bank, but no such pledge shall release that Lender lender from its obligations hereunder or grant to such Federal Reserve Bank the rights of a Lender hereunder absent foreclosure of such pledge.
(b) 12.8.2 From time to time following the Closing Date, each Lender may assign to one or more Eligible Assignees all or any portion of its rights and obligations under this Agreement (including all or a portion Pro Rata Share of its the Revolving Commitment, the Advances owing to it and the Note or Notes held by it); provided that, subject to subsection (f) below, that (i) such Eligible Assignee, if not then a Lender or an Affiliate of the assigning Lender, shall be approved by the Administrative Agent and Borrower (neither and, provided no Default or Event of Default then exists, Borrower, which approvals approval(s) shall not be unreasonably withheld withheld, conditioned or delayed), ; (ii) such assignment shall be evidenced by an a Commitment Assignment and Acceptance, a copy of which shall be furnished to the Administrative Agent as hereinbelow provided, ; (iii) except in the case of an assignment (a) to an Affiliate of the assigning Lender, Lender or to another Lender or (b) of the entire remaining rights and obligations Revolving Commitment of the assigning Lender under this AgreementLender, the assignment shall not assign a portion Pro Rata Share of such assigning Lender’s Commitments and/or Advances owing to such assigning Lender the Revolving Commitment that is equivalent to less than $3,000,000, and 5,000,000.00; (iv) the effective date of any such assignment shall be as specified in the Commitment Assignment and Acceptance, but not earlier than the date which is five (5) Banking Business Days after the date the Administrative Agent has received the Commitment Assignment and Acceptance; and (v) such Eligible Assignee shall execute an Alternative Dispute Resolution Agreement, in form and substance satisfactory to Agent. Upon the effective date of such Commitment Assignment and Acceptance, the Eligible Assignee named therein shall be a Lender for all purposes of this Agreement, with the Commitments and/or Advances Pro Rata Share of the Revolving Commitment therein set forth and, to the extent of such Commitments and/or AdvancesPro Rata Share, the assigning Lender shall be released from its further obligations under this Agreement. Borrower agrees that it shall execute and deliver (against delivery by the assigning Lender to Borrower of such Lender’s Notesits Revolving Note(s)) to such assignee Lender, Notes Revolving Note(s) evidencing that assignee Lender’s Commitments and/or Advances's Pro Rata Share of the Revolving Commitment, and to the assigning Lender, Notes Revolving Note(s) evidencing the remaining balance of the Commitments and/or Advances Pro Rata Share retained by the assigning Lender.
(c) By executing and delivering an Assignment and Acceptance, the Eligible Assignee thereunder acknowledges and agrees that: (i) other than the representation and warranty that it is the legal and beneficial owner of the rights and obligations hereunder being assigned thereby free and clear of any adverse claim, the assigning Lender has made 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 or sufficiency of this Agreement or any other Loan Document; (ii) the assigning Lender has made no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance by Borrower of the Obligations; (iii) it has received a copy of this Agreement, together with copies of the most recent financial statements delivered pursuant to Section 7.1 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) it will, independently and without reliance upon the Administrative Agent or any Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) it appoints and authorizes the Administrative Agent to take such action and to exercise such powers under this Agreement as are delegated to the Administrative Agent by this Agreement; and (vi) 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.
(d) The Administrative Agent shall maintain at the Administrative Agent’s Office a copy of each Assignment and Acceptance delivered to it and a register (the “Register”) of the names and address of each of the Lenders and the Pro Rata Share of the Commitments held by each Lender, giving effect to each Assignment and Acceptance. The Register shall be available during normal business hours for inspection by Borrower or any Lender upon reasonable prior notice to the Administrative Agent. After receipt of a completed Assignment and Acceptance executed by any Lender and an Eligible Assignee, and receipt of an assignment fee of $3,500 from such Lender or Eligible Assignee, the Administrative Agent shall, promptly following the effective date thereof, provide to Borrower and the Lenders a revised Schedule 1.1 giving effect thereto. Borrower, the Administrative Agent and the Lenders shall deem and treat the Persons listed as Lenders in the Register as the holders and owners of the Pro Rata Shares of the Revolving Facility listed therein for all purposes hereof, and no assignment or transfer of any Lender’s rights and obligations hereunder shall be effective, in each case unless and until an Assignment and Acceptance effecting the assignment or transfer thereof shall have been accepted by the Administrative Agent and recorded in the Register as provided above. Prior to such recordation, all amounts owed with respect to the applicable Pro Rata Share of the Revolving Facility shall be owed to the Lender listed in the Register as the owner thereof, and any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is listed in the Register as a Lender shall be conclusive and binding on any subsequent holder, assignee or transferee of the corresponding Pro Rata Share of the Revolving Facility.
(e) Each Lender may from time to time grant participations to one or more banks or other financial institutions in or to all or a portion of its rights and/or obligations under this Agreement; provided, however, that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) the participating banks or other financial institutions shall not be a Lender hereunder for any purpose except, if the participation agreement so provides, for the purposes of Sections 3.5, 3.6, 11.11 and 11.21 but only to the extent that the cost of such benefits to Borrower does not exceed the cost which Borrower would have incurred in respect of the Lender granting such participation absent the participation, (iv) Borrower, the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement, (v) the participation interest shall be expressed as a percentage of the granting Lender’s Pro Rata Share of the Revolving Facility as it then exists and shall not restrict an increase in the Revolving Facility (or the aggregate Commitments pertaining thereto), or in the granting Lender’s rights and obligations hereunder, so long as the amount of the participation interest is not affected thereby and (vi) the consent of the holder of such participation interest shall not be required for amendments or waivers of provisions of the Loan Documents other than those which (A) extend any Amortization Date, any applicable Maturity Date or any other date upon which any payment of money is due to the Lenders, (B) reduce the rate of interest on the Notes, any fee or any other monetary amount payable to the Lenders, (C) reduce the amount of any installment of principal due under the Notes, or (D) release any Guarantor from its Guaranty.
(f) Borrower agrees that upon the occurrence and during the continuance of any Event of Default, each Lender shall be entitled to assign its rights hereunder and under the Loan Documents, or grant participation interests in its rights under this Agreement and the Loan Documents, to any Person, in whole or in any part thereof, notwithstanding any provisions contained herein (including those set forth in subsection (b) above) or in any other Loan Document to the contrary, except that, other than (i) assignments by a Lender to an Affiliate of such Lender or to another Lender or (ii) pledges described in the last sentence of subsection (a) above, no assignment shall be made without the approval of the Administrative Agent.
Appears in 2 contracts
Samples: Loan and Security Agreement (Aerocentury Corp), Loan and Security Agreement (Aerocentury Corp)
Binding Effect; Assignment. (a) This Agreement and the other Loan Documents to which Borrower is a Party party will be binding upon and inure to the benefit of Borrower, the Administrative Agent, each of the Lenders, Lenders and their respective successors and assigns, except that that, Borrower may not assign its rights hereunder or thereunder or any interest herein or therein without the prior written consent of all the Lenders. Each Lender represents that it is not acquiring its Note with a view to the distribution thereof within the meaning of the Securities Act of 1933, as amended (subject to Lenders and any requirement that disposition of such Note must attempted assignment shall be within the control of such Lender)void. Any Lender may at any time pledge its Note or any other instrument evidencing its rights as a Lender under this Agreement to a Federal Reserve Bank, but no such pledge shall release that such Lender from its obligations hereunder or grant to such Federal Reserve Bank the rights of a Lender hereunder absent foreclosure of such pledge.
(b) From time to time following the Closing Date, each Lender may assign to one or more Eligible Assignees all or any portion of its rights and obligations under this Agreement (including all or a portion Commitment and/or Extensions of its Commitment, the Advances owing to it and the Note or Notes held by it)Credit; provided that, subject to subsection (f) below, that (i) such Eligible Assigneeassignment, if not then to a Lender or an Affiliate of the assigning Lender, shall be approved consented to by Borrower at all times other than during the existence of a Default or Event of Default and by Administrative Agent and Issuing Lender (which approval of Borrower (neither of which approvals shall not be unreasonably withheld or delayedwithheld), (ii) such assignment shall be evidenced by an Assignment and Acceptance, a copy of which a duly signed and completed Assignment and Acceptance shall be furnished delivered to the Administrative Agent as hereinbelow providedAgent, (iii) except in the case of an assignment (A) to an Affiliate of the assigning Lender, Lender or to another Lender or (B) of the entire remaining rights and obligations Commitment of the assigning Lender under this AgreementLender, the assignment portion of the Commitment assigned shall not assign a portion of such assigning Lender’s Commitments and/or Advances owing to such assigning Lender that is equivalent to be less than $3,000,000the Minimum Amount therefor, and (iv) the effective date of any such assignment shall be as specified in the Assignment and Acceptance, but not earlier than the date which is five (5) Banking Business Days after the date the Administrative Agent has received the Assignment and Acceptance. Upon any required consent by Administrative Agent, Issuing Lender and Borrower to such assignment and payment of the effective date of such Assignment and Acceptancerequisite fee described below, the Eligible Assignee assignee named therein shall be a Lender for all purposes of this Agreement, with the Commitments and/or Advances Pro Rata Share therein set forth and, to the extent of such Commitments and/or AdvancesPro Rata Share, the assigning Lender shall be released from its further obligations under this Agreement. Borrower agrees that it shall execute and deliver upon request (against delivery by the assigning Lender to Borrower of such Lender’s Notesany Note) to such assignee Lender, one or more Notes evidencing that such assignee Lender’s Commitments and/or AdvancesLoans, and to the assigning LenderLender if requested, one or more Notes evidencing the remaining balance of the Commitments and/or Advances Loans under any Commitment retained by the assigning Lender. Administrative Agent’s consent to any assignment shall not be deemed to constitute any representation or warranty by any Administrative Agent-Related Person as to any matter. For purposes hereof, each mutual fund that is an Affiliate of a Lender shall be deemed to be a single Eligible Assignee, whether or not such fund is managed by the same fund manager as other mutual funds that are Affiliates of the same Lender.
(c) By executing and delivering an Assignment and Acceptance, the Eligible Assignee thereunder acknowledges and agrees that: (i) other than the representation and warranty that it is the legal and beneficial owner of the rights and obligations hereunder being assigned thereby free and clear of any adverse claim, the assigning Lender has made 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 or sufficiency of this Agreement or any other Loan Document; (ii) the assigning Lender has made no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance by Borrower of the Obligations; (iii) it has received a copy of this Agreement, together with copies of the most recent financial statements delivered pursuant to Section 7.1 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) it will, independently and without reliance upon the Administrative Agent or any Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) it appoints and authorizes the Administrative Agent to take such action and to exercise such powers under this Agreement as are delegated to the Administrative Agent by this Agreement; and (vi) 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.
(d) The Administrative Agent shall maintain at the Administrative Agent’s Office a copy of each Assignment and Acceptance delivered to it and a register (the “Register”) of the names and address of each of the Lenders and the Pro Rata Share of the Commitments held by each Lender, giving effect to each Assignment and Acceptance. The Register shall be available during normal business hours for inspection by Borrower or any Lender upon reasonable prior notice to the Administrative Agent. After receipt of a completed Assignment and Acceptance executed by any Lender and an Eligible AssigneeAcceptance, and receipt of an assignment fee of $3,500 from such Lender or Eligible AssigneeAssignee (including in the case of assignments to Affiliates of assigning Lenders), the Administrative Agent shall, promptly following the effective date thereof, provide to Borrower and the Lenders a revised Schedule 1.1 10.02 giving effect thereto. Borrower, the Administrative Agent and the Lenders shall deem and treat the Persons listed as Lenders in the Register as the holders and owners of the Pro Rata Shares of the Revolving Facility listed therein for all purposes hereof, and no assignment or transfer of any Lender’s rights and obligations hereunder shall be effective, in each case unless and until an Assignment and Acceptance effecting the assignment or transfer thereof shall have been accepted by the Administrative Agent and recorded in the Register as provided above. Prior to such recordation, all amounts owed with respect to the applicable Pro Rata Share of the Revolving Facility shall be owed to the Lender listed in the Register as the owner thereof, and any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is listed in the Register as a Lender shall be conclusive and binding on any subsequent holder, assignee or transferee of the corresponding Pro Rata Share of the Revolving Facility.
(ed) Each Lender may from time to time time, without the consent of any other Person, grant participations to one or more banks or other financial institutions in or to Person (including another Lender) of all or a any portion of its rights and/or obligations under this AgreementPro Rata Share of its Commitment or Extensions of Credit; provided, however, that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) the participating banks or other financial institutions shall not be a Lender hereunder for any purpose except, if the participation agreement so provides, for the purposes of Sections 3.5, 3.6, 11.11 and 11.21 Section 3 (but only to the extent that the cost of such benefits to Borrower does not exceed the cost which Borrower would have incurred in respect of the such Lender granting such participation absent the participation) and subject to Sections 10.05 and 10.06, (iv) Borrower, the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement, (v) the participation interest shall be expressed as a percentage of the granting Lender’s Pro Rata Share of the Revolving Facility as it then exists and agreement shall not restrict an increase in the Revolving Facility (or the aggregate combined Commitments pertaining thereto), or in the granting Lender’s rights and obligations hereunderPro Rata Share, so long as the amount of the participation interest is not affected thereby thereby, and (vi) the consent of the holder of such participation interest shall not be required for amendments or waivers of provisions of the Loan Documents other than those Documents; provided, however, that the assigning Lender may, in any agreement with a participant, give such participant the right to consent to any matter which (A) extend any Amortization Date, any applicable extends the Maturity Date as to such participant or any other date upon which any payment of money is due to the Lenderssuch participant, (B) reduce reduces the rate of interest on the Notesowing to such participant, any fee or any other monetary amount payable owing to the Lenderssuch participant, or (C) reduce reduces the amount of any installment of principal due under owing to such participant. Any Lender that sells a participation to any Person that is a “foreign corporation, partnership or trust” within the Notes, or (D) release any Guarantor from meaning of the Code shall include in its Guaranty.
(f) participation agreement with such Person a covenant by such Person that such Person will comply with the provisions of Section 10.21 as if such Person were a Lender and provide that Administrative Agent and Borrower agrees that upon the occurrence and during the continuance of any Event of Default, each Lender shall be entitled to assign its rights hereunder and under the Loan Documents, or grant participation interests in its rights under this Agreement and the Loan Documents, to any Person, in whole or in any part thereof, notwithstanding any provisions contained herein (including those set forth in subsection (b) above) or in any other Loan Document to the contrary, except that, other than (i) assignments by a Lender to an Affiliate third party beneficiaries of such Lender or to another Lender or (ii) pledges described in the last sentence of subsection (a) above, no assignment shall be made without the approval of the Administrative Agentcovenant.
Appears in 2 contracts
Samples: Credit Agreement (Quantum Corp /De/), Credit Agreement (Quantum Corp /De/)
Binding Effect; Assignment. (a) This Agreement and the other Loan Documents to which Borrower is a Party party will be binding upon and inure to the benefit of Borrower, the Administrative Agent, each of the Lenders, Lenders and their respective successors and assigns, except that that, Borrower may not not, except as permitted by Section 7.03, assign its rights hereunder or thereunder or any interest herein or therein without the prior written consent of all the Lenders. Each Lender represents that it is not acquiring its Note with a view to the distribution thereof within the meaning of the Securities Act of 1933, as amended (subject to Lenders and any requirement that disposition of such Note must attempted assignment shall be within the control of such Lender)void. Any Lender may at any time pledge its a Note or any other instrument evidencing its rights as a Lender under this Agreement (including to a Federal Reserve BankBank or other central bank having jurisdiction over such Lender or, if such Lender is a fund, to any trustee or to any other representative of holders of obligations owed or securities issued by such fund as security for such obligations or securities) but no such pledge shall release that such Lender from its obligations hereunder or grant to any such Federal Reserve Bank pledgee the rights of a Lender hereunder absent foreclosure of such pledge, and any transfer to any Person upon the enforcement of such pledge shall be subject to this Section 10.04.
(b) From time to time following the Closing Datedate of this Agreement, each Lender may assign to one or more Eligible Assignees all or any portion of its rights and obligations under this Agreement (including all or a portion of its Commitment, the Advances owing to it and the Note other Loan Documents to one or Notes held by it); provided thatmore Eligible Assignees, subject to subsection (f) below, other than (i) such Eligible Assignee, if not then a Lender or an Affiliate of the assigning Lender, shall be approved by the Administrative Agent Borrower and Borrower (neither of which approvals shall be unreasonably withheld or delayed), its Subsidiaries and (ii) natural persons; provided that such assignment shall be evidenced by subject to Borrower’s consent (which shall not be unreasonably withheld) at all times other than during the existence of an Assignment Event of Default arising under Section 8.1(a), Section 8.1(b) or Section 8.1(i) and Acceptancethe consent of Administrative Agent and Issuing Lenders (which consents shall not be unreasonably withheld); provided that the consent of Borrower shall not be required with respect to an assignment to another Lender unless such assignment, would result in the Revolving Commitment of such assignee and its Affiliates exceeding 15% of the aggregate Revolving Commitments, as applicable, then outstanding. No such assignment shall become effective unless and until a copy of which a duly signed and completed Assignment and Assumption shall be furnished delivered to the Administrative Agent as hereinbelow provided, (iii) except Agent. Except in the case of an assignment (A) to an Affiliate another Lender or (B) of the entire remaining Revolving Commitment of the assigning Lender, to another Lender or of the entire remaining rights and obligations of the assigning Lender under this Agreement, the such assignment shall be in an aggregate principal amount not assign a portion of such assigning Lender’s Commitments and/or Advances owing to such assigning Lender that is equivalent to less than $3,000,000, the Minimum Amount therefor without the consent of Borrower and (iv) the Administrative Agent. The effective date of any such assignment shall be as specified in the Assignment and AcceptanceAssumption, but not earlier than the date which is five (5) Banking Business Days after the date the Administrative Agent has received the Assignment and AcceptanceAssumption. Upon obtaining any consent required as set forth this paragraph, any forms required by Section 10.20 and payment of the effective date of such Assignment and Acceptancerequisite fee described below, the Eligible Assignee assignee named therein shall be a Lender for all purposes of this Agreement, with the Commitments and/or Advances therein set forth and, Agreement to the extent of the Assigned Interest (as defined in such Commitments and/or AdvancesAssignment and Assumption), and, except for rights and obligations which by their terms survive termination of any Revolving Commitments, the assigning Lender shall be released from its any further obligations under this AgreementAgreement to the extent of such Assigned Interest. Upon request, Borrower agrees that it shall execute and deliver (against delivery by new or replacement Notes to the assigning Lender and the assignee Lender to Borrower of such Lenderevidence Loans made by them. Administrative Agent’s Notes) consent to such assignee Lender, Notes evidencing that assignee Lender’s Commitments and/or Advances, any assignment shall not be deemed to constitute any representation or warranty by any Administrative Agent-Related Person as to any matter. Administrative Agent shall record the information contained in the Assignment and to Assumption in the assigning Lender, Notes evidencing the remaining balance of the Commitments and/or Advances retained by the assigning LenderRegister.
(c) By executing and delivering an Assignment and Acceptance, the Eligible Assignee thereunder acknowledges and agrees that: (i) other than the representation and warranty that it is the legal and beneficial owner of the rights and obligations hereunder being assigned thereby free and clear of any adverse claim, the assigning Lender has made 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 or sufficiency of this Agreement or any other Loan Document; (ii) the assigning Lender has made no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance by Borrower of the Obligations; (iii) it has received a copy of this Agreement, together with copies of the most recent financial statements delivered pursuant to Section 7.1 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) it will, independently and without reliance upon the Administrative Agent or any Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) it appoints and authorizes the Administrative Agent to take such action and to exercise such powers under this Agreement as are delegated to the Administrative Agent by this Agreement; and (vi) 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.
(d) The Administrative Agent shall maintain at the Administrative Agent’s Office a copy of each Assignment and Acceptance delivered to it and a register (the “Register”) of the names and address of each of the Lenders and the Pro Rata Share of the Commitments held by each Lender, giving effect to each Assignment and Acceptance. The Register shall be available during normal business hours for inspection by Borrower or any Lender upon reasonable prior notice to the Administrative Agent. After receipt of a completed Assignment and Acceptance executed by any Lender and an Eligible AssigneeAssumption, and receipt of an assignment fee of $3,500 from such assignee and/or such assigning Lender or Eligible Assignee(including in the case of assignments to Affiliates of assigning Lenders), the Administrative Agent shall, shall promptly following accept such Assignment and Assumption and record the information contained therein in the Register on the effective date thereof, provide to Borrower and the Lenders a revised Schedule 1.1 giving effect determined pursuant thereto. Borrower, the Administrative Agent and the Lenders shall deem and treat the Persons listed as Lenders in the Register as the holders and owners of the Pro Rata Shares of the Revolving Facility listed therein for all purposes hereof, and no assignment or transfer of any Lender’s rights and obligations hereunder shall be effective, in each case unless and until an Assignment and Acceptance effecting the assignment or transfer thereof shall have been accepted by the Administrative Agent and recorded in the Register as provided above. Prior to such recordation, all amounts owed with respect to the applicable Pro Rata Share of the Revolving Facility shall be owed to the Lender listed in the Register as the owner thereof, and any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is listed in the Register as a Lender shall be conclusive and binding on any subsequent holder, assignee or transferee of the corresponding Pro Rata Share of the Revolving Facility.
(ed) Each Lender may from time to time time, without the consent of any other Person, grant participations to one or more banks or other financial institutions Persons that are Eligible Assignees (including another Lender but excluding (x) Borrower and its Subsidiaries and (y) natural persons) in or to all or a any portion of its rights and/or obligations Loans, Revolving Commitments, Extensions of Credit or any other interest of such Lender hereunder and under this Agreementthe other Loan Documents; provided, however, that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) the participating banks bank or other financial institutions institution shall not be a Lender hereunder for any purpose except, if the participation agreement so provides, for the purposes of Sections 3.5, 3.6, 11.11 the increased cost provisions (including yield protection and 11.21 taxes) of Section 3 (but only to the extent that the cost of such benefits to Borrower does not exceed the cost which Borrower would have incurred in respect of the such Lender granting such participation absent the participation) and for purposes of Section 10.06, (iv) Borrower, the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement, and (v) the participation interest shall be expressed as a percentage of the granting Lender’s Pro Rata Share of the Revolving Facility as it then exists and shall not restrict an increase in the Revolving Facility (or the aggregate Commitments pertaining thereto), or in the granting Lender’s rights and obligations hereunder, so long as the amount of the participation interest is not affected thereby and (vi) the consent of the holder of such participation interest shall not be required for amendments or waivers of provisions of the Loan Documents other than those Documents; provided, however, that the assigning Lender may, in any agreement with a participant, give such participant the right to consent (as between the assigning Lender and such participant) to any matter which (A) extend any Amortization Date, any applicable Maturity extends the Revolving Termination Date as to such participant or any other date upon which any payment of money is due to the Lenderssuch participant, (B) reduce reduces the rate of interest on the Notes, owing to such participant or any fee or any other monetary amount payable owing to the Lenderssuch participant, or (C) reduce reduces the amount of any installment scheduled payment of principal due under owing to such participant. Any Lender that sells a participation to any Person that is a “foreign corporation, partnership or trust” within the Notes, meaning of the Code shall include in its participation agreement with such Person a covenant by such Person that such Person will comply with the provisions of Section 10.20 as if such Person were a Lender and provide that Administrative Agent and Borrower shall be third party beneficiaries of such covenant. Each Lender that sells or grants a participation shall (Da) release any Guarantor withhold or deduct from its Guaranty.
(f) Borrower agrees that upon each payment to the occurrence and during holder of such participation the continuance amount of any Event tax required under applicable law to be withheld or deducted from such payment and not withheld or deducted therefrom by Borrower or Administrative Agent, (b) pay the tax so withheld or deducted by it to the appropriate taxing authority in accordance with applicable law and (c) indemnify Borrower and Administrative Agent for any losses, cost and expenses that they may incur as a result of Defaultany failure to so withhold or deduct and pay such tax. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of Borrower, maintain a register on which it enters the name and address of each Lender shall be entitled to assign its rights hereunder participant and the principal amounts (and stated interest) of each participant’s interest in the Loans or other obligations under the Loan DocumentsDocuments (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any participant or any information relating to a participant’s interest in any Revolving Commitments, Extensions of Credit or grant its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such Revolving Commitments, Extensions of Credit or other obligation is in registered form under Section 5f.103-1 (c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation interests in its rights under for all purposes of this Agreement and the Loan Documents, to any Person, in whole or in any part thereof, notwithstanding any provisions contained herein (including those set forth in subsection (b) above) or in any other Loan Document notice to the contrary. For the avoidance of doubt, except that, other than Administrative Agent (i) assignments by a Lender to an Affiliate of such Lender or to another Lender or (ii) pledges described in the last sentence of subsection (a) above, no assignment shall be made without the approval of the its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
Appears in 2 contracts
Binding Effect; Assignment. (a) This Agreement and the other Loan Documents to which Borrower is a Party will shall be binding upon and inure to the benefit of Borrower, the Administrative Agent, each of the Lenders, Parties and their respective successors and permitted assigns, except that Borrower may not assign its rights hereunder or thereunder or any interest herein or therein without the prior written consent of all the Lenders. Each Lender represents that it is not acquiring its Note with a view to the distribution thereof within the meaning of the Securities Act of 1933, as amended (subject to any requirement that disposition of such Note must be within the control of such Lender). Any Lender may at any time pledge its Note or any other instrument evidencing its rights as a Lender under this Agreement to a Federal Reserve Bank, but no such pledge shall release that Lender from its obligations hereunder or grant to such Federal Reserve Bank the rights of a Lender hereunder absent foreclosure of such pledge.
(b) From time Owner is not authorized to time following and shall not directly or indirectly (through an equity sale, merger or other transaction) sell, assign or otherwise transfer its interest in this Agreement, in whole or in part, other than in full compliance with Paragraph H of Exhibit D to the Closing DateDefinitive Agreement, each Lender may assign to one or more Eligible Assignees all or any portion of its rights and obligations under in which case this Agreement (including all or a portion of its Commitment, the Advances owing shall be assigned to it and the Note or Notes held by it); provided that, subject to subsection (f) below, (i) such Eligible Assignee, if not then a Lender or an Affiliate any Person that so acquires ownership of the assigning LenderTransmission Facilities.
(c) Contractor shall not assign or otherwise transfer its interest in this Agreement without the prior (written) consent of Owner, which shall be approved by the Administrative Agent and Borrower (neither of which approvals shall not be unreasonably withheld or delayed); provided, however, Contractor may assign, without recourse, this Agreement without the consent of Owner to (i) an Affiliate; (ii) such assignment shall be evidenced by an Assignment and Acceptance, a copy any Person acquiring all or substantially all of which shall be furnished to the Administrative Agent as hereinbelow provided, electric transmission assets of Contractor; and/or (iii) except any Person providing operations and maintenance services to Contractor Facilities located in the case vicinity of the Transmission Facilities. Contractor also may assign this Agreement without the consent of Owner to any Person if Contractor remains unconditionally liable for all of the obligations and other Liabilities of such transferee hereunder notwithstanding such transfer. Any and all rights and/or obligations of Contractor under this Agreement may be exercised and/or performed by NUSCO or any other Affiliate of Contractor acting as agent for Contractor, and such performance shall not constitute an assignment and/or assumption of Liability by NUSCO and/or any such Affiliate.
(d) Any purported direct or indirect sale, assignment or other transfer of any interest, in whole or in part, in violation of this Section 13.2 shall be null, void and of no force or effect.
(e) Notwithstanding anything to an Affiliate the contrary in this Section 13.2 or elsewhere in this Agreement and without limiting Contractor's discretion with respect to any proposed transfer, unless otherwise directed by Contractor, this Agreement shall be assigned to any purchaser or other transferee of the assigning Lender, to another Lender or of the entire remaining rights and obligations of the assigning Lender under this Agreement, the assignment shall not assign a portion of such assigning Lender’s Commitments and/or Advances owing to such assigning Lender that is equivalent to less than $3,000,000, and (iv) the effective date of any such assignment shall be as specified in the Assignment and Acceptance, but not earlier than the date which is five (5) Banking Days after the date the Administrative Agent has received the Assignment and Acceptance. Upon the effective date of such Assignment and Acceptance, the Eligible Assignee named therein shall be a Lender for all purposes of this Agreement, with the Commitments and/or Advances therein set forth andTransmission Facilities, to the extent of such Commitments and/or Advancesthe transferred interest, for the assigning Lender shall be released from its further obligations under this Agreement. Borrower agrees that it shall execute and deliver (against delivery by the assigning Lender to Borrower of such Lender’s Notes) to such assignee Lender, Notes evidencing that assignee Lender’s Commitments and/or Advances, and to the assigning Lender, Notes evidencing the remaining balance remainder of the Commitments and/or Advances retained by the assigning Lender.
(c) By executing Term under an assumption and delivering an Assignment and Acceptance, the Eligible Assignee thereunder acknowledges and agrees that: (i) other than the representation and warranty that it is the legal and beneficial owner of the rights and obligations hereunder being assigned thereby free and clear of any adverse claim, the assigning Lender has made 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 or sufficiency of this Agreement or any other Loan Document; (ii) the assigning Lender has made no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance by Borrower of the Obligations; (iii) it has received a copy of this Agreement, together with copies of the most recent financial statements delivered assignment agreement pursuant to Section 7.1 and such other documents and information as it has deemed appropriate which the transferee agrees to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) it will, independently and without reliance upon the Administrative Agent or any Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) it appoints and authorizes the Administrative Agent to take such action and to exercise such powers under this Agreement as are delegated to the Administrative Agent by this Agreement; and (vi) it will perform in accordance with their terms all of the obligations which be bound by the terms of this Agreement are required in a form acceptable to be performed by it as a Lender.
(d) The Administrative Agent shall maintain at Contractor. Without limiting the Administrative Agent’s Office a copy of each Assignment and Acceptance delivered to it and a register (the “Register”) generality of the names and address of each of the Lenders and the Pro Rata Share of the Commitments held by each Lenderforegoing, giving effect to each Assignment and Acceptance. The Register shall be available during normal business hours for inspection by Borrower or any Lender upon reasonable prior notice to the Administrative Agent. After receipt of a completed Assignment and Acceptance executed by any Lender and an Eligible Assignee, and receipt of an assignment fee of $3,500 from such Lender or Eligible Assignee, the Administrative Agent shall, promptly following the effective date thereof, provide to Borrower and the Lenders a revised Schedule 1.1 giving effect thereto. Borrower, the Administrative Agent and the Lenders shall deem and treat the Persons listed as Lenders in the Register as the holders and owners of the Pro Rata Shares of the Revolving Facility listed therein for all purposes hereof, and no assignment or transfer of any Lender’s rights and obligations hereunder shall be effective, in each case unless and until an Assignment and Acceptance effecting the assignment or transfer thereof shall have been accepted by the Administrative Agent and recorded in the Register as provided above. Prior to such recordation, all amounts owed with respect to the applicable Pro Rata Share of the Revolving Facility shall be owed to the Lender listed in the Register as the owner thereof, and any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is listed in the Register as a Lender shall be conclusive and binding on any subsequent holder, assignee or transferee of the corresponding Pro Rata Share of the Revolving Facility.
(e) Each Lender may from time to time grant participations to one or more banks or other financial institutions in or to all or a portion of its rights and/or obligations under this Agreement; provided, however, that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) the participating banks or other financial institutions shall not be a Lender hereunder for any purpose except, if the participation agreement so provides, for the purposes of Sections 3.5, 3.6, 11.11 and 11.21 but only to the extent that the cost of such benefits to Borrower does not exceed the cost which Borrower would have incurred in respect of the Lender granting such participation absent the participation, (iv) Borrower, the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights assumption and obligations under this Agreementassignment, (v) the participation interest shall be expressed as a percentage such purchaser or other transferee of the granting Lender’s Pro Rata Share Transmission Facilities shall demonstrate to Contractor compliance with all of the Revolving Facility as it then exists and shall not restrict an increase in the Revolving Facility (or the aggregate Commitments pertaining thereto), or in the granting Lender’s rights and obligations hereunder, so long as the amount requirements of the participation interest is not affected thereby and (vi) the consent of the holder of such participation interest shall not be required for amendments or waivers of provisions of the Loan Documents other than those which (A) extend any Amortization Date, any applicable Maturity Date or any other date upon which any payment of money is due to the Lenders, (B) reduce the rate of interest on the Notes, any fee or any other monetary amount payable to the Lenders, (C) reduce the amount of any installment of principal due under the Notes, or (D) release any Guarantor from its Guaranty.
(f) Borrower agrees that upon the occurrence and during the continuance of any Event of Default, each Lender shall be entitled to assign its rights hereunder and under the Loan Documents, or grant participation interests in its rights under this Agreement and applicable to Owner, including the Loan Documents, maintenance of insurance pursuant to any Person, in whole or in any part thereof, notwithstanding any provisions contained herein (including those set forth in subsection (b) above) or in any other Loan Document to the contrary, except that, other than (i) assignments by a Lender to an Affiliate of such Lender or to another Lender or (ii) pledges described in the last sentence of subsection (a) above, no assignment shall be made without the approval of the Administrative AgentSection 3.6.
Appears in 2 contracts
Samples: Connecticut Neews Projects Agreement (Public Service Co of New Hampshire), Agreement Re: Connecticut Neews Projects (Uil Holdings Corp)
Binding Effect; Assignment. (a) This Agreement and the other Loan Documents to which the Borrower is a Party party will be binding upon and inure to the benefit of the Borrower, the Administrative Agent, each of the Lenders, Lenders and their respective successors and assigns, except that that, the Borrower may not not, except as permitted by Section 7.03, assign its rights hereunder or thereunder or any interest herein or therein without the prior written consent of all the Lenders. Each Lender represents that it is not acquiring its Note with a view to the distribution thereof within the meaning of the Securities Act of 1933, as amended (subject to Lenders and any requirement that disposition of such Note must attempted assignment shall be within the control of such Lender)void. Any Lender may at any time pledge its a Note or any other instrument evidencing its rights as a Lender under this Agreement to a Federal Reserve BankBank or, if such Lender is a fund, to any trustee or to any other representative of holders of obligations owed or securities issued by such fund as security for such obligations or securities, but no such pledge shall release that such Lender from its obligations hereunder or grant to such Federal Reserve Bank or trust or other representative the rights of a Lender hereunder absent foreclosure of such pledge, and any transfer to any Person upon the enforcement of such pledge shall be subject to this Section 10.04.
(b) From time to time following the Closing Datedate of this Agreement, each Lender may assign to one or more Eligible Assignees banks, financial institutions or other entities, all or any portion of its rights and obligations under this Agreement (including all or a portion of its Commitment, the Advances owing to it and the Note or Notes held by it)other Loan Documents; provided that, subject to subsection (f) below, :
(i) such Eligible Assigneeassignment, if not then to a Lender, an Affiliate of a Lender or an Affiliate Approved Fund, shall require the consent of (A) prior to the initial Extensions of Credit on the Effective Date, the Borrower and solely for administrative purposes, the Administrative Agent, and in the case of the assigning LenderRevolving Commitments only, shall be approved by the Administrative Agent and Borrower the Issuing Lenders (neither such consents of which approvals shall the Administrative Agent and the Issuing Lenders not to be unreasonably withheld or delayed) and (B) thereafter, with the consent of the Borrower, and in the case of the Revolving Commitments only, the Administrative Agent and the Issuing Lenders (in each case, such consents not be unreasonably withheld or delayed); and provided further, that no consent of the Borrower shall be required for an assignment to any Person if an Event of Default under any of subsections (a), (b) or (i) of Section 8.01 of this Agreement has occurred and is continuing;
(ii) such assignment shall be evidenced by an Assignment and Acceptance, a copy of which a duly signed and completed Assignment and Acceptance shall be furnished delivered to the Administrative Agent as hereinbelow provided, Agent;
(iii) except in the case of an assignment to an Affiliate of the entire remaining Term Commitment, Term Loan or Revolving Commitment of the assigning Lender, to another Lender or of the entire remaining rights and obligations of the assigning Lender under this Agreement, the such assignment shall be in an aggregate principal amount not assign a portion of such assigning Lender’s Commitments and/or Advances owing to such assigning Lender that is equivalent to less than $3,000,000, and the Minimum Amount therefor; and
(iv) the effective date of any such assignment shall be as specified in the Assignment and Acceptance, but not earlier than the date which is five (5) Banking Business Days after the date the Administrative Agent has received the Assignment and Acceptance. Upon the effective date of such Assignment and Acceptance, the Eligible Assignee named therein shall be a Lender for all purposes of this Agreement, with the Commitments and/or Advances therein set forth and, to the extent of such Commitments and/or Advances, the assigning Lender shall be released from its further obligations under this Agreement. Borrower agrees that it shall execute and deliver (against delivery by the assigning Lender to Borrower of such Lender’s Notes) to such assignee Lender, Notes evidencing that assignee Lender’s Commitments and/or Advances, and to the assigning Lender, Notes evidencing the remaining balance of the Commitments and/or Advances retained by the assigning Lender.
(c) By executing and delivering an Assignment and Acceptance, the Eligible Assignee thereunder acknowledges and agrees that: (i) other than the representation and warranty that it is the legal and beneficial owner of the rights and obligations hereunder being assigned thereby free and clear of any adverse claim, the assigning Lender has made 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 or sufficiency of this Agreement or any other Loan Document; (ii) the assigning Lender has made no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance by Borrower of the Obligations; (iii) it has received a copy of this Agreement, together with copies of the most recent financial statements delivered pursuant to Section 7.1 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) it will, independently and without reliance upon the Administrative Agent or any Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) it appoints and authorizes the Administrative Agent to take such action and to exercise such powers under this Agreement as are delegated to the Administrative Agent by this Agreement; and (vi) 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.
(d) The Administrative Agent shall maintain at the Administrative Agent’s Office a copy of each Assignment and Acceptance delivered to it and a register (the “Register”) of the names and address of each of the Lenders and the Pro Rata Share of the Commitments held by each Lender, giving effect to each Assignment and Acceptance. The Register shall be available during normal business hours for inspection by Borrower or any Lender upon reasonable prior notice to the Administrative Agent. After receipt of a completed Assignment and Acceptance executed by any Lender and an Eligible AssigneeAcceptance, and receipt of an assignment fee of $3,500 from such assignee and/or such assigning Lender or Eligible Assignee(but not including in the case of assignments to Affiliates and Approved Funds of assigning Lenders), the Administrative Agent shall, shall promptly following accept such Assignment and Acceptance and record the information contained therein in the Register on the effective date thereof, provide to Borrower determined pursuant thereto. The Loans (including the Notes evidencing such Loans) are registered obligations and the right, title, and interest of the Lenders and their assignees in and to such Loans shall be transferable only upon notation of such transfer in the Register. A Note shall only evidence the Lender’s or an assignee’s right title and interest in and to the related Loan, and in no event is any such Note to be considered a revised Schedule 1.1 giving effect theretobearer instrument or obligation within the meaning of Section 163(f) of the Code. BorrowerThis Section 10.04 shall be construed so that the Loans are at all times maintained in “registered form” within the meaning of Sections 163(f), 871(h)(2) and 881(c)(2) of the Code and any related regulations (or any successor provisions of the Code or such regulations). Solely for purposes of this Section 10.04 and Section 2.13(c) and for tax purposes only, the Administrative Agent and shall act as the Lenders shall deem and treat the Persons listed as Lenders Borrower’s agent for purposes of maintaining such notations of transfer in the Register as the holders and owners of the Pro Rata Shares of the Revolving Facility listed therein for all purposes hereof, and no assignment or transfer of any Lender’s rights and obligations hereunder shall be effective, in each case unless and until an Assignment and Acceptance effecting the assignment or transfer thereof shall have been accepted by the Administrative Agent and recorded in the Register as provided above. Prior to such recordation, all amounts owed with respect to the applicable Pro Rata Share of the Revolving Facility shall be owed to the Lender listed in the Register as the owner thereof, and any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is listed in the Register as a Lender shall be conclusive and binding on any subsequent holder, assignee or transferee of the corresponding Pro Rata Share of the Revolving FacilityRegister.
(ed) Each Lender may from time to time time, without the consent of any other Person, grant participations to one or more banks or other financial institutions Persons (including another Lender) in or to all or a any portion of its rights and/or obligations Loans, Commitments, Extensions of Credit or any other interest of such Lender hereunder and under this Agreementthe other Loan Documents; provided, however, that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) the participating banks bank or other financial institutions institution shall not be a Lender hereunder for any purpose except, if the participation agreement so provides, for the purposes of Sections 3.5, 3.6, 11.11 the yield protection and 11.21 increased cost provisions of Section 3 (but only to the extent that the cost of such benefits to the Borrower does not exceed the cost which the Borrower would have incurred in respect of the such Lender granting such participation absent the participation) and for purposes of Section 10.06, (iv) the Borrower, the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement, Agreement and (v) the participation interest shall be expressed as a percentage of the granting Lender’s Pro Rata Share of the Revolving Facility as it then exists and shall not restrict an increase in the Revolving Facility (or the aggregate Commitments pertaining thereto), or in the granting Lender’s rights and obligations hereunder, so long as the amount of the participation interest is not affected thereby and (vi) the consent of the holder of such participation interest shall not be required for amendments or waivers of provisions of the Loan Documents other than Documents; provided, however, that the assigning Lender may, in any agreement with a participant, give such participant the right to consent (as between the assigning Lender and such participant) to those matters with respect to which the affirmative consent of the assigning Lender would be required pursuant to clauses (Aa) extend through (f) of the second sentence of Section 10.01. Any Lender that sells a participation to any Amortization DatePerson that is a “foreign corporation, any applicable Maturity Date partnership or any other date upon which any trust” within the meaning of the Code shall include in its participation agreement with such Person a covenant by such Person that such Person will comply with the provisions of Section 10.21 as if such Person were a Lender and provide that the Administrative Agent and the Borrower shall be third party beneficiaries of such covenant. Each Lender that sells or grants a participation shall (a) withhold or deduct from each payment of money is due to the Lenders, (B) reduce the rate holder of interest on the Notes, any fee or any other monetary amount payable to the Lenders, (C) reduce such participation the amount of any installment of principal due tax required under applicable Laws to be withheld or deducted from such payment and not withheld or deducted therefrom by the NotesBorrower or the Administrative Agent, or (D) release any Guarantor from its Guaranty.
(f) Borrower agrees that upon the occurrence and during the continuance of any Event of Default, each Lender shall be entitled to assign its rights hereunder and under the Loan Documents, or grant participation interests in its rights under this Agreement and the Loan Documents, to any Person, in whole or in any part thereof, notwithstanding any provisions contained herein (including those set forth in subsection (b) above) pay the tax so withheld or in any other Loan Document deducted by it to the contrary, except that, other than appropriate taxing authority in accordance with applicable Law and (ic) assignments by a Lender to an Affiliate of such Lender or to another Lender or (ii) pledges described in indemnify the last sentence of subsection (a) above, no assignment shall be made without the approval of Borrower and the Administrative AgentAgent for any losses, cost and expenses that they may incur as a result of any failure to so withhold or deduct and pay such tax.
Appears in 2 contracts
Samples: Credit Agreement (NBCUniversal Media, LLC), Credit Agreement (General Electric Co)
Binding Effect; Assignment. (a) This Agreement and the other Loan Documents to which Borrower is a Party will any Margin Loans made hereunder shall be binding upon and shall inure to the benefit of Borrower, the Administrative Agent, each of the Lenders, parties and their respective successors and permitted assigns, except that Borrower may . The rights and obligations of the parties under this Agreement and under any Margin Loan made hereunder shall not assign its rights hereunder or thereunder or any interest herein or therein be assigned by either party without the prior written consent of all the Lenders. Each Lender represents that it is not acquiring its Note with a view to other party, and any such assignment without the distribution thereof within the meaning prior written consent of the Securities Act of 1933, as amended (subject to any requirement that disposition of such Note must other party shall be within the control of such Lender). Any Lender may at any time pledge its Note or any other instrument evidencing its rights as a Lender under this Agreement to a Federal Reserve Bank, but no such pledge shall release that Lender from its obligations hereunder or grant to such Federal Reserve Bank the rights of a Lender hereunder absent foreclosure of such pledgenull and void.
(b) From Notwithstanding the foregoing, the Bank may at any time to time following the Closing Date, each Lender may assign to one or more Eligible Assignees banks or other financial institutions (each, an “Assignee”) all or any pro rata portion of its rights and obligations under this Agreement (including all or a portion of its Commitmentand any Margin Loan, and any such Assignee shall assume such rights and obligations, pursuant to an Assignment and Assumption Agreement in the Advances owing to it and the Note or Notes held by it); provided that, subject to subsection (f) below, (i) such Eligible Assignee, if not then a Lender or an Affiliate of the assigning Lender, shall be form approved by the Administrative Agent Bank and Borrower executed by such Assignee and the Bank, with (neither and subject to) the subscribed consent of the Borrower, which approvals shall not be unreasonably withheld or delayed), (ii) such assignment shall be evidenced by an Assignment and Acceptance, a copy of which shall be furnished to the Administrative Agent as hereinbelow provided, (iii) except in the case of an assignment to an Affiliate of the assigning Lender, to another Lender or of the entire remaining rights and obligations of the assigning Lender under this Agreement, the assignment shall not assign a portion of such assigning Lender’s Commitments and/or Advances owing to such assigning Lender that is equivalent to less than $3,000,000, and (iv) the effective date of any such assignment shall be as specified in the Assignment and Acceptance, but not earlier than the date which is five (5) Banking Days after the date the Administrative Agent has received the Assignment and Acceptance. Upon the effective date of such Assignment and Acceptance, the Eligible Assignee named therein shall be a Lender for all purposes of this Agreement, with the Commitments and/or Advances therein set forth and, to the extent of such Commitments and/or Advances, the assigning Lender shall be released from its further obligations under this Agreement. Borrower agrees that it shall execute and deliver (against delivery by the assigning Lender to Borrower of such Lender’s Notes) to such assignee Lender, Notes evidencing that assignee Lender’s Commitments and/or Advances, and to the assigning Lender, Notes evidencing the remaining balance of the Commitments and/or Advances retained by the assigning Lender.
(c) By executing and delivering an Assignment and Acceptance, the Eligible Assignee thereunder acknowledges and agrees that: (i) other than the representation and warranty that it is the legal and beneficial owner of the rights and obligations hereunder being assigned thereby free and clear of any adverse claim, the assigning Lender has made 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 or sufficiency of this Agreement or any other Loan Document; (ii) the assigning Lender has made no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance by Borrower of the Obligations; (iii) it has received a copy of this Agreement, together with copies of the most recent financial statements delivered pursuant to Section 7.1 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) it will, independently and without reliance upon the Administrative Agent or any Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) it appoints and authorizes the Administrative Agent to take such action and to exercise such powers under this Agreement as are delegated to the Administrative Agent by this Agreement; and (vi) 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.
(d) The Administrative Agent shall maintain at the Administrative Agent’s Office a copy of each Assignment and Acceptance delivered to it and a register (the “Register”) of the names and address of each of the Lenders and the Pro Rata Share of the Commitments held by each Lender, giving effect to each Assignment and Acceptance. The Register shall be available during normal business hours for inspection by Borrower or any Lender upon reasonable prior notice to the Administrative Agent. After receipt of a completed Assignment and Acceptance executed by any Lender and an Eligible Assignee, and receipt of an assignment fee of $3,500 from such Lender or Eligible Assignee, the Administrative Agent shall, promptly following the effective date thereof, provide to Borrower and the Lenders a revised Schedule 1.1 giving effect thereto. Borrower, the Administrative Agent and the Lenders shall deem and treat the Persons listed as Lenders in the Register as the holders and owners of the Pro Rata Shares of the Revolving Facility listed therein for all purposes hereof, and no assignment or transfer of any Lender’s rights and obligations hereunder shall be effective, in each case unless and until an Assignment and Acceptance effecting the assignment or transfer thereof shall have been accepted by the Administrative Agent and recorded in the Register as provided above. Prior to such recordation, all amounts owed with respect to the applicable Pro Rata Share of the Revolving Facility shall be owed to the Lender listed in the Register as the owner thereof, and any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is listed in the Register as a Lender shall be conclusive and binding on any subsequent holder, assignee or transferee of the corresponding Pro Rata Share of the Revolving Facility.
(e) Each Lender may from time to time grant participations to one or more banks or other financial institutions in or to all or a portion of its rights and/or obligations under this Agreement; provided, however, that (i) if any such Lender’s obligations under this Agreement Assignee is an Affiliate of the Bank, no consent shall remain unchangedbe required so long as such Assignee is a United States person (as defined in Section 7701(a)(30) of the Code), (ii) if any Event of Default under this Agreement has occurred and is continuing, no consent of the Borrower to such Lender assignment shall remain solely responsible to the other parties hereto for the performance of such obligations, be required and (iii) such Assignment and Assumption shall be delivered to the participating banks or other financial institutions Borrower for recording in the Register.
(c) The Borrower shall not be maintain a Lender hereunder for any purpose except, if the participation agreement so provides, copy of each Assignment and Assumption delivered to it and a register for the recordation of the names and addresses of the Bank, and the commitment amounts of, and principal amounts of Margin Loans (and related interest) owing to, each Bank pursuant to the terms hereof from time to time (the “Register”). The entries in the Register shall be conclusive absent manifest error, and the Borrower and the Bank shall treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Bank and the owner of the amounts owing to it under the Margin Loan Documents as reflected in the Register for all purposes of Sections 3.5the Margin Loan Documents, 3.6, 11.11 and 11.21 but only notwithstanding notice to the extent contrary. The Register shall be available for inspection by the Bank at any reasonable time and from time to time upon reasonable prior notice.
(d) The Bank (including its successors and permitted assigns) may, without regard to the foregoing restrictions on assignment contained in this Section 8.06, assign all or any pro rata portion of its rights under this Agreement to a U.S. Federal Reserve Bank, provided that no such assignment shall release the cost Bank from any of such benefits its obligations hereunder.
(e) The Bank may at any time, without the consent of, or notice to the Borrower, sell participations to any Person (other than the Borrower does not exceed the cost which Borrower would have incurred or any of its Affiliates) in respect all or a portion of the Lender granting such participation absent the participation, (iv) Borrower, the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such LenderBank’s rights and obligations under this Agreement; provided that no such sale of a participation shall release the Bank from any of its obligations hereunder. If the Bank sells a participation, it shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each participant and the principal amounts (vand stated interest) of each participant’s interest in the participation Margin Loans or other obligations under this Agreement (the “Participant Register”); provided further that the Bank shall have no obligation to disclose all or any portion of the Participant Register (including the identity of any participant or any information relating to a participant’s interest in any commitments, Margin Loans or its other obligations under any Margin Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, Margin Loan or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations, or is otherwise required thereunder. The entries in the Participant Register shall be expressed as a percentage of the granting Lender’s Pro Rata Share of the Revolving Facility as it then exists conclusive absent manifest error, and shall not restrict an increase each Person whose name is recorded in the Revolving Facility (or the aggregate Commitments pertaining thereto), or in the granting Lender’s rights and obligations hereunder, so long Participant Register shall be treated as the amount of the participation interest is not affected thereby and (vi) the consent of the holder owner of such participation interest shall not be required for amendments or waivers all purposes of provisions of the Loan Documents other than those which (A) extend any Amortization Date, any applicable Maturity Date or any other date upon which any payment of money is due to the Lenders, (B) reduce the rate of interest on the Notes, any fee or any other monetary amount payable to the Lenders, (C) reduce the amount of any installment of principal due under the Notes, or (D) release any Guarantor from its Guaranty.
(f) Borrower agrees that upon the occurrence and during the continuance of any Event of Default, each Lender shall be entitled to assign its rights hereunder and under the Loan Documents, or grant participation interests in its rights under this Agreement and the Loan Documents, to any Person, in whole or in any part thereof, notwithstanding any provisions contained herein (including those set forth in subsection (b) above) or in any other Loan Document notice to the contrary, except that, other than (i) assignments by a Lender to an Affiliate of such Lender or to another Lender or (ii) pledges described in the last sentence of subsection (a) above, no assignment shall be made without the approval of the Administrative Agent.
Appears in 2 contracts
Samples: Master Margin Loan Agreement (Highland Funds Ii), Master Margin Loan Agreement (Highland Funds Ii)
Binding Effect; Assignment. (a) This Agreement and the other Loan Documents to which Borrower is a Party will be binding upon and inure to the benefit of Borrower, the Administrative Agent, each of the LendersCreditors, and their respective successors and assigns, except that except as permitted in Section 6.3, Borrower may not assign its rights hereunder or thereunder or any interest herein or therein without the prior written consent of all the Lenders. Each Lender represents that it is not acquiring its Note with a view to the distribution thereof within the meaning of the Securities Act of 1933, as amended (subject to any requirement that disposition of such Note must be within the control of such Lender). Any Lender may at any time pledge or grant a security interest in its Note or any other instrument evidencing its rights as a Lender under this Agreement to a Federal Reserve BankBank or a trustee, collateral agent or other representative of such Lender for the benefit of such Lender's creditors, but no such pledge or grant of a security interest shall release that Lender from its obligations hereunder or grant to such Federal Reserve Bank Bank, trustee, collateral agent or other representative the rights of a Lender hereunder absent foreclosure of such pledgepledge or security interest.
(b) From time to time following the Closing Date, each Lender may assign to one or more Eligible Assignees all or any portion of its rights Pro Rata Share and obligations under this Agreement (including all or a portion of its Commitment, the Advances owing to it and the Note or Notes held by it)Note; provided that, subject to subsection (f) below, that (i) such Eligible Assignee, if not then a Lender or an Affiliate or Related Fund of the assigning LenderLender having a combined capital and surplus in excess of $100,000,000, shall be approved by each of the Administrative Agent (which approval shall not be unreasonably withheld) and Borrower (neither of which approvals approval shall not be unreasonably withheld or delayedand which will not be required if an Event of Default has occurred and remains continuing), (ii) such assignment shall be evidenced by an Assignment and AcceptanceAgreement, a copy of which shall be furnished to the Administrative Agent as hereinbelow providedAgent, (iii) except in the case of an assignment to an Affiliate of the assigning Lender, to another Lender or of the entire remaining rights and obligations Commitment of the assigning Lender under this AgreementLender, the assignment shall not assign a portion of such assigning Lender’s Commitments and/or Advances owing to such assigning Lender that Pro Rata Share which is equivalent to less than $3,000,0001,000,000, and (iv) the effective date of any such assignment shall be as specified in the Assignment and AcceptanceAgreement, but not earlier than the date which is five (5) Banking Business Days after the date the Administrative Agent has received the Assignment and AcceptanceAgreement. Upon the effective date of such Assignment and AcceptanceAgreement, the Eligible Assignee named therein shall be a Lender for all purposes of this Agreement, with the Commitments and/or Advances Pro Rata Share therein set forth and, to the extent of such Commitments and/or AdvancesPro Rata Share, the assigning Lender shall be released from its further obligations under this AgreementAgreement and the other Loan Documents. Borrower agrees that it shall execute and deliver (against delivery by the assigning Lender to Borrower of such Lender’s Notesits Note) to such assignee Lender, Notes a Note evidencing that assignee Lender’s Commitments and/or Advances's Pro Rata Share, and to the assigning Lender, Notes a Note evidencing the remaining balance of the Commitments and/or Advances Pro Rata Share retained by the assigning Lender.
(c) By executing and delivering an Assignment and AcceptanceAgreement, the Eligible Assignee thereunder acknowledges and agrees that: (i) other than the representation and warranty that it is the legal and beneficial owner of the rights and obligations hereunder Pro Rata Share being assigned thereby free and clear of any adverse claim, the assigning Lender has made 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 or sufficiency of this Agreement or any other Loan Document; (ii) the assigning Lender has made no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or its Subsidiaries or the performance by Borrower or its Subsidiaries of the Obligations; (iii) it has received a copy of this AgreementAgreement and the other Loan Documents, together with copies of the most recent financial statements delivered pursuant to Section 7.1 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and AcceptanceAgreement; (iv) it will, independently and without reliance upon the Administrative Agent or any Lender other Creditor and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) it appoints and authorizes the Administrative Agent to take such action and to exercise such powers under this Agreement and the Loan Documents as are delegated to the Administrative Agent by this Agreement; and (vi) 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.
(d) The Administrative Agent shall maintain at the Administrative Agent’s Office a copy of each Assignment and Acceptance Agreement delivered to it and a register (the “Register”) of the names and address of each of the Lenders and the Pro Rata Share of the Commitments held by each Lender, giving effect to each Assignment and Acceptance. The Register shall be available during normal business hours for inspection by Borrower or any Lender upon reasonable prior notice to the Administrative Agentit. After receipt of a completed Assignment and Acceptance Agreement executed by any Lender and an Eligible Assignee, and receipt of an assignment fee of $3,500 from such Lender or Eligible Assignee, the Administrative Agent shall, shall promptly following notify the effective date thereof, provide to Borrower and each affected Lender of the Lenders a revised Schedule 1.1 giving effect thereto. Borrowereffectiveness of such assignment; provided, that no assignment fee shall be payable with respect to an assignment to another Lender or an Affiliate of such assigning Lender or if the Administrative Agent waives payment of such assignment fee and the Lenders shall deem and treat the Persons listed as Lenders further provided, that only one assignment fee will be payable in the Register as the holders and owners of the Pro Rata Shares of the Revolving Facility listed therein for all purposes hereof, and no assignment connection with simultaneous assignments by or transfer of any Lender’s rights and obligations hereunder shall be effective, in each case unless and until an Assignment and Acceptance effecting the assignment to two or transfer thereof shall have been accepted by the Administrative Agent and recorded in the Register as provided above. Prior to such recordation, all amounts owed with respect to the applicable Pro Rata Share of the Revolving Facility shall be owed to the Lender listed in the Register as the owner thereof, and any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is listed in the Register as a Lender shall be conclusive and binding on any subsequent holder, assignee or transferee of the corresponding Pro Rata Share of the Revolving Facilitymore Related Funds.
(e) Each Lender may from time to time grant participations in a portion of its Pro Rata Share (with the consent of Borrower which consent shall not be unreasonably withheld), in each case to one or more banks or other financial institutions in or to all or a portion of its rights and/or obligations under this Agreement(including another Lender); provided, however, that (i) such Lender’s 's obligations under this Agreement the Loan Documents shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) the participating banks or other financial institutions shall not be a Lender hereunder for any purpose except, if the participation agreement so provides, for the purposes of Sections 3.53.7, 3.63.8, 11.11 and 11.21 11.23 but only to the extent that the cost of such benefits to Borrower does not exceed the cost which Borrower would have incurred in respect of the such Lender granting such participation absent the participation, (iv) Borrower, the Administrative Agent Borrower and the other Lenders Creditors shall continue to deal solely and directly with such Lender in connection with such Lender’s 's rights and obligations under this Agreement, (v) the participation interest shall be expressed as a percentage of the granting Lender’s Pro Rata Share of the Revolving Facility as it then exists and shall not restrict an increase in the Revolving Facility (or the aggregate Commitments pertaining thereto)Commitment, or in the granting Lender’s rights and obligations hereunder's Pro Rata Share, so long as the amount of the participation interest is not affected thereby thereby, and (vi) the consent of the holder of such participation interest shall not be required for amendments or waivers of provisions of the Loan Documents affecting the relevant Lender other than those which (A) extend any Amortization Date, any applicable the Maturity Date or any other date upon which any payment of money is due to the Lendersthat Lender, (B) reduce the rate of interest on the Notes, that Lender's Note or any fee or any other monetary amount payable to the Lendersthat Lender, or (C) reduce the amount of any installment of principal due under the Notes, or (D) release any Guarantor from its Guarantythat Lender's Note.
(f) Borrower agrees that upon the occurrence and during the continuance of any Event of Default, each Lender shall be entitled to assign its rights hereunder and under the Loan Documents, or grant participation interests Notwithstanding anything in its rights under this Agreement and the Loan Documents, to any Person, in whole or in any part thereof, notwithstanding any provisions contained herein (including those set forth in subsection (b) above) or in any other Loan Document Section to the contrary, except thatthe rights of the Lenders to make assignment of, other than and grant participations in, their Pro Rata Share shall be subject to the approval of any Gaming Board, to the extent required by applicable Gaming Laws.
(g) Notwithstanding anything to the contrary contained herein, any Lender (a "Granting Lender") may grant to one or more special purpose funding vehicles (each, an "SPC") of such Granting Lender, identified as such in writing from time to time by the Granting Lender to the Administrative Agent and the Borrower, the option to provide to the Borrower all or any part of any Loan that such Granting Lender would otherwise be obligated to make to the Borrower pursuant to Article 2, provided that (i) assignments nothing herein shall constitute a commitment to make any Loan by any SPC and (ii) if an SPC elects not to exercise such option or otherwise fails to provide all or any part of such Loan, the Granting Lender shall be obligated to make such Loan pursuant to the terms hereof. The making of a Loan by an SPC hereunder shall utilize the Commitment of the Granting Lender to an Affiliate the same extent, and as if, such Loan were made by the Granting Lender. Each party hereto hereby agrees that no SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the related Granting Lender). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding senior indebtedness of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings or similar proceedings under the laws of the United States or any State thereof, provided that the Granting Lender for each SPC hereby agrees to indemnify, save, and hold harmless each other party hereto for any loss, cost, damage and expense arising out of their inability to institute any such proceeding against its SPC. In addition, notwithstanding anything to the contrary contained in this Section 11.8, any SPC may (i) with notice to, but without the prior written consent of, the Borrower or the Administrative Agent and without paying any processing fee therefor, assign all or a portion of its interests in any Loans to its Granting Lender or to another any financial institutions providing liquidity and/or credit facilities to or for the account of such SPC to fund the Loans made by such SPC or to support the securities (if any) issued by such SPC to fund such Loans (but nothing contained herein shall be construed in derogation of the obligation of the Granting Lender to make Loans hereunder), provided that neither the consent of the SPC or of any such assignee shall be required for amendments or waivers of provisions of the Loan Documents except for those amendments or waivers for which the consent of participants is required under Section 11.8(e)(vi), and (ii) pledges disclose on a confidential basis (in the same manner described in the last sentence Section 11.14) any non-public information relating to its Loans to any rating agency, commercial paper dealer or provider of subsection (a) abovea surety, no assignment shall be made without the approval of the Administrative Agentguarantee or credit or liquidity enhancement to such SPC.
Appears in 2 contracts
Samples: Capital Markets Term Loan Agreement (Mandalay Resort Group), Term Loan Agreement (Mandalay Resort Group)
Binding Effect; Assignment. (a) This Agreement and the other Loan Documents to which Borrower is a Party will continuing obligation and shall (i) be binding upon the Company and its permitted successors and assigns and (ii) inure to the benefit of Borrowerand be enforceable by TDF and its successors, the Administrative Agent, each of the Lenders, and their respective successors transferees and assigns, except ; provided that Borrower the Company may not assign its rights hereunder or thereunder all or any interest herein or therein part of this Agreement without the prior written consent of TDF. Any permitted assignment of this Agreement by the Company shall be conditioned upon the assignee executing and delivering to TDF, Issuer and the Trustee a certificate which shall be in a form reasonably satisfactory to TDF, Issuer and the Trustee, pursuant to which the assignee shall expressly assume, and agree to pay and to perform, all the Lenders. Each Lender represents that it is not acquiring its Note with a view to the distribution thereof within the meaning of the Securities Act obligations of 1933, as amended (subject to any requirement that disposition of such Note must be within the control of such Lender). Any Lender may at any time pledge its Note or any other instrument evidencing its rights as a Lender Company under this Agreement to a Federal Reserve BankAgreement. TDF may assign, but no such negotiate, pledge shall release that Lender from its obligations hereunder or grant to such Federal Reserve Bank the rights of a Lender hereunder absent foreclosure of such pledge.
(b) From time to time following the Closing Date, each Lender may assign to one or more Eligible Assignees otherwise hypothecate all or any portion of its this Agreement, or grant participations herein, in the Letter of Credit, and in TDF's other rights and obligations under this Agreement (including all or a portion of its Commitmentsecurity hereunder, including, without limitation, the Advances owing to it and instruments securing the Note Company's obligations hereunder or Notes held by it); provided that, subject to subsection (f) below, (i) such Eligible Assignee, if not then a Lender or an Affiliate of under any Operative Document. In the assigning Lender, shall be approved by the Administrative Agent and Borrower (neither of which approvals shall be unreasonably withheld or delayed), (ii) such assignment shall be evidenced by an Assignment and Acceptance, a copy of which shall be furnished to the Administrative Agent as hereinbelow provided, (iii) except in the case event of an assignment to an Affiliate of the assigning Lenderall, to another Lender or of the entire remaining rights and obligations of the assigning Lender under this Agreement, the assignment shall not assign a portion of such assigning Lender’s Commitments and/or Advances owing to such assigning Lender that is equivalent to less than $3,000,000, and (iv) the effective date of any such assignment shall be as specified in the Assignment and Acceptance, but not earlier than the date which is five (5) Banking Days after the date the Administrative Agent has received the Assignment and Acceptance. Upon the effective date of such Assignment and Acceptance, the Eligible Assignee named therein shall be a Lender for all purposes of this Agreement, with the Commitments and/or Advances therein set forth and, to the extent of such Commitments and/or Advances, the assigning Lender shall be released from its further obligations under this Agreement. Borrower agrees that it shall execute and deliver (against delivery by the assigning Lender to Borrower of such Lender’s Notes) to such assignee Lender, Notes evidencing that assignee Lender’s Commitments and/or Advances, and to the assigning Lender, Notes evidencing the remaining balance of the Commitments and/or Advances retained by the assigning Lender.
(c) By executing and delivering an Assignment and Acceptance, the Eligible Assignee thereunder acknowledges and agrees that: (i) other than the representation and warranty that it is the legal and beneficial owner of the TDF's rights and obligations hereunder being assigned thereby free and clear under the Letter of any adverse claimCredit, the assigning Lender has made 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 Company shall at the execution, legality, validity, enforceability, genuineness or sufficiency request of this Agreement or any other Loan Document; (ii) the assigning Lender has made no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance by Borrower of the Obligations; (iii) it has received a copy of this Agreement, together with copies of the most recent financial statements delivered pursuant to Section 7.1 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) it will, independently and without reliance upon the Administrative Agent or any Lender and based on TDF execute such documents as shall be necessary or convenient to evidence such assignment, the substitution of TDF by the assignee, and information as it shall deem appropriate at the timerelease of TDF of its obligations hereunder; provided that such assignment may not impose additional material obligations on the Company without the Company's previous written consent. No such assignment or participations by TDF, continue however, will relieve TDF of its obligations under the Letter of Credit unless consented to make its own credit decisions in taking or not taking action under this Agreement; (v) it appoints and authorizes by the Administrative Agent to take such action and to exercise such powers under this Agreement as are delegated to the Administrative Agent by this Agreement; and (vi) it will perform Trustee 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.
(d) The Administrative Agent shall maintain at the Administrative Agent’s Office a copy of each Assignment Trust Agreement. All documentation, financial statements, appraisals, and Acceptance delivered to it and a register (the “Register”) of the names and address of each of the Lenders and the Pro Rata Share of the Commitments held by each Lenderother data, giving effect to each Assignment and Acceptance. The Register shall be available during normal business hours for inspection by Borrower or any Lender upon reasonable prior notice copies thereof, relevant to the Administrative Agent. After receipt of a completed Assignment Company, may be reviewed and Acceptance executed retained by any Lender and an Eligible Assigneesuch assignee, and receipt of an assignment fee of $3,500 from such Lender prospective assignee, participant or Eligible Assignee, the Administrative Agent shall, promptly following the effective date thereof, provide to Borrower and the Lenders a revised Schedule 1.1 giving effect thereto. Borrower, the Administrative Agent and the Lenders shall deem and treat the Persons listed as Lenders in the Register as the holders and owners of the Pro Rata Shares of the Revolving Facility listed therein for all purposes hereof, and no assignment or transfer of any Lender’s rights and obligations hereunder shall be effective, in each case unless and until an Assignment and Acceptance effecting the assignment or transfer thereof shall have been accepted by the Administrative Agent and recorded in the Register as provided above. Prior to such recordation, all amounts owed with respect to the applicable Pro Rata Share of the Revolving Facility shall be owed to the Lender listed in the Register as the owner thereof, and any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is listed in the Register as a Lender shall be conclusive and binding on any subsequent holder, assignee or transferee of the corresponding Pro Rata Share of the Revolving Facility.
(e) Each Lender may from time to time grant participations to one or more banks or other financial institutions in or to all or a portion of its rights and/or obligations under this Agreement; provided, however, that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) the participating banks or other financial institutions shall not be a Lender hereunder for any purpose except, if the participation agreement so provides, for the purposes of Sections 3.5, 3.6, 11.11 and 11.21 but only to the extent that the cost of such benefits to Borrower does not exceed the cost which Borrower would have incurred in respect of the Lender granting such participation absent the participation, (iv) Borrower, the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement, (v) the participation interest shall be expressed as a percentage of the granting Lender’s Pro Rata Share of the Revolving Facility as it then exists and shall not restrict an increase in the Revolving Facility (or the aggregate Commitments pertaining thereto), or in the granting Lender’s rights and obligations hereunder, prospective participant so long as the amount of the participation interest is such entities agree to retain such documentation, statements and appraisals confidential and not affected thereby and (vi) the consent of the holder of such participation interest shall not be required for amendments or waivers of provisions of the Loan Documents other than those which (A) extend any Amortization Date, any applicable Maturity Date or any other date upon which any payment of money is due release them to the Lenders, (B) reduce the rate of interest on the Notes, any fee or any other monetary amount payable to the Lenders, (C) reduce the amount of any installment of principal due under the Notes, or (D) release any Guarantor from its Guarantypublic.
(f) Borrower agrees that upon the occurrence and during the continuance of any Event of Default, each Lender shall be entitled to assign its rights hereunder and under the Loan Documents, or grant participation interests in its rights under this Agreement and the Loan Documents, to any Person, in whole or in any part thereof, notwithstanding any provisions contained herein (including those set forth in subsection (b) above) or in any other Loan Document to the contrary, except that, other than (i) assignments by a Lender to an Affiliate of such Lender or to another Lender or (ii) pledges described in the last sentence of subsection (a) above, no assignment shall be made without the approval of the Administrative Agent.
Appears in 2 contracts
Samples: Letter of Credit and Reimbursement Agreement (Maxxam Inc), Letter of Credit and Reimbursement Agreement (Maxxam Inc)
Binding Effect; Assignment. (a) 11.10.1 This Agreement Agreement, the Note and the other Loan Documents to which Borrower is a Party will shall be binding upon and shall inure to the benefit of Borrower, the Administrative Agent, each of the Lenders, parties hereto and thereto and their respective successors and assigns, except that neither Borrower nor Guarantor may not assign its rights hereunder or thereunder or any interest herein or therein without the prior written consent of all the Lenderseach Lender. Each Lender represents shall (i) have the right in accordance with this Section 11.10 to sell and assign to any Eligible Assignee all or any portion of its interest (provided that it is any such partial assignment shall not acquiring its be for a principal amount of less than Five Million Dollars ($5,000,000)) under this Agreement, the Note with a view and the other Loan Documents (as separately described and defined in those agreements), subject to the distribution thereof within prior written consent of Borrower, which consent shall not be unreasonably withheld, and (ii) to grant any participation or other interest herein or therein, except that each potential participant to which a Lender intends to grant any rights under Sections 2.9, 2.10, 5.1 or 10.2 shall be subject to the meaning prior written consent of Borrower, which consent shall not be unreasonably withheld; provided, however, that no such sale, assignment or participation grant shall result in requiring registration under the Securities Act of 1933, as amended (subject to amended, or qualification under any requirement that disposition of such Note must be within the control of such Lender). Any Lender may at any time pledge its Note or any other instrument evidencing its rights as a Lender under this Agreement to a Federal Reserve Bank, but no such pledge shall release that Lender from its obligations hereunder or grant to such Federal Reserve Bank the rights of a Lender hereunder absent foreclosure of such pledgestate securities law.
(b) From time 11.10.2 Subject to time following the Closing Datelimitations of this Section 11.10.2, each Lender may assign sell and assign, from time to one or more Eligible Assignees time, all or any portion of its rights and obligations under this Agreement (including all or a portion Pro Rata Share of the Commitments to any of its CommitmentAffiliates or, with the Advances owing approval of Borrower (which approval shall not be unreasonably withheld), to it and the Note or Notes held by it); provided thatany other financial institution acceptable to Agent, subject to subsection (f) below, (i) the assumption by such Eligible Assignee, if not then a Lender or an Affiliate assignee of the assigning Lender, shall be approved by share of the Administrative Agent and Borrower (neither of which approvals shall be unreasonably withheld Commitments so assigned. The assignment to such Affiliate or delayed), (ii) such assignment other financial institution shall be evidenced by an instrument of Assignment and Assumption in the form of Exhibit G (the "Assignment and Acceptance") executed by the assignor Lender (hereinafter from time to time referred to as the "Assignor Lender") and such Affiliate or other financial institution (which, upon such assignment shall become a copy Lender hereunder (hereinafter from time to time referred to as the "Assignee Lender")). The Assignment and Assumption need not include any of the economic or financial terms upon which such Assignee Lender receives the assignment from the Assignor Lender, and such terms need not be disclosed to or approved by Borrower; provided only that such terms do not diminish the obligations undertaken by such Assignee Lender in the Assignment and Assumption or increase the obligations of Borrower under this Agreement. Upon execution of an Assignment and Assumption, (i) the definition of "Commitments" in Section 1 hereof and the Pro Rata Shares set forth therein shall be furnished deemed to be amended to reflect each Lender's share of the Commitments, giving effect to the Administrative Agent assignment and (ii) the Assignee Lender shall, from the effective date of the Assignment and Assumption, be subject to all of the obligations, and entitled to all of the rights, of a Lender hereunder, except as hereinbelow provided, (iii) except may be expressly provided to the contrary in the case of an assignment to an Affiliate Assignment and Assumption. To the extent the obligations hereunder of the assigning Assignor Lender are assumed by the Assignee Lender, the Assignor Lender shall be relieved of such obligations. Upon the assignment of any interest by any Assignor Lender pursuant to another this Section 11.10.2, such Assignor Lender or agrees to supplement Schedule 1.1 to show the date of such assignment, the Assignor Lender, the Assignee Lender, the Assignee Lender's address for notice purposes and the amount of the entire remaining rights and obligations Commitments so assigned.
11.10.3 Subject to the limitations of this Section 11.10.3, any Lender may also grant, from time to time, participation interests in the assigning interests of such Lender under this Agreement, the assignment shall not assign a portion Note and the other Loan Documents to any other financial institution without notice to, or approval of, Borrower. The grant of such assigning Lender’s Commitments and/or Advances owing to such assigning Lender that is equivalent to less than $3,000,000, and (iv) the effective date of any such assignment a participation interest shall be as specified in the Assignment and Acceptance, but not earlier than the date which is five (5) Banking Days after the date the Administrative Agent has received the Assignment and Acceptance. Upon the effective date of such Assignment and Acceptance, the Eligible Assignee named therein shall be a Lender for all purposes of this Agreement, with the Commitments and/or Advances therein set forth and, to the extent of such Commitments and/or Advances, the assigning Lender shall be released from its further obligations under this Agreement. Borrower agrees that it shall execute and deliver (against delivery by the assigning Lender to Borrower of such Lender’s Notes) to such assignee Lender, Notes evidencing that assignee Lender’s Commitments and/or Advances, and to the assigning Lender, Notes evidencing the remaining balance of the Commitments and/or Advances retained by the assigning Lender.
(c) By executing and delivering an Assignment and Acceptance, the Eligible Assignee thereunder acknowledges and agrees that: (i) other than the representation and warranty that it is the legal and beneficial owner of the rights and obligations hereunder being assigned thereby free and clear of any adverse claim, the assigning Lender has made 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 or sufficiency of this Agreement or any other Loan Document; (ii) the assigning Lender has made no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance by Borrower of the Obligations; (iii) it has received a copy of this Agreement, together with copies of the most recent financial statements delivered pursuant to Section 7.1 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) it will, independently and without reliance upon the Administrative Agent or any Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) it appoints and authorizes the Administrative Agent to take such action and to exercise such powers under this Agreement as are delegated to the Administrative Agent by this Agreement; and (vi) 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.
(d) The Administrative Agent shall maintain at the Administrative Agent’s Office a copy of each Assignment and Acceptance delivered to it and a register (the “Register”) of the names and address of each of the Lenders and the Pro Rata Share of the Commitments held by each Lender, giving effect to each Assignment and Acceptance. The Register shall be available during normal business hours for inspection by Borrower or any Lender upon reasonable prior notice to the Administrative Agent. After receipt of a completed Assignment and Acceptance executed by any Lender and an Eligible Assignee, and receipt of an assignment fee of $3,500 from such Lender or Eligible Assignee, the Administrative Agent shall, promptly following the effective date thereof, provide to Borrower and the Lenders a revised Schedule 1.1 giving effect thereto. Borrower, the Administrative Agent and the Lenders shall deem and treat the Persons listed as Lenders in the Register as the holders and owners of the Pro Rata Shares of the Revolving Facility listed therein for all purposes hereofgranting Lender determines are appropriate, and no assignment or transfer of any Lender’s rights and obligations hereunder shall be effective, in each case unless and until an Assignment and Acceptance effecting the assignment or transfer thereof shall have been accepted by the Administrative Agent and recorded in the Register as provided above. Prior to such recordation, all amounts owed with respect to the applicable Pro Rata Share of the Revolving Facility shall be owed to the Lender listed in the Register as the owner thereof, and any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is listed in the Register as a Lender shall be conclusive and binding on any subsequent holder, assignee or transferee of the corresponding Pro Rata Share of the Revolving Facility.
(e) Each Lender may from time to time grant participations to one or more banks or other financial institutions in or to all or a portion of its rights and/or obligations under this Agreement; provided, however, only that (i) the holder of such Lender’s obligations participation interest shall not have any of the rights of a Lender under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) the participating banks or other financial institutions shall not be a Lender hereunder for any purpose except, if the participation agreement so expressly provides, for the purposes of rights under Sections 3.52.9, 3.62.10, 11.11 5.1 and 11.21 but only to the extent that the cost of such benefits to Borrower does not exceed the cost which Borrower would have incurred in respect of the Lender granting such participation absent the participation10.2, (iv) Borrower, the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement, (v) the participation interest shall be expressed as a percentage of the granting Lender’s Pro Rata Share of the Revolving Facility as it then exists and shall not restrict an increase in the Revolving Facility (or the aggregate Commitments pertaining thereto), or in the granting Lender’s rights and obligations hereunder, so long as the amount of the participation interest is not affected thereby and (viii) the consent of the holder of such a participation interest shall not be required for amendments or waivers of provisions of the Loan Documents other than than, if the participation agreement expressly provides, those which (A) extend increase the monetary amount of any Amortization Date, any applicable Maturity Date or any other date upon which any payment of money is due to the LendersCommitment, (B) reduce the rate of interest on the Notes, decrease any fee or any other monetary amount payable to the Lenders, or (C) reduce extend the date upon which any monetary amount of any installment of principal due under the Notes, or (D) release any Guarantor from its Guarantyis payable to Lenders.
(f) Borrower agrees that upon the occurrence and during the continuance of any Event of Default, each Lender shall be entitled to assign its rights hereunder and under the Loan Documents, or grant participation interests in its rights under this Agreement and the Loan Documents, to any Person, in whole or in any part thereof, notwithstanding any provisions contained herein (including those set forth in subsection (b) above) or in any other Loan Document to the contrary, except that, other than (i) assignments by a Lender to an Affiliate of such Lender or to another Lender or (ii) pledges described in the last sentence of subsection (a) above, no assignment shall be made without the approval of the Administrative Agent.
Appears in 2 contracts
Samples: Warehousing Credit Agreement (American Finance Group Inc /De/), Warehousing Credit Agreement (PLM International Inc)
Binding Effect; Assignment. (a) This Agreement and the other Loan Documents to which Borrower any Obligor is a Party party will be binding upon and inure to the benefit of Borrower, the Administrative Agent, each of relevant Obligor and the LendersCreditors, and their respective successors and assigns, except EXCEPT that Borrower the Obligors may not assign its their rights hereunder or thereunder or any interest herein or therein without the prior written consent of all the Lenders. Notwithstanding the preceding sentence, Borrower may when no Default or Event of Default has occurred and remains continuing, assign the Commitments to a limited liability company which (i) is wholly-owned, directly or indirectly by Delaware North, (ii) concurrently assumes the Obligations and the Obligations under the Senior Unsecured Notes pursuant to a transaction and documents which are acceptable to the Administrative Agent, and (iii) succeeds to substantially all of the assets, rights and privileges of the Borrower (including without limitation the Collateral and all gaming licenses held by Borrower). Each Lender represents that it is not acquiring its Note with a view to the distribution thereof within the meaning of the Securities Act of 1933, as amended (subject to any requirement that disposition of such Note must be within the control of such Lender). Any Lender may at any time pledge its Note or any other instrument evidencing its rights as a Lender under this Agreement to a Federal Reserve Bank, but no such pledge shall release that Lender from its obligations hereunder or grant to such Federal Reserve Bank the rights of a Lender hereunder absent foreclosure of such pledge.
(b) From time to time following the Closing Effective Date, each Lender may assign to one or more Eligible Assignees all or any portion of its rights and obligations under this Agreement (including all or a portion of its Commitment, the Advances owing to it and the Note or Notes held by it)Pro Rata Share; provided that, subject to subsection (f) below, PROVIDED that (i) such Eligible Assignee, if not then a Lender or an Affiliate of the assigning Lender, shall be approved by the Administrative Agent and Borrower (neither of which approvals shall be unreasonably withheld or delayed), PROVIDED that the consent of Borrower to assignments shall not be required when any Default or Event of Default has occurred and remains continuing, (ii) such assignment shall be evidenced by an Assignment and AcceptanceAgreement, a copy of which shall be furnished to the Administrative Agent as hereinbelow providedprovided below, (iii) except EXCEPT in the case of an assignment to an Affiliate of the assigning Lender, to another Lender or of the entire remaining rights and obligations Commitment of the assigning Lender under this AgreementLender, the assignment shall not assign a portion Pro Rata Share of such assigning Lender’s Commitments and/or Advances owing to such assigning Lender that is the Commitment equivalent to less than $3,000,0001,500,000, and (iv) the effective date of any such assignment shall be as specified in the Assignment and AcceptanceAgreement, but not earlier than the date which is five (5) Banking Business Days after the date the Administrative Agent has received the Assignment Agreement, and Acceptance(v) no Lender shall make any assignment to an Assignee which has been found by the West Virginia State Lottery Commission or the West Virginia State Racing Commission, acting under applicable Law, to be unsuitable as a Lender. Upon the effective date of such Assignment and AcceptanceAgreement, the Eligible Assignee named therein shall be a Lender for all purposes of this Agreement, with the Commitments and/or Advances Pro Rata Share therein set forth and, to the extent of such Commitments and/or AdvancesPro Rata Share, the assigning Lender shall be released from its further obligations under this Agreementthe Loan Documents. Borrower agrees that it shall execute and deliver (against delivery by the assigning Lender to Borrower of such Lender’s Notesits Note) to such assignee Lender, Notes a Note evidencing that assignee Lender’s Commitments and/or Advances's Pro Rata Share, and to the assigning Lender, Notes a Note evidencing the remaining balance of the Commitments and/or Advances Pro Rata Share retained by the assigning Lender.
(c) By executing and delivering an Assignment and AcceptanceAgreement, the Eligible Assignee thereunder acknowledges and agrees that: (i) other than the representation and warranty that it is the legal and beneficial owner of the rights and obligations hereunder Pro Rata Share being assigned thereby free and clear of any adverse claim, the assigning Lender has made 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 or sufficiency of this Agreement or any other Loan Document; (ii) the assigning Lender has made no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance by Borrower of the Obligations; (iii) it has received a copy of this Agreement, together with copies of the most recent financial statements delivered pursuant to Section 7.1 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and AcceptanceAgreement; (iv) it will, independently and without reliance upon the Administrative Agent or any Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) it appoints and authorizes the Administrative Agent to take such action and to exercise such powers under this Agreement and the other Loan Documents as are delegated to the Administrative Agent by this Agreement; and (vi) 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.
(d) The Administrative Agent shall maintain at the Administrative Agent’s 's Office a copy of each Assignment and Acceptance Agreement delivered to it and a register (the “Register”) of the names and address of each of the Lenders and the Pro Rata Share of the Commitments held by each Lender, giving effect to each Assignment and Acceptance. The Register shall be available during normal business hours for inspection by Borrower or any Lender upon reasonable prior notice to the Administrative Agentit. After receipt of a completed Assignment and Acceptance Agreement executed by any Lender and an Eligible Assignee, and receipt of an assignment fee of $3,500 from such Lender or Eligible Assignee, the Administrative Agent shall, promptly following the effective date thereof, provide to Borrower and the Lenders a revised Schedule 1.1 giving effect thereto. Borrower, the Administrative Agent and the Lenders shall deem and treat the Persons listed as Lenders in the Register as the holders and owners list of the Pro Rata Shares of the Revolving Facility listed therein for all purposes hereof, and no assignment or transfer of any Lender’s rights and obligations hereunder shall be effective, in each case unless and until an Assignment and Acceptance effecting the assignment or transfer thereof shall have been accepted by the Administrative Agent and recorded in the Register as provided above. Prior to such recordation, all amounts owed with respect to the applicable Pro Rata Share of the Revolving Facility shall be owed to the Lender listed in the Register as the owner thereof, and any request, authority or consent of any Person who, at the time of making such request or Lenders giving such authority or consent, is listed in the Register as a Lender shall be conclusive and binding on any subsequent holder, assignee or transferee of the corresponding Pro Rata Share of the Revolving Facilityeffect thereto.
(e) Each Lender may from time to time grant participations to one or more banks or other financial institutions (INCLUDING another Lender) in or to all or a portion of its rights and/or obligations under this AgreementPro Rata Share; providedPROVIDED, howeverHOWEVER, that (i) Borrower shall have provided its written approval to such participation (such approval shall not be unreasonably withheld or delayed), (ii) such Lender’s 's obligations under this Agreement shall remain unchanged, (iiiii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iiiiv) the participating banks or other financial institutions shall not be a Lender hereunder for any purpose exceptEXCEPT, if the participation agreement Agreement so provides, for the purposes of Sections 3.5, 3.6, 11.11 and 11.21 11.22 but only to the extent that the cost of such benefits to Borrower does not exceed the cost which Borrower would have incurred in respect of the such Lender granting such participation absent the participation, (ivv) Borrower, the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s 's rights and obligations under this Agreement, (vvi) the participation interest shall be expressed as a percentage of the granting Lender’s 's Pro Rata Share of the Revolving Facility as it then exists and shall not restrict an increase in the Revolving Facility (or the aggregate Commitments pertaining thereto)Commitment, or in the granting Lender’s rights and obligations hereunder's Pro Rata Share, so long as the amount of the participation interest is not affected thereby and (vivii) the consent of the holder of such participation interest shall not be required for amendments or waivers of provisions of the Loan Documents other than OTHER THAN those which (A) extend any Amortization Date, any applicable the Maturity Date or any other date upon which any payment of money is due to the Lenders, (B) reduce the rate of interest on payable with respect to the Notesparticipation, any fee or any other monetary amount payable to the Lendersparticipant, (C) reduce the amount of any installment of principal due under the NotesNotes in a manner which affects the participant, or (D) release any Guarantor from its Guarantymaterial portion of the Collateral, (E) increase the Commitment, only if the participant's Commitment is increased.
(f) Borrower agrees that upon the occurrence and during the continuance of any Event of Default, each Lender shall be entitled to assign its rights hereunder and under the Loan Documents, or grant participation interests Notwithstanding anything in its rights under this Agreement and the Loan Documents, to any Person, in whole or in any part thereof, notwithstanding any provisions contained herein (including those set forth in subsection (b) above) or in any other Loan Document Section 11.8 to the contrary, except thatthe rights of the Lenders to make assignments of, other than (i) assignments by a Lender to an Affiliate and grant participations in, their Pro Rata Shares of such Lender or to another Lender or (ii) pledges described in the last sentence of subsection (a) above, no assignment Commitment shall be made without subject to the approval of any Regulatory Board (including the approval of the Administrative Agentidentity of any proposed assignee or participant), to the extent required by Applicable Regulations.
Appears in 2 contracts
Samples: Loan Agreement (Wheeling Land Development Corp), Loan Agreement (Wdra Food Service Inc)
Binding Effect; Assignment. (a) This Agreement and the other Loan Documents to which Borrower each of the Credit Parties is a Party party will be binding upon and inure to the benefit of Borrowereach Credit Party, the Administrative Agent, each of the Lenders, and their respective successors and assigns, except that Borrower (i) no Credit Party may not assign its rights hereunder or thereunder or any interest herein or therein without the prior written consent of all the Lenders. Each , and (ii) no Lender represents that it is not acquiring may assign or transfer its Note rights or obligations hereunder except in accordance with a view to the distribution thereof within the meaning of the Securities Act of 1933, as amended (subject to any requirement that disposition of such Note must be within the control of such Lender)this Section. Any Lender may at any time pledge its Note or any other instrument evidencing its rights as a Lender under this Agreement to a Federal Reserve BankLender, but no such pledge shall release that Lender from its obligations hereunder or grant to such Federal Reserve Bank Lender the rights of a Lender hereunder absent foreclosure of such pledge.
(b) From time to time following the Closing Date, each Lender may assign to one or more Eligible Assignees assignees all or any portion of its rights and obligations under this Agreement (including all or a portion of its Commitment, the Advances owing to it and the Note or Notes held by it)Pro Rata Share; provided that, subject to subsection (f) below, that (i) so long as no Default or Event of Default has occurred and is continuing such assignee shall be an Eligible AssigneeAssignee and, if such assignee is not then a Lender or Lender, an Affiliate of a Lender or a CLO, any such assignment shall require the assigning Lender, shall be approved by prior written consent of the Administrative Agent and Borrower (neither of which approvals shall be unreasonably withheld or delayed)Company, (ii) any such assignment shall be evidenced by an Assignment and Acceptance, a copy require the prior written consent of which shall be furnished to the Administrative Agent as hereinbelow providedAgent, (iii) any such assignment shall require the written consent of the Issuing Bank, and (iv) except in the case of an assignment to an Affiliate of the assigning Lender, to a CLO administered or managed by the assigning Lender or an Affiliate of the assigning Lender, to another Lender or of the entire remaining rights and obligations Commitment of the assigning Lender under this Agreement, Lender; the assignment shall not assign a portion of such assigning Lender’s Commitments and/or Advances owing to such assigning Lender that Pro Rata Share which is equivalent to less than $3,000,000, the Minimum Amount therefore. No consent required by this section 10.05(b) shall be unreasonably withheld or delayed; it being understood that it shall not be deemed unreasonable to withhold such consent if based solely on the desire to avoid the payment of additional costs or taxes. A copy of a Notice of Assignment and (iv) Acceptance shall be delivered to the Administrative Agent with respect to any assignment. The effective date of any such assignment shall be as specified in the Notice of Assignment and Acceptance, but not earlier than the date which is five (5) Banking Business Days after the date the Administrative Agent has received the Notice of Assignment and Acceptance. Upon acceptance by the effective date Administrative Agent of such Notice Assignment and Acceptance, the Eligible Assignee named therein shall be a Lender for all purposes of this Agreement, with the Commitments and/or Advances Pro Rata Share therein set forth and, to the extent of such Commitments and/or AdvancesPro Rata Share, the assigning Lender shall be released from its further obligations under this Agreement. Borrower Each Credit Party agrees that it shall execute and deliver upon request (against delivery by the assigning Lender to Borrower such Credit Party of such Lender’s Notesany Note) to such assignee Lender, one or more Notes evidencing that assignee Lender’s Commitments and/or AdvancesPro Rata Share, and to the assigning LenderLender if requested, one or more Notes evidencing the remaining balance of the Commitments and/or Advances Pro Rata Share retained by the assigning Lender.
(c) By executing and delivering an a Notice of Assignment and Acceptance, the Eligible Assignee thereunder acknowledges and agrees that: (i) other than the representation and warranty that it is the legal and beneficial owner of the rights and obligations hereunder Pro Rata Share being assigned thereby free and clear of any adverse claim, the assigning Lender has made 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 or sufficiency of this Agreement or any other Loan Document; (ii) the assigning Lender has made no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower any Credit Party or the performance by Borrower any Credit Party of the Obligations; (iii) it has received a copy of this Agreement, together with copies of the most recent financial statements delivered pursuant to Section 7.1 6.01 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) it will, independently and without reliance upon the Administrative Agent or any Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) it appoints and authorizes the Administrative Agent to take such action and to exercise such powers under this Agreement as are delegated to the Administrative Agent by this Agreement; and (vi) 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.
(d) The Administrative Agent shall maintain at the Administrative Agent’s Office a copy of each Assignment and Acceptance delivered to it and a register (the “Register”) of the names and address of each of the Lenders and the Pro Rata Share of the Commitments held by each Lender, giving effect to each Assignment and Acceptance. The Register shall be available during normal business hours for inspection by Borrower or any Lender upon reasonable prior notice to the Administrative Agent. After receipt of a completed Notice of Assignment and Acceptance executed by any Lender and an Eligible AssigneeAcceptance, and receipt of an assignment fee of $3,500 from such Lender or Eligible Assignee, the Administrative Agent shall, promptly following the effective date thereof, provide to Borrower the Company and the Lenders a revised Schedule 1.1 10.02 giving effect thereto. Borrower, the Administrative Agent and the Lenders shall deem and treat the Persons listed as Lenders in the Register as the holders and owners of the Pro Rata Shares of the Revolving Facility listed therein for all purposes hereof, and no assignment or transfer of any Lender’s rights and obligations hereunder shall be effective, in each case unless and until an Assignment and Acceptance effecting the assignment or transfer thereof shall have been accepted by the Administrative Agent and recorded in the Register as provided above. Prior to such recordation, all amounts owed with respect to the applicable Pro Rata Share of the Revolving Facility shall be owed to the Lender listed in the Register as the owner thereof, and any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is listed in the Register as a Lender shall be conclusive and binding on any subsequent holder, assignee or transferee of the corresponding Pro Rata Share of the Revolving Facility.
(e) Each Lender may from time to time grant participations to one or more banks or other financial institutions (including another Lender) in or to all or a portion of its rights and/or obligations under this AgreementPro Rata Share; provided, however, that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) the participating banks or other financial institutions shall not be a Lender hereunder for any purpose except, if the participation agreement so provides, for the purposes of Sections 3.5, 3.6, 11.11 and 11.21 Article III but only to the extent that the cost of such benefits to Borrower the Company does not exceed the cost which Borrower the Company would have incurred in respect of the such Lender granting such participation absent the participation, (iv) Borrowerthe Credit Parties, the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement, (v) the participation interest shall be expressed as a percentage of the granting Lender’s Pro Rata Share of the Revolving Facility as it then exists and shall not restrict an increase in the Revolving Facility (or the aggregate Commitments pertaining thereto), or in the granting Lender’s rights and obligations hereunderPro Rata Share, so long as the amount of the participation interest is not affected thereby and (vi) the consent of the holder of such participation interest shall not be required for amendments or waivers of provisions of the Loan Documents other than those which (A) extend any Amortization Date, any applicable the Maturity Date as to such participant or any other date upon which any payment of money is due to the Lenderssuch participant, (B) reduce the rate of interest on the Notesowing to such participant, any fee or any other monetary amount payable owing to the Lenders, such participant or (C) reduce the amount of any installment of principal due under the Notes, or owing to such participant. A Lender granting a participation in accordance with this clause (De) release any Guarantor from its Guaranty.
(f) Borrower agrees that upon the occurrence and during the continuance of any Event of Default, each Lender shall be entitled to assign its rights hereunder and under the Loan Documents, or grant participation interests in its rights under this Agreement and the Loan Documents, to any Person, in whole or in any part thereof, notwithstanding any provisions contained herein (including those set forth in subsection (b) above) or in any other Loan Document give Requisite Notice to the contrary, except that, other Company on by executing and delivering a Notice of Participation no later than (i) assignments by a Lender to an Affiliate 5 Business Days after the effective date of such Lender or to another Lender or (ii) pledges described in the last sentence of subsection (a) above, no assignment shall be made without the approval of the Administrative Agentparticipation.
Appears in 2 contracts
Samples: Credit Agreement (Science Applications International Corp), Credit Agreement (Science Applications International Corp)
Binding Effect; Assignment. (a) This Agreement shall become effective on the date (the “Restatement Effective Date”) (i) when it shall have been executed by the Borrower, the Agents and by each Bank and shall have been delivered to the Agent and (ii) when the conditions set forth in Article VI are met to the satisfaction of, or waived in writing by, the Agent and the other Loan Documents to which Borrower is a Party will Required Lenders, and thereafter shall be binding upon and inure to the benefit of Borrower, the Administrative Agent, Borrower and each of the Lenders, Banks and their respective successors and assigns, except that the Borrower may shall not have the right to assign its rights hereunder or thereunder or any interest herein or therein without the prior written consent of all of the LendersBanks, which consent may be withheld in their sole discretion. Each Lender represents that it is not acquiring Bank may at any time grant participations in any of its rights hereunder or under its Note with a view or Notes to the distribution thereof within the meaning another commercial bank, financial institution, mutual fund or any institutional “accredited investor” (as defined in Regulation D of the Securities Act of 1933, as amended amended), provided, that in the case of any such participation, the participant shall not have any rights under this Agreement, the Notes or any Related Writing (subject the participant’s rights against such Bank in respect of any such participation to be those set forth in the agreement executed by such Bank in favor of the participant relating thereto) and all amounts payable by such Bank hereunder shall be determined as if such Bank had not sold such participation; and provided, further, that no Bank shall transfer, assign or grant any requirement that disposition participation under this Agreement under which the participant shall have rights to approve any amendment to or waiver of this Agreement or any Related Writing.
(b) Notwithstanding the foregoing, (i) any Bank may assign all or a portion of its Loans and/or Commitments and its rights and obligations hereunder to an affiliate of such Note must Bank and (ii) with the consent of the Agent and the Borrower so long as no Possible Default or Event of Default then exists (which consents shall not be within unreasonably withheld or delayed), any Bank may assign all or a portion of its Loans and/or Commitments and its rights and obligations hereunder to one or more commercial banks, financial institutions (including one or more Banks), mutual funds or institutional “accredited investors” (as defined in Regulation D of the control Securities Act of 1933, as amended), provided, that (A) any assignment of a Bank’s Loans shall include a ratable part of such LenderBank’s Commitment, and (B) the consent of the Agent (which consent shall not be unreasonably withheld or delayed) shall be required for any assignment of a Commitment to the extent any letters of credit are outstanding. No assignment pursuant to subsection (ii) of the immediately preceding sentence shall be in an aggregate amount less than Ten Million Dollars ($10,000,000). Any Lender If any Bank so sells all or a part of its rights hereunder or under any Note, any reference in this Agreement or such Note to such assigning Bank shall thereafter refer to such Bank and to the respective assignee to the extent of their respective interests and the respective assignee shall have, to the extent of such assignment (unless otherwise provided therein), the same rights and benefits as it would if it were such assigning Bank. Each assignment pursuant to Section 13.08(b)(ii) shall be effected by the assigning Bank and the assignee Bank executing a Bank Assignment and Assumption Agreement substantially in the form of Exhibit G (appropriately completed). At the time of any such assignment pursuant to Section 13.08(b)(ii), (X) Exhibit A shall be deemed to be amended to reflect the Commitments of the respective assignee (which shall result in a corresponding reduction of the Commitment of the assigning Bank) and of the other Banks (Y) if any such assignment occurs after the Restatement Effective Date, the Borrower will issue new Notes to the respective assignee and to the assigning Bank (upon delivery of the existing Note or Notes of such assigning Bank) in conformity with the requirements of this Agreement and (Z) the Agent shall receive at the time of each such assignment, from the assigning or assignee Bank, the payment of a nonrefundable assignment fee of $3,000.
(c) Notwithstanding any other provisions of this Section 13.08, no transfer or assignment of the interests or obligations of any Bank hereunder or any grant of participations therein shall be permitted if such transfer, assignment or grant would require the Borrower to file a registration Statement with the Securities and Exchange Commission or to qualify the loans under the “Blue Sky” laws of any State.
(d) Notwithstanding any other provisions of this Section 13.08, so long as no Event of Default has occurred and is continuing and the Administrative Agent or the Syndication Agent, as applicable, has not resigned or been removed pursuant to the provisions of this Agreement, each Agent agrees that it will not assign or transfer any of its Loans and/or Commitments to the extent that the amount of the Loans and/or Commitments that such Agent would continue to hold following such assignment or transfer would be less than ten percent (10%) of the aggregate Loans and/or Commitments of all of the Banks.
(e) Notwithstanding any other provision set forth in this Agreement, any Bank may at any time pledge its Note or any other instrument evidencing its rights as a Lender under this Agreement to a Federal Reserve Bank, but no such pledge shall release that Lender from its obligations hereunder or grant to such Federal Reserve Bank the rights of a Lender hereunder absent foreclosure of such pledge.
(b) From time to time following the Closing Date, each Lender may assign to one or more Eligible Assignees all or any portion of its rights and obligations under this Agreement (including all or a portion of its Commitment, the Advances owing to it and the Note or Notes held by it); provided that, subject to subsection (f) below, (i) such Eligible Assignee, if not then a Lender or an Affiliate of the assigning Lender, shall be approved by the Administrative Agent and Borrower (neither of which approvals shall be unreasonably withheld or delayed), (ii) such assignment shall be evidenced by an Assignment and Acceptance, a copy of which shall be furnished to the Administrative Agent as hereinbelow provided, (iii) except in the case of an assignment to an Affiliate of the assigning Lender, to another Lender or of the entire remaining rights and obligations of the assigning Lender under this Agreement, the assignment shall not assign a portion of such assigning Lender’s Commitments and/or Advances owing to such assigning Lender that is equivalent to less than $3,000,000Guaranty and the other documents executed and delivered in connection therewith (including, and (iv) the effective date of any such assignment shall be as specified in the Assignment and Acceptance, but not earlier than the date which is five (5) Banking Days after the date the Administrative Agent has received the Assignment and Acceptance. Upon the effective date of such Assignment and Acceptancewithout limitation, the Eligible Assignee named therein shall be a Lender for all purposes Notes held by it) to any Federal Reserve Bank in accordance with Regulation A of this Agreementthe Federal Reserve Board without notice to, with or the Commitments and/or Advances therein set forth and, to the extent of such Commitments and/or Advancesconsent of, the assigning Lender shall be released from its further obligations under this Agreement. Borrower agrees that it shall execute and deliver (against delivery by the assigning Lender to Borrower of such Lender’s Notes) to such assignee Lender, Notes evidencing that assignee Lender’s Commitments and/or Advances, and to the assigning Lender, Notes evidencing the remaining balance of the Commitments and/or Advances retained by the assigning Lender.
(c) By executing and delivering an Assignment and AcceptanceAgents, the Eligible Assignee thereunder acknowledges and agrees that: (i) other than the representation and warranty that it is the legal and beneficial owner of the rights and obligations hereunder being assigned thereby free and clear of any adverse claim, the assigning Lender has made 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 or sufficiency of this Agreement or any other Loan Document; (ii) the assigning Lender has made no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance by Borrower Parent, provided, that no such pledge or assignment or enforcement thereof shall release a Bank from any of the Obligations; (iii) it has received a copy of this Agreement, together with copies of the most recent financial statements delivered pursuant to Section 7.1 and its obligations hereunder or substitute any such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into pledgee or assignee for such Assignment and Acceptance; (iv) it will, independently and without reliance upon the Administrative Agent or any Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) it appoints and authorizes the Administrative Agent to take such action and to exercise such powers under this Agreement as are delegated to the Administrative Agent by this Agreement; and (vi) 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 Bank as a Lenderparty hereto.
(d) The Administrative Agent shall maintain at the Administrative Agent’s Office a copy of each Assignment and Acceptance delivered to it and a register (the “Register”) of the names and address of each of the Lenders and the Pro Rata Share of the Commitments held by each Lender, giving effect to each Assignment and Acceptance. The Register shall be available during normal business hours for inspection by Borrower or any Lender upon reasonable prior notice to the Administrative Agent. After receipt of a completed Assignment and Acceptance executed by any Lender and an Eligible Assignee, and receipt of an assignment fee of $3,500 from such Lender or Eligible Assignee, the Administrative Agent shall, promptly following the effective date thereof, provide to Borrower and the Lenders a revised Schedule 1.1 giving effect thereto. Borrower, the Administrative Agent and the Lenders shall deem and treat the Persons listed as Lenders in the Register as the holders and owners of the Pro Rata Shares of the Revolving Facility listed therein for all purposes hereof, and no assignment or transfer of any Lender’s rights and obligations hereunder shall be effective, in each case unless and until an Assignment and Acceptance effecting the assignment or transfer thereof shall have been accepted by the Administrative Agent and recorded in the Register as provided above. Prior to such recordation, all amounts owed with respect to the applicable Pro Rata Share of the Revolving Facility shall be owed to the Lender listed in the Register as the owner thereof, and any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is listed in the Register as a Lender shall be conclusive and binding on any subsequent holder, assignee or transferee of the corresponding Pro Rata Share of the Revolving Facility.
(e) Each Lender may from time to time grant participations to one or more banks or other financial institutions in or to all or a portion of its rights and/or obligations under this Agreement; provided, however, that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) the participating banks or other financial institutions shall not be a Lender hereunder for any purpose except, if the participation agreement so provides, for the purposes of Sections 3.5, 3.6, 11.11 and 11.21 but only to the extent that the cost of such benefits to Borrower does not exceed the cost which Borrower would have incurred in respect of the Lender granting such participation absent the participation, (iv) Borrower, the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement, (v) the participation interest shall be expressed as a percentage of the granting Lender’s Pro Rata Share of the Revolving Facility as it then exists and shall not restrict an increase in the Revolving Facility (or the aggregate Commitments pertaining thereto), or in the granting Lender’s rights and obligations hereunder, so long as the amount of the participation interest is not affected thereby and (vi) the consent of the holder of such participation interest shall not be required for amendments or waivers of provisions of the Loan Documents other than those which (A) extend any Amortization Date, any applicable Maturity Date or any other date upon which any payment of money is due to the Lenders, (B) reduce the rate of interest on the Notes, any fee or any other monetary amount payable to the Lenders, (C) reduce the amount of any installment of principal due under the Notes, or (D) release any Guarantor from its Guaranty.
(f) Borrower agrees that upon the occurrence and during the continuance of any Event of Default, each Lender shall be entitled to assign its rights hereunder and under the Loan Documents, or grant participation interests in its rights under this Agreement and the Loan Documents, to any Person, in whole or in any part thereof, notwithstanding any provisions contained herein (including those set forth in subsection (b) above) or in any other Loan Document to the contrary, except that, other than (i) assignments by a Lender to an Affiliate of such Lender or to another Lender or (ii) pledges described in the last sentence of subsection (a) above, no assignment shall be made without the approval of the Administrative Agent.
Appears in 2 contracts
Samples: Credit Agreement (Forest City Enterprises Inc), Credit Agreement (Forest City Enterprises Inc)
Binding Effect; Assignment. (a) This Agreement and the other Loan Documents to which Borrower is a Party will be binding upon and shall inure to the benefit of Borrower, the Administrative Agent, and be binding upon each of the Lenders, party and their respective its successors and permitted assigns. Except as otherwise provided in Subsections 9.3(a) and (b), except that Borrower may not neither party shall, directly or indirectly, assign this Agreement or any of its rights or obligations hereunder or thereunder or any interest herein or therein without the prior written consent of the other party. Without limiting the generality of the foregoing, a merger, acquisition or change of control of a party hereto shall be deemed to be an assignment. As used in this Section 9.3, change of control shall mean a transaction pursuant to which a person or group acting in concert, other than the currently controlling person or group, immediately after such transaction shall effectively control election of directors, but shall not include changes in the identity of owners of a party’s publicly held stock not involving any stock owner achieving ownership of more than [***] of a party’s publicly held stock entitled to vote for the election of directors.
(a) Notwithstanding the foregoing, MERCK may, without consent, assign this Agreement and its rights and obligations hereunder to an Affiliate or in connection with the transfer or sale of all the Lenders. Each Lender represents that it is not acquiring or substantially all of its Note with a view assets related to the distribution thereof within Licensed Product or the meaning business, or in the event of the Securities Act its merger or consolidation or change of 1933, as amended (subject to any requirement that disposition of such Note must be within the control of such Lender)or similar transaction. Any Lender may at any time pledge such assignee shall assume all obligations of its Note or any other instrument evidencing its rights as a Lender assignor under this Agreement to a Federal Reserve Bank, but no such pledge shall release that Lender from its obligations hereunder or grant to such Federal Reserve Bank the rights of a Lender hereunder absent foreclosure of such pledgeAgreement.
(b) From time to time following Notwithstanding the Closing Dateforegoing, each Lender ARRIS may assign this Agreement without consent in connection with a merger of, acquisition of, or sale of [***] indicates material that has been omitted pursuant to one or more Eligible Assignees a request for confidential treatment. The omitted material has been filed separately with the Securities and Exchange Commission. all or any portion of its rights and obligations under this Agreement (including substantially all or a portion of its Commitment, the Advances owing to it and the Note or Notes held by it); provided that, subject to subsection (f) below, (i) such Eligible Assignee, if not then a Lender or an Affiliate of the assigning Lenderassets of ARRIS, shall be approved by the Administrative Agent and Borrower (neither of which approvals shall be unreasonably withheld or delayed)PROVIDED, (ii) HOWEVER, that such assignment shall be evidenced by an Assignment [***] of the obligations of ARRIS hereunder, and Acceptancefurther that if such merger, a copy acquisition or sale of which assets [***], where ARRIS is not the surviving entity, then such assignment shall be furnished subject to Section 9.4 below. In the Administrative Agent as hereinbelow provided, (iii) except in the case of an assignment to an Affiliate of the assigning Lender, to another Lender or of the entire remaining rights and obligations of the assigning Lender under this Agreement, the assignment shall not assign a portion of such assigning Lender’s Commitments and/or Advances owing to such assigning Lender that is equivalent to less than $3,000,000, and (iv) the effective date event of any such assignment by ARRIS hereunder, the licenses granted MERCK hereunder shall be as specified in not cover any intellectual property of such assignee not previously Controlled by ARRIS existing prior to the Assignment and Acceptance, but not earlier than the date which is five (5) Banking Days after the date the Administrative Agent has received the Assignment and Acceptance. Upon the effective date of such Assignment and Acceptance, the Eligible Assignee named therein shall be a Lender for all purposes of this Agreement, with the Commitments and/or Advances therein set forth and, to the extent of such Commitments and/or Advances, the assigning Lender shall be released from its further obligations under this Agreement. Borrower agrees that it shall execute and deliver (against delivery by the assigning Lender to Borrower of such Lender’s Notes) to such assignee Lender, Notes evidencing that assignee Lender’s Commitments and/or Advances, and to the assigning Lender, Notes evidencing the remaining balance of the Commitments and/or Advances retained by the assigning Lenderassignment.
(c) By executing and delivering an Assignment and Acceptance, the Eligible Assignee thereunder acknowledges and agrees that: (i) other than the representation and warranty that it is the legal and beneficial owner of the rights and obligations hereunder being assigned thereby free and clear of any adverse claim, the assigning Lender has made 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 or sufficiency of this Agreement or any other Loan Document; (ii) the assigning Lender has made no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance by Borrower of the Obligations; (iii) it has received a copy of this Agreement, together with copies of the most recent financial statements delivered pursuant to Section 7.1 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) it will, independently and without reliance upon the Administrative Agent or any Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) it appoints and authorizes the Administrative Agent to take such action and to exercise such powers under this Agreement as are delegated to the Administrative Agent by this Agreement; and (vi) 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.
(d) The Administrative Agent shall maintain at the Administrative Agent’s Office a copy of each Assignment and Acceptance delivered to it and a register (the “Register”) of the names and address of each of the Lenders and the Pro Rata Share of the Commitments held by each Lender, giving effect to each Assignment and Acceptance. The Register shall be available during normal business hours for inspection by Borrower or any Lender upon reasonable prior notice to the Administrative Agent. After receipt of a completed Assignment and Acceptance executed by any Lender and an Eligible Assignee, and receipt of an assignment fee of $3,500 from such Lender or Eligible Assignee, the Administrative Agent shall, promptly following the effective date thereof, provide to Borrower and the Lenders a revised Schedule 1.1 giving effect thereto. Borrower, the Administrative Agent and the Lenders shall deem and treat the Persons listed as Lenders in the Register as the holders and owners of the Pro Rata Shares of the Revolving Facility listed therein for all purposes hereof, and no assignment or transfer of any Lender’s rights and obligations hereunder shall be effective, in each case unless and until an Assignment and Acceptance effecting the assignment or transfer thereof shall have been accepted by the Administrative Agent and recorded in the Register as provided above. Prior to such recordation, all amounts owed with respect to the applicable Pro Rata Share of the Revolving Facility shall be owed to the Lender listed in the Register as the owner thereof, and any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is listed in the Register as a Lender shall be conclusive and binding on any subsequent holder, assignee or transferee of the corresponding Pro Rata Share of the Revolving Facility.
(e) Each Lender may from time to time grant participations to one or more banks or other financial institutions in or to all or a portion of its rights and/or obligations under this Agreement; provided, however, that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) the participating banks or other financial institutions shall not be a Lender hereunder for any purpose except, if the participation agreement so provides, for the purposes of Sections 3.5, 3.6, 11.11 and 11.21 but only to the extent that the cost of such benefits to Borrower does not exceed the cost which Borrower would have incurred in respect of the Lender granting such participation absent the participation, (iv) Borrower, the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement, (v) the participation interest shall be expressed as a percentage of the granting Lender’s Pro Rata Share of the Revolving Facility as it then exists and shall not restrict an increase in the Revolving Facility (or the aggregate Commitments pertaining thereto), or in the granting Lender’s rights and obligations hereunder, so long as the amount of the participation interest is not affected thereby and (vi) the consent of the holder of such participation interest shall not be required for amendments or waivers of provisions of the Loan Documents other than those which (A) extend any Amortization Date, any applicable Maturity Date or any other date upon which any payment of money is due to the Lenders, (B) reduce the rate of interest on the Notes, any fee or any other monetary amount payable to the Lenders, (C) reduce the amount of any installment of principal due under the Notes, or (D) release any Guarantor from its Guaranty.
(f) Borrower agrees that upon the occurrence and during the continuance of any Event of Default, each Lender shall be entitled to assign its rights hereunder and under the Loan Documents, or grant participation interests in its rights under this Agreement and the Loan Documents, to any Person, in whole or in any part thereof, notwithstanding any provisions contained herein (including those set forth in subsection (b) above) or in any other Loan Document to the contrary, except that, other than (i) assignments by a Lender to an Affiliate of such Lender or to another Lender or (ii) pledges described in the last sentence of subsection (a) above, no assignment shall be made without the approval of the Administrative Agent.
Appears in 2 contracts
Samples: Research Collaboration and License Agreement (Celera CORP), Research Collaboration and License Agreement (Celera CORP)
Binding Effect; Assignment. (a) This Agreement shall become effective when it shall have been executed by the Borrower and the other Loan Documents to which Borrower is a Party will Administrative Agent and when the Administrative Agent shall have been notified by each Bank that such Bank has executed it and thereafter shall be binding upon and inure to the benefit of the Borrower, the Administrative Agent, Agent and each of the Lenders, Bank and their respective successors and assigns, except that the Borrower may shall not have the right to assign its rights hereunder or thereunder or any interest herein or therein without the prior written consent of all the Lenders. Each Lender represents that it is not acquiring its Note with a view to the distribution thereof within the meaning of the Securities Act of 1933, as amended (subject to any requirement that disposition of such Note must be within the control of such Lender). Any Lender may at any time pledge its Note or any other instrument evidencing its rights as a Lender under this Agreement to a Federal Reserve Bank, but no such pledge shall release that Lender from its obligations hereunder or grant to such Federal Reserve Bank the rights of a Lender hereunder absent foreclosure of such pledgeBanks.
(b) From time Any Bank may assign, participate or otherwise transfer all or any part of, or interest in, such Bank’s rights and obligations hereunder and under the Notes issued to time following the Closing Date, each Lender may assign it hereunder to one or more Eligible Assignees banks or other entities; provided that (i) in the case of any transfer to a Person that is not a Bank, an Affiliate of a Bank or an Approved Fund, unless (except during the continuance of an Event of Default) the Borrower (whose consent shall not be unreasonably withheld or delayed) and the Administrative Agent (whose consent shall not be unreasonably withheld or delayed) shall have expressly agreed in writing, no Bank shall, by reason of any such transfer, be relieved of any of its obligations or responsibilities to the Borrower hereunder, including without limitation the obligation to make Advances in accordance with the provisions of Article II and III, if any, or under any Note issued to it hereunder or the obligation to the Issuing Banks hereunder to participate in Letters of Credit in accordance with the terms of Article IV, and (ii) in the case of any assignment, the amount of the Commitment being assigned pursuant to such assignment shall in no event be less than $5,000,000 (or a lesser amount approved by the Administrative Agent); provided, further, that during the continuance of any Event of Default hereunder, the consent of the Borrower to any such assignment shall not be required. To the extent of any such assignment (but not in the event of any such participation or other transfer) such assignee shall have the same rights and benefits against the Borrower as it would have had if it were a Bank hereunder. However, (i) unless and until the conditions for the Administrative Agent’s treating such assignee as holder pursuant to clause (c) below shall have been satisfied, such assignee shall not be entitled to exercise the rights of a Bank under this Agreement and the Administrative Agent shall not be obligated to make payment of any amount to which such assignee may become entitled hereunder other than to the Bank which assigned its rights to such assignee and (ii) such assignee shall not be included for purposes of determining the number of Banks whose consent shall be required to take any action or refrain from taking any action hereunder or be entitled to exercise any voting rights hereunder unless (A) such assignee shall have acquired the respective assignor’s entire interest under this Agreement and in the Notes made to such assignor or (B) if such assignee shall have acquired less than the respective assignor’s entire interest herein and under such Notes, the Borrower shall have expressly agreed to such inclusion of such assignee and such exercise by such assignee. Nothing contained herein shall impair the ability of any Bank, in its discretion, to agree, solely as between itself and its assignees, participants and other transferees, upon the manner in which such Bank shall exercise its rights under this Agreement and the Notes made to such Bank.
(c) In order to effect any assignment permitted hereunder by a Bank of all or any portion of its Commitment hereunder, the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register (as defined below), an agreement substantially in the form of Exhibit 11.06 hereto (an “Assignment and Acceptance”), together with any Note or Notes subject to such assignment and a processing and recordation fee of $3,500. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in each Assignment and Acceptance, (x) the assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, have the rights and obligations of a Bank hereunder and (y) the Bank assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights 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 Bank’s rights and obligations under this Agreement (including all or a portion of its Commitment, the Advances owing to it and the Note or Notes held by it); provided that, subject to subsection (f) below, (i) such Eligible Assignee, if not then a Lender or an Affiliate of the assigning Lender, shall be approved by the Administrative Agent and Borrower (neither of which approvals shall be unreasonably withheld or delayed), (ii) such assignment shall be evidenced by an Assignment and Acceptance, a copy of which shall be furnished to the Administrative Agent as hereinbelow provided, (iii) except in the case of an assignment to an Affiliate of the assigning Lender, to another Lender or of the entire remaining rights and obligations of the assigning Lender under this Agreement, the assignment such Bank shall not assign a portion of such assigning Lender’s Commitments and/or Advances owing cease to such assigning Lender that is equivalent to less than $3,000,000, and (iv) the effective date of any such assignment shall be as specified in the Assignment and Acceptance, but not earlier than the date which is five (5) Banking Days after the date the Administrative Agent has received the Assignment and Acceptance. Upon the effective date of such Assignment and Acceptance, the Eligible Assignee named therein shall be a Lender for all purposes of this Agreement, with the Commitments and/or Advances therein set forth and, to the extent of such Commitments and/or Advances, the assigning Lender shall be released from its further obligations under this Agreement. Borrower agrees that it shall execute and deliver (against delivery by the assigning Lender to Borrower of such Lender’s Notes) to such assignee Lender, Notes evidencing that assignee Lender’s Commitments and/or Advances, and to the assigning Lender, Notes evidencing the remaining balance of the Commitments and/or Advances retained by the assigning Lenderparty hereto).
(cd) By executing and delivering an Assignment and Acceptance, the Eligible Assignee Bank assignor thereunder acknowledges and agrees thatthe assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than the representation as provided in such Assignment and warranty that it is the legal and beneficial owner of the rights and obligations hereunder being assigned thereby free and clear of any adverse claimAcceptance, the such assigning Lender has made Bank makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness genuineness, sufficiency or sufficiency value of this Agreement or any other Loan Documentinstrument or document furnished pursuant hereto; (ii) the such assigning Lender has made Bank makes no representation or warranty and assumes no responsibility with respect to the financial condition of the Borrower or the performance or observance by the Borrower of the Obligationsany of its obligations under this Agreement or any other instrument or document furnished pursuant hereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the most recent financial statements referred to in Section 7.01(f) (and any later statements delivered pursuant to Section 7.1 8.01(g)(ii)) 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) it such assignee will, independently and without reliance upon the Administrative Agent Agent, such assigning Bank or any Lender other Bank and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) it 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 as are delegated to the Administrative Agent by this Agreementthe 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 LenderBank.
(de) The Administrative Agent shall maintain at the Administrative Agent’s Office its address referred to in Section 11.02 a copy of each Assignment and Acceptance delivered to and accepted by it and a register for the recordation of the names and addresses of the Banks and the Commitment of, and principal amount of the Advances owing to, each Bank from time to time (the “Register”) of the names and address of each of the Lenders and the Pro Rata Share of the Commitments held by each Lender, giving effect to each Assignment and Acceptance). The entries in the Register shall be available during normal business hours conclusive and binding for inspection by Borrower or any Lender upon reasonable prior notice to the Administrative Agent. After receipt of a completed Assignment and Acceptance executed by any Lender and an Eligible Assigneeall purposes, absent manifest error, and receipt of an assignment fee of $3,500 from such Lender or Eligible Assignee, the Administrative Agent shall, promptly following the effective date thereof, provide to Borrower and the Lenders a revised Schedule 1.1 giving effect thereto. Borrower, the Administrative Agent and the Lenders shall deem and Banks may treat the Persons listed as Lenders in the Register as the holders and owners of the Pro Rata Shares of the Revolving Facility listed therein for all purposes hereof, and no assignment or transfer of any Lender’s rights and obligations hereunder shall be effective, in each case unless and until an Assignment and Acceptance effecting the assignment or transfer thereof shall have been accepted by the Administrative Agent and Person whose name is recorded in the Register as provided abovea Bank hereunder for all purposes of this Agreement. Prior to such recordation, all amounts owed with respect to the applicable Pro Rata Share of the Revolving Facility The Register shall be owed to available for inspection by the Lender listed in the Register as the owner thereof, Borrower or any Bank at any reasonable time and any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is listed in the Register as a Lender shall be conclusive and binding on any subsequent holder, assignee or transferee of the corresponding Pro Rata Share of the Revolving Facility.
(e) Each Lender may from time to time grant participations to one or more banks or other financial institutions in or to all or a portion of its rights and/or obligations under this Agreement; provided, however, that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) the participating banks or other financial institutions shall not be a Lender hereunder for any purpose except, if the participation agreement so provides, for the purposes of Sections 3.5, 3.6, 11.11 and 11.21 but only to the extent that the cost of such benefits to Borrower does not exceed the cost which Borrower would have incurred in respect of the Lender granting such participation absent the participation, (iv) Borrower, the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement, (v) the participation interest shall be expressed as a percentage of the granting Lender’s Pro Rata Share of the Revolving Facility as it then exists and shall not restrict an increase in the Revolving Facility (or the aggregate Commitments pertaining thereto), or in the granting Lender’s rights and obligations hereunder, so long as the amount of the participation interest is not affected thereby and (vi) the consent of the holder of such participation interest shall not be required for amendments or waivers of provisions of the Loan Documents other than those which (A) extend any Amortization Date, any applicable Maturity Date or any other date upon which any payment of money is due to the Lenders, (B) reduce the rate of interest on the Notes, any fee or any other monetary amount payable to the Lenders, (C) reduce the amount of any installment of principal due under the Notes, or (D) release any Guarantor from its Guarantyreasonable prior notice.
(f) Borrower agrees that upon Notwithstanding anything contained herein to the occurrence and during the continuance of any Event of Defaultcontrary, each Lender shall be entitled to assign Bank may pledge its rights hereunder right, title and under the Loan Documents, or grant participation interests in its rights interest under this Agreement and any Note made to it to the Loan DocumentsBoard of Governors of the Federal Reserve System, to any Person, in whole or in any part thereof, notwithstanding any provisions contained herein (including those set forth in subsection (b) above) or in any other Loan Document Governmental Authority, as security for financial accommodations or privileges being provided or extended to the contrary, except that, other than (i) assignments such Bank by a Lender to an Affiliate of such Lender or to another Lender or (ii) pledges described in the last sentence of subsection (a) above, no assignment shall be made without the approval of the Administrative AgentGovernmental Authority.
Appears in 2 contracts
Samples: Credit Agreement (Baxter International Inc), Credit Agreement (Baxter International Inc)
Binding Effect; Assignment. (a) This The rights and obligations of this Agreement and the other Loan Documents to which Borrower is a Party will be binding upon shall bind and inure to the benefit of Borrower, the Administrative Agent, each of the Lenders, Parties and their respective successors and assigns. Except as expressly provided herein, except that Borrower the rights and obligations of this Agreement may not assign its rights hereunder or thereunder or be assigned by any interest herein or therein Party without the prior written consent of the other Parties. Within thirty (30) calendar days from the date hereof (the “Assignment Period”), Parent may assign any and all the Lenders. Each Lender represents that it is not acquiring its Note with a view to the distribution thereof within the meaning of the Securities Act of 1933, as amended (subject to any requirement that disposition of such Note must be within the control of such Lender). Any Lender may at any time pledge its Note or any other instrument evidencing its rights as a Lender under this Agreement to a Federal Reserve Bank, but no such pledge shall release that Lender from its obligations hereunder or grant to such Federal Reserve Bank the rights of a Lender hereunder absent foreclosure of such pledge.
(b) From time to time following the Closing Date, each Lender may assign to one or more Eligible Assignees all or any portion of its rights and obligations under this Agreement (including all or a portion of its Commitment, the Advances owing to it and the Note or Notes held by it); provided that, subject to subsection (f) below, (i) such Eligible Assignee, if not then a Lender or an Affiliate of Parent, including (A) the assigning Lender, shall be approved by the Administrative Agent and Borrower (neither of which approvals shall be unreasonably withheld or delayed), (ii) such assignment shall be evidenced by an Assignment and Acceptance, a copy of which shall be furnished Person identified to the Administrative Agent as hereinbelow provided, (iii) except Company by Parent in writing concurrently with the case of an assignment to an Affiliate of the assigning Lender, to another Lender or of the entire remaining rights and obligations of the assigning Lender under this Agreement, the assignment shall not assign a portion of such assigning Lender’s Commitments and/or Advances owing to such assigning Lender that is equivalent to less than $3,000,000, and (iv) the effective date of any such assignment shall be as specified in the Assignment and Acceptance, but not earlier than the date which is five (5) Banking Days after the date the Administrative Agent has received the Assignment and Acceptance. Upon the effective date of such Assignment and Acceptance, the Eligible Assignee named therein shall be a Lender for all purposes execution of this Agreement, with the Commitments and/or Advances therein set forth and, to the extent or (B) any private investment fund managed by a wholly-owned direct or indirect Subsidiary of Parent (such Commitments and/or Advancesassignee, the assigning Lender shall be released from its further obligations under this Agreement. Borrower agrees “Proposed Assignee”), provided that it shall execute and deliver (against delivery by the assigning Lender to Borrower of such Lender’s Notes) to such assignee Lender, Notes evidencing that assignee Lender’s Commitments and/or Advances, and to the assigning Lender, Notes evidencing the remaining balance all of the Commitments and/or Advances retained by following conditions are satisfied (the assigning Lender.
“Permitted Assignment”): (a) the Company’s board of directors determines that, considering the anticipated change in the financial position of the merging companies upon effectiveness of the Permitted Assignment, no reasonable concern exists that the Surviving Corporation will be unable to fulfill the obligations of the Surviving Corporation to its creditors; (b) the proposed assignment would not reasonably be expected to materially delay or significantly increase the risk of not obtaining the expiration or termination of applicable waiting periods under the HSR Act (or any extensions thereof), significantly increase the risk of any Governmental Authority entering an order prohibiting the consummation of the Merger, or significantly increase the risk of not being able to remove any such order on appeal or otherwise; (c) By executing and delivering the Proposed Assignee is an Assignment and Acceptance, entity organized under the Eligible Assignee thereunder acknowledges and agrees that: (i) other than the representation and warranty that it is the legal and beneficial owner Laws of any state of the rights and obligations hereunder being assigned thereby free and clear of any adverse claim, the assigning Lender has made 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 or sufficiency of this Agreement or any other Loan DocumentUnited States; (iid) the assigning Lender has made no representation or warranty and assumes no responsibility with respect Proposed Assignee consents in writing to the financial condition assume all obligations of Borrower or the performance by Borrower of the Obligations; (iii) it has received a copy of this Agreement, together with copies of the most recent financial statements delivered pursuant to Section 7.1 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) it will, independently and without reliance upon the Administrative Agent or any Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action Parent under this Agreement; (ve) it appoints the Proposed Assignee affirms in writing that all representations and authorizes the Administrative Agent to take such action and to exercise such powers under warranties made in this Agreement with respect to Parent as are delegated of the date of this Agreement shall be deemed representations and warranties made with respect to the Administrative Agent by Proposed Assignee as of the date of such assignment (other than (i) Section 3.01, to the extent Proposed Assignee’s state of organization is different from that of Parent, and (ii) Section 4.07); (f) Merger Sub, which upon the Permitted Assignment becoming effective shall be a wholly owned direct or indirect Subsidiary of the Proposed Assignee, re-affirms in writing that all representations and warranties made in this Agreement with respect to Merger Sub as of the date of this Agreement shall be deemed representations and warranties made with respect to Merger Sub as of the date of such assignment; (g) no assignment shall relieve Parent of any of its obligations pursuant to this Agreement; and (vih) Parent delivers to the Company a written notice of consummation of the Permitted Assignment, together with the true, correct and complete assignment documents containing evidence that the conditions to the Permitted Assignment set forth in clauses (c), (d), (e), (f) and (g) of this Section 8.05 have been satisfied. Parent shall promptly notify the Company in writing in the event Parent has determined that it will perform not exercise its right to make a Permitted Assignment. Any purported assignment in accordance with their terms all of the obligations which by the terms violation of this Agreement are required to be performed by it as a Lenderis null and void ab initio.
(d) The Administrative Agent shall maintain at the Administrative Agent’s Office a copy of each Assignment and Acceptance delivered to it and a register (the “Register”) of the names and address of each of the Lenders and the Pro Rata Share of the Commitments held by each Lender, giving effect to each Assignment and Acceptance. The Register shall be available during normal business hours for inspection by Borrower or any Lender upon reasonable prior notice to the Administrative Agent. After receipt of a completed Assignment and Acceptance executed by any Lender and an Eligible Assignee, and receipt of an assignment fee of $3,500 from such Lender or Eligible Assignee, the Administrative Agent shall, promptly following the effective date thereof, provide to Borrower and the Lenders a revised Schedule 1.1 giving effect thereto. Borrower, the Administrative Agent and the Lenders shall deem and treat the Persons listed as Lenders in the Register as the holders and owners of the Pro Rata Shares of the Revolving Facility listed therein for all purposes hereof, and no assignment or transfer of any Lender’s rights and obligations hereunder shall be effective, in each case unless and until an Assignment and Acceptance effecting the assignment or transfer thereof shall have been accepted by the Administrative Agent and recorded in the Register as provided above. Prior to such recordation, all amounts owed with respect to the applicable Pro Rata Share of the Revolving Facility shall be owed to the Lender listed in the Register as the owner thereof, and any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is listed in the Register as a Lender shall be conclusive and binding on any subsequent holder, assignee or transferee of the corresponding Pro Rata Share of the Revolving Facility.
(e) Each Lender may from time to time grant participations to one or more banks or other financial institutions in or to all or a portion of its rights and/or obligations under this Agreement; provided, however, that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) the participating banks or other financial institutions shall not be a Lender hereunder for any purpose except, if the participation agreement so provides, for the purposes of Sections 3.5, 3.6, 11.11 and 11.21 but only to the extent that the cost of such benefits to Borrower does not exceed the cost which Borrower would have incurred in respect of the Lender granting such participation absent the participation, (iv) Borrower, the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement, (v) the participation interest shall be expressed as a percentage of the granting Lender’s Pro Rata Share of the Revolving Facility as it then exists and shall not restrict an increase in the Revolving Facility (or the aggregate Commitments pertaining thereto), or in the granting Lender’s rights and obligations hereunder, so long as the amount of the participation interest is not affected thereby and (vi) the consent of the holder of such participation interest shall not be required for amendments or waivers of provisions of the Loan Documents other than those which (A) extend any Amortization Date, any applicable Maturity Date or any other date upon which any payment of money is due to the Lenders, (B) reduce the rate of interest on the Notes, any fee or any other monetary amount payable to the Lenders, (C) reduce the amount of any installment of principal due under the Notes, or (D) release any Guarantor from its Guaranty.
(f) Borrower agrees that upon the occurrence and during the continuance of any Event of Default, each Lender shall be entitled to assign its rights hereunder and under the Loan Documents, or grant participation interests in its rights under this Agreement and the Loan Documents, to any Person, in whole or in any part thereof, notwithstanding any provisions contained herein (including those set forth in subsection (b) above) or in any other Loan Document to the contrary, except that, other than (i) assignments by a Lender to an Affiliate of such Lender or to another Lender or (ii) pledges described in the last sentence of subsection (a) above, no assignment shall be made without the approval of the Administrative Agent.
Appears in 1 contract
Binding Effect; Assignment. (a) This The provisions of this Agreement and the other Loan Documents to which Borrower is a Party will shall be binding upon and inure to the benefit of Borrower, the Administrative Agent, each of the Lenders, parties hereto and their respective successors and assignsassigns permitted hereby, except that neither Borrower nor any other Party may not assign or otherwise transfer any of its rights or obligations hereunder or thereunder or any interest herein or therein without the prior written consent of all the Administrative Agent and each Lender and no Lender may assign or otherwise transfer any of its rights or obligations hereunder except for the following (any other attempted assignment or transfer by any party hereto shall be null and void):
(i) to an Eligible Assignee in accordance with the provisions of clause (b) of this Section;
(ii) by way of participation in accordance with the provisions of clause (d) of this Section;
(iii) by way of pledge or assignment of a security interest subject to the restrictions of clause (f) of this Section; or
(iv) to an SPC in accordance with the provisions of clause (h) of this Section. Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby, Participants to the extent provided in clause (d) of this Section and, to the extent expressly contemplated hereby, the Related Parties of each of the Administrative Agent, the Issuing Lender and the Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement. Each Lender represents that it is not acquiring its Note Notes with a view to the distribution thereof within the meaning of the Securities Act of 1933, as amended (subject to any requirement that disposition of such Note its Notes must be within the control of such Lender). .
(b) Any Lender may at any time pledge its Note or any other instrument evidencing its rights as a Lender under this Agreement to a Federal Reserve Bank, but no such pledge shall release that Lender from its obligations hereunder or grant to such Federal Reserve Bank the rights of a Lender hereunder absent foreclosure of such pledge.
(b) From time to time following the Closing Date, each Lender may assign to one or more Eligible Assignees all or any a portion of its rights and obligations under this Agreement (including all or a portion of its CommitmentPro Rata Share of the Revolving Commitment (and, to the Advances extent it assigns its Class A Loans, a corresponding portion of its Class A Funding Requirement) and the Loans (including for purposes of this clause (b), participations in L/C Obligations) at the time owing to it and the Note or Notes held by it); provided that, that any such assignment shall be subject to subsection (f) below, the following conditions:
(i) such Eligible Assignee, if not then a Lender or in the case of an Affiliate assignment of the entire remaining amount of the assigning Lender, shall be approved by ’s Class A Funding Requirement and Class A Revolving Obligations or all of the Administrative Agent and Borrower (neither of which approvals shall be unreasonably withheld assigning Lender’s other Loans at the time owing to it or delayed), (ii) such assignment shall be evidenced by an Assignment and Acceptance, a copy of which shall be furnished to the Administrative Agent as hereinbelow provided, (iii) except in the case of an assignment to a Lender, an Affiliate of the assigning Lender, to another a Lender or an Approved Fund, no minimum amount need be assigned;
(ii) in any case not described in subsection (b)(i) of this Section, the amount of the entire remaining rights and obligations Class A Funding Requirement (which for this purpose includes any Class A Loans outstanding thereunder) or other Loans or, if the Commitments are not then in effect, the principal outstanding balance of the Loans of the assigning Lender under this Agreementsubject to each such assignment, determined as of the assignment shall not assign a portion of such assigning Lender’s Commitments and/or Advances owing date the Assignment and Assumption with respect to such assigning Lender that assignment is equivalent delivered to less than $3,000,000the Administrative Agent or, and (iv) the effective date of any such assignment shall be as if “Trade Date” is specified in the Assignment and AcceptanceAssumption, but as of the Trade Date, shall not earlier than be less than, with respect to (A) the date which is five Class A Funding Requirements or Class A Loans, $5,000,000 and (5B) Banking Days after the date other Loans, $1,000,000, unless each of the Administrative Agent and, so long as no Event of Default has received occurred and is continuing, Borrower otherwise consents (each such consent not to be unreasonably withheld or delayed); provided, however, that concurrent assignments to members of an Assignee Group and concurrent assignments from members of an Assignee Group to a single Eligible Assignee (or to an Eligible Assignee and members of its Assignee Group) will be treated as a single assignment for purposes of determining whether such minimum amount has been met;
(iii) each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender’s rights and obligations under this Agreement with respect to the Loans (and, in the case of the Class A Loans, the allocable residual revolving portion of the Revolving Commitment represented by that Lender’s Class A Funding Requirement) assigned, except that this clause (iii) shall not (A) apply to the Swing Line Lender’s rights and obligations in respect of Swing Line Loans or (B) prohibit any Lender from assigning all or a portion of its rights and obligations among separate Commitments on a non-pro rata basis;
(iv) the consent of the Administrative Agent, the Issuing Lender and any Swing Line Lender (such consent not to be unreasonably withheld) shall be required for assignments of any portion of the Revolving Commitment if such assignment is to a Person that is not a Revolving Lender with a Pro Rata Share of the Revolving Commitment, an Affiliate of such Revolving Lender or an Approved Fund with respect to such Revolving Lender;
(v) the parties to each assignment shall execute and deliver to the Administrative Agent an Assignment and AcceptanceAssumption, together with a processing and recordation fee of $3,500, provided, however, that the Administrative Agent may, in its sole discretion, elect to waive such processing and recordation fee in the case of any assignment, and the Eligible Assignee, if it is not a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire; and
(vi) Each assignment of Class A-1 Loans by a Class A-1 Lender must be accompanied by a proportionate assignment to, and assumption by the assignee Lender of, its Class A Funding Requirement, and each assignment of Class A-2 Loans and related Class A Revolving Obligations by a Class A-2 Lender must be accompanied by a proportionate assignment to, and assumption by the assignee Lender of, its Class A Funding Requirement, and the corresponding Class A Loans and Class A Revolving Obligations thereafter made by the assignee Lender shall be treated as under the same sub-Class (i.e., Class A-1 or Class A-2). Upon Subject to acceptance and recording thereof by the Administrative Agent pursuant to clause (c) of this Section, from and after the effective date of such specified in each Assignment and AcceptanceAssumption, the Eligible Assignee named therein thereunder shall be a Lender for all purposes of party to this Agreement, with the Commitments and/or Advances therein set forth Agreement and, to the extent of the interest assigned by such Commitments and/or AdvancesAssignment and Assumption, have the rights and obligations of a Lender under this Agreement, and the assigning Lender shall thereunder shall, to the extent of the interest assigned by such Assignment and Assumption, be released from its further obligations under this Agreement (and, in the case of an Assignment and Assumption covering all of the assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto) but shall continue to be entitled to the benefits of Sections 3.6,3.7 and 11.11 with respect to facts and circumstances occurring prior to the effective date of such assignment. Upon request, Borrower agrees that it and each Co-Borrower (at their sole expense) shall execute and deliver (against delivery by a Note under the assigning Lender relevant Commitment to Borrower of such Lender’s Notes) to such the assignee Lender, Notes evidencing . Any assignment or transfer by a Lender of rights or obligations under this Agreement that assignee Lender’s Commitments and/or Advances, does not comply with this clause shall be treated for purposes of this Agreement as a sale by such Lender of a participation in such rights and to the assigning Lender, Notes evidencing the remaining balance obligations in accordance with clause (d) of the Commitments and/or Advances retained by the assigning Lenderthis Section.
(c) By executing and delivering The Administrative Agent, acting solely for this purpose as an Assignment and Acceptance, the Eligible Assignee thereunder acknowledges and agrees that: (i) other than the representation and warranty that it is the legal and beneficial owner of the rights and obligations hereunder being assigned thereby free and clear of any adverse claim, the assigning Lender has made 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 or sufficiency of this Agreement or any other Loan Document; (ii) the assigning Lender has made no representation or warranty and assumes no responsibility with respect to the financial condition agent of Borrower or and the performance by Borrower of the Obligations; (iii) it has received a copy of this AgreementCo-Borrowers, together with copies of the most recent financial statements delivered pursuant to Section 7.1 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) it will, independently and without reliance upon the Administrative Agent or any Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) it appoints and authorizes the Administrative Agent to take such action and to exercise such powers under this Agreement as are delegated to the Administrative Agent by this Agreement; and (vi) 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.
(d) The Administrative Agent shall maintain at the Administrative Agent’s Office a copy of each Assignment and Acceptance Assumption delivered to it and a register for the recordation of the names and addresses of the Lenders, and the Commitments of, and principal amounts of the Loans and L/C Obligations owing to, each Lender pursuant to the terms hereof from time to time (the “Register”) of the names and address of each of the Lenders and the Pro Rata Share of the Commitments held by each Lender, giving effect to each Assignment and Acceptance). The entries in the Register shall be available during normal business hours for inspection by Borrower or any Lender upon reasonable prior notice to the Administrative Agent. After receipt of a completed Assignment and Acceptance executed by any Lender and an Eligible Assigneeconclusive, and receipt of an assignment fee of $3,500 from such Lender or Eligible AssigneeBorrower, the Administrative Agent shall, promptly following the effective date thereof, provide to Borrower and the Lenders a revised Schedule 1.1 giving effect thereto. BorrowerCo-Borrowers, the Administrative Agent and the Lenders shall deem and may treat the Persons listed as Lenders each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the holders contrary. The Register shall be available for inspection by each of Borrower, each Co-Borrower and owners the Issuing Lender at any reasonable time and from time to time upon reasonable prior notice. In addition, at any time that a request for a consent for a material or substantive change to the Loan Documents is pending, any Lender wishing to consult with other Lenders in connection therewith may request and receive from the Administrative Agent a copy of the Register.
(d) Any Lender may at any time, without the consent of, or notice to, Borrower, any Co-Borrower or the Administrative Agent, sell participations to any Person (other than a natural person or Borrower or any of Borrower’s Affiliates or Subsidiaries) (each, a “Participant”) in all or a portion of that Lender’s rights and/or obligations under this Agreement (including all or a portion of any of its Pro Rata Shares of the Revolving Facility listed therein for all purposes hereof, and no assignment or transfer of any Commitments and/or the Loans (including that Lender’s rights and obligations hereunder shall be effective, participations in each case unless and until an Assignment and Acceptance effecting the assignment or transfer thereof shall have been accepted by the Administrative Agent and recorded in the Register as L/C Obligations and/or Swing Line Loans) owing to it); provided above. Prior to such recordation, all amounts owed with respect to the applicable Pro Rata Share of the Revolving Facility shall be owed to the Lender listed in the Register as the owner thereof, and any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is listed in the Register as a Lender shall be conclusive and binding on any subsequent holder, assignee or transferee of the corresponding Pro Rata Share of the Revolving Facility.
(e) Each Lender may from time to time grant participations to one or more banks or other financial institutions in or to all or a portion of its rights and/or obligations under this Agreement; provided, however, that (i) such that Lender’s obligations under this Agreement shall remain unchanged, (ii) such that Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, obligations and (iii) the participating banks or other financial institutions shall not be a Lender hereunder for any purpose except, if the participation agreement so provides, for the purposes of Sections 3.5, 3.6, 11.11 and 11.21 but only to the extent that the cost of such benefits to Borrower does not exceed the cost which Borrower would have incurred in respect of the Lender granting such participation absent the participation, (iv) Borrower, the Administrative Agent Agent, the Lenders and the other Lenders Issuing Lender shall continue to deal solely and directly with such that Lender in connection with such that Lender’s rights and obligations under this Agreement. Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, (v) the participation interest shall be expressed as a percentage modification or waiver of the granting Lender’s Pro Rata Share any provision of the Revolving Facility as it then exists and shall not restrict an increase in the Revolving Facility (this Agreement; provided that such agreement or the aggregate Commitments pertaining thereto)instrument may provide that such Lender will not, or in the granting Lender’s rights and obligations hereunder, so long as the amount of the participation interest is not affected thereby and (vi) without the consent of the holder Participant, agree to any amendment, waiver or other modification described in Section 11.2 requiring the consent of that Lender and which also affects such participation Participant. Subject to clause (e) of this Section, Borrower agrees that each Participant shall be entitled to the benefits of Sections 3.6 and 3.7 to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to clause (b) of this Section.
(e) A Participant shall not be required for amendments entitled to receive any greater payment under Section 3.6 or waivers of provisions 3.7 than the applicable Lender would have been entitled to receive with respect to the participation sold to such Participant, unless the sale of the Loan Documents other than those which (A) extend any Amortization Date, any applicable Maturity Date or any other date upon which any payment of money participation to such Participant is due made with Borrower’s prior written consent. A Participant that would be a Foreign Lender if it were a Lender shall not be entitled to the Lendersbenefits of Section 3.11(d) unless Borrower is notified of the participation sold to such Participant and such Participant agrees, (B) reduce for the rate benefit of interest on the NotesBorrower, any fee or any other monetary amount payable to the Lenders, (C) reduce the amount of any installment of principal due under the Notes, or (D) release any Guarantor from its Guarantycomply with Section 11.21 as though it were a Lender.
(f) Borrower agrees that upon the occurrence and during the continuance Any Lender may at any time pledge or assign a security interest in all or any portion of any Event of Default, each Lender shall be entitled to assign its rights hereunder and under the Loan Documents, or grant participation interests in its rights under this Agreement (including under its Note, if any) to secure obligations of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank; provided that no such pledge or assignment shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
(g) The words “execution,” “signed,” “signature,” and words of like import in any Assignment and Assumption shall be deemed to include electronic signatures or the Loan Documentskeeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature or the use of a paper-based recordkeeping system, as the case may be, to any Person, in whole or the extent and as provided for in any part thereofapplicable law, notwithstanding any provisions contained herein (including those set forth the Federal Electronic Signatures in subsection (b) above) Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or in any other Loan Document similar state laws based on the Uniform Electronic Transactions Act.
(h) Notwithstanding anything to the contrarycontrary contained herein, except that, other than any Lender (a “Granting Lender”) may grant to an SPC the option to provide all or any part of any Loan that such Granting Lender would otherwise be obligated to make pursuant to this Agreement; provided that (i) assignments nothing herein shall constitute a commitment by a Lender any SPC to an Affiliate of such Lender or to another Lender or (ii) pledges described in the last sentence of subsection (a) abovefund any Loan, no assignment shall be made without the approval of the Administrative Agent.and
Appears in 1 contract
Samples: Loan Agreement (MGM Mirage)
Binding Effect; Assignment. (a) This Agreement and the other Loan Documents to which Borrower is a Party will shall be binding upon and inure to the benefit of Borrower, the Administrative Agent, each of the Lenders, parties and their respective successors and permitted assigns. Nothing in this Agreement shall create or be deemed to create any third party beneficiary rights in any person or entity not a party to this Agreement except as provided below. If the Closing is consummated, except (i) the provisions of this Agreement (including Article III and Article VIII) that Borrower pertain to Equityholders are intended, and shall be, for the benefit of those Equityholders that are not parties to this Agreement as third party beneficiaries, (ii) the provisions of this Agreement (including Article VIII and Section 10.2 are intended, and shall be, for the benefit of the Holder Representative as a third party beneficiary and (iii) the provisions of Section 6.10 are intended, and shall be, for the benefit of the Section 6.10 Indemnified Persons as third party beneficiaries. No assignment of this Agreement or of any rights or obligations hereunder may not assign its rights hereunder be made by any party to this Agreement (by operation of law or thereunder or any interest herein or therein otherwise) without the prior written consent of all the Lendersother parties hereto and any attempted assignment without the required consents shall be void. Each Lender represents that it is not acquiring its Note with a view From and after the Closing, the Holder Representative shall be authorized to the distribution thereof within the meaning execute, for and on behalf of the Securities Act of 1933each Equityholder, as amended (subject any written consent by such Equityholder to any requirement that disposition of such Note must be within the control of such Lender). Any Lender may at any time pledge its Note or assignment by any other instrument evidencing its rights as a Lender under party to this Agreement to a Federal Reserve Bankas required by the foregoing provisions of this Section 0. Notwithstanding the foregoing, but no such pledge shall release that Lender from its obligations hereunder or grant to such Federal Reserve Bank the rights of a Lender hereunder absent foreclosure of such pledge.
(ba) From time to time following the Closing Date, each Lender Parent may assign to one or more Eligible Assignees all or any portion of its rights and obligations under this Agreement to any Affiliate of Parent; and (including b) any or all or a portion of its Commitment, the Advances owing to it rights and interests of Parent and the Note or Notes held by it); provided that, subject to subsection (f) below, Surviving Corporation under this Agreement (i) such Eligible Assignee, if not then a Lender or an Affiliate may be assigned to any purchaser of substantially all of the assigning Lender, shall be approved by the Administrative Agent and Borrower (neither assets of which approvals shall be unreasonably withheld Parent or delayed)any of its Affiliates, (ii) such assignment shall may be evidenced by an Assignment and Acceptance, assigned as a copy matter of which shall be furnished Law to the Administrative Agent as hereinbelow providedsurviving entity in any merger, consolidation, share exchange or reorganization involving Parent or any of its Affiliates, and (iii) except may be assigned as collateral security to any lender or lenders (including any agent for any such lender or lenders) or to any assignee or assignees of such lender, lenders or agent; provided that in the case of an assignment to an Affiliate of the assigning Lenderclause (a) and subclause (b)(i), to another Lender or of the entire remaining rights and Parent shall remain responsible for its obligations of the assigning Lender under set forth in this Agreement, the assignment shall not assign a portion LLS Agreement and the Harvard/DFCI Agreement, and, in the case of such assigning Lender’s Commitments and/or Advances owing to such assigning Lender that is equivalent to less than $3,000,000, subclause (b)(ii) and (iv) iii), Parent shall make proper provision so that the effective date of any such assignment successors and assigns shall be as specified assume the obligations set forth in the Assignment and Acceptance, but not earlier than the date which is five (5) Banking Days after the date the Administrative Agent has received the Assignment and Acceptance. Upon the effective date of such Assignment and Acceptance, the Eligible Assignee named therein shall be a Lender for all purposes of this Agreement, with the Commitments and/or Advances therein set forth and, to the extent of such Commitments and/or Advances, the assigning Lender shall be released from its further obligations under this Agreement. Borrower agrees that it shall execute and deliver (against delivery by the assigning Lender to Borrower of such Lender’s Notes) to such assignee Lender, Notes evidencing that assignee Lender’s Commitments and/or Advances, and to the assigning Lender, Notes evidencing the remaining balance of the Commitments and/or Advances retained by the assigning Lender.
(c) By executing and delivering an Assignment and Acceptance, the Eligible Assignee thereunder acknowledges and agrees that: (i) other than the representation and warranty that it is the legal and beneficial owner of the rights and obligations hereunder being assigned thereby free and clear of any adverse claim, the assigning Lender has made 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 or sufficiency of this Agreement or any other Loan Document; (ii) the assigning Lender has made no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance by Borrower of the Obligations; (iii) it has received a copy of this Agreement, together with copies of the most recent financial statements delivered pursuant to Section 7.1 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) it will, independently and without reliance upon the Administrative Agent or any Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) it appoints and authorizes the Administrative Agent to take such action and to exercise such powers under this Agreement as are delegated to the Administrative Agent by this Agreement; and (vi) 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.
(d) The Administrative Agent shall maintain at the Administrative Agent’s Office a copy of each Assignment and Acceptance delivered to it and a register (the “Register”) of the names and address of each of the Lenders and the Pro Rata Share of the Commitments held by each Lender, giving effect to each Assignment and Acceptance. The Register shall be available during normal business hours for inspection by Borrower or any Lender upon reasonable prior notice to the Administrative Agent. After receipt of a completed Assignment and Acceptance executed by any Lender and an Eligible Assignee, and receipt of an assignment fee of $3,500 from such Lender or Eligible Assignee, the Administrative Agent shall, promptly following the effective date thereof, provide to Borrower and the Lenders a revised Schedule 1.1 giving effect thereto. Borrower, the Administrative Agent and the Lenders shall deem and treat the Persons listed as Lenders in the Register as the holders and owners of the Pro Rata Shares of the Revolving Facility listed therein for all purposes hereof, and no assignment or transfer of any Lender’s rights and obligations hereunder shall be effective, in each case unless and until an Assignment and Acceptance effecting the assignment or transfer thereof shall have been accepted by the Administrative Agent and recorded in the Register as provided above. Prior to such recordation, all amounts owed with respect to the applicable Pro Rata Share of the Revolving Facility shall be owed to the Lender listed in the Register as the owner thereof, and any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is listed in the Register as a Lender shall be conclusive and binding on any subsequent holder, assignee or transferee of the corresponding Pro Rata Share of the Revolving Facility.
(e) Each Lender may from time to time grant participations to one or more banks or other financial institutions in or to all or a portion of its rights and/or obligations under this Agreement; provided, however, that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) the participating banks or other financial institutions shall not be a Lender hereunder for any purpose except, if the participation agreement so provides, for the purposes of Sections 3.5, 3.6, 11.11 and 11.21 but only to the extent that the cost of such benefits to Borrower does not exceed the cost which Borrower would have incurred in respect of the Lender granting such participation absent the participation, (iv) Borrower, the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement, (v) the participation interest shall be expressed as a percentage of the granting Lender’s Pro Rata Share of the Revolving Facility as it then exists and shall not restrict an increase in the Revolving Facility (or the aggregate Commitments pertaining thereto), or in the granting Lender’s rights and obligations hereunder, so long as the amount of the participation interest is not affected thereby and (vi) the consent of the holder of such participation interest shall not be required for amendments or waivers of provisions of the Loan Documents other than those which (A) extend any Amortization Date, any applicable Maturity Date or any other date upon which any payment of money is due to the Lenders, (B) reduce the rate of interest on the Notes, any fee or any other monetary amount payable to the Lenders, (C) reduce the amount of any installment of principal due under the Notes, or (D) release any Guarantor from its Guaranty.
(f) Borrower agrees that upon the occurrence and during the continuance of any Event of Default, each Lender shall be entitled to assign its rights hereunder and under the Loan Documents, or grant participation interests in its rights under this LLS Agreement and the Loan Documents, to any Person, in whole or in any part thereof, notwithstanding any provisions contained herein (including those set forth in subsection (b) above) or in any other Loan Document to the contrary, except that, other than (i) assignments by a Lender to an Affiliate of such Lender or to another Lender or (ii) pledges described in the last sentence of subsection (a) above, no assignment shall be made without the approval of the Administrative AgentHarvard/DFCI Agreement.
Appears in 1 contract
Binding Effect; Assignment. (a) This Agreement and the other Loan Documents to which Borrower is a Party will shall be binding upon and shall inure to the benefit of Borrower, the Administrative Agent, each of the Lenders, parties hereto and their respective permitted successors and assigns. No party to this Agreement may assign or delegate, except that Borrower may not assign its rights hereunder by operation of law or thereunder otherwise, all or any interest herein portion of its rights, obligations or therein liabilities under this Agreement without the prior written consent of the other parties to this Agreement; provided, however, that, without prior written consent, (a) Parent and Merger Sub may assign this Agreement and all the Lenders. Each Lender represents that it is not acquiring its Note with a view to the distribution thereof within the meaning or any portion of the Securities Act of 1933, as amended (subject their respective rights and obligations hereunder to any requirement that disposition direct or indirect wholly-owned Subsidiary of such Note must be within Parent or to any insurer under the control of such Lender). Any Lender may at any time pledge its Note or any other instrument evidencing its rights as a Lender under this Agreement to a Federal Reserve BankR&W Insurance Policy, but no such pledge shall release that Lender from its obligations hereunder or grant to such Federal Reserve Bank the rights of a Lender hereunder absent foreclosure of such pledge.
(b) From time to time following the Closing Date, each Lender Parent may assign to one or more Eligible Assignees all or any portion of its rights and obligations under pursuant to this Agreement (including from and after the Effective Time in connection with a merger or consolidation involving Parent or other disposition of all or a portion of its Commitment, the Advances owing to it and the Note or Notes held by it); provided that, subject to subsection (f) below, (i) such Eligible Assignee, if not then a Lender or an Affiliate substantially all of the assigning Lenderassets of Parent or the Surviving Corporation, shall be approved by the Administrative Agent and Borrower (neither of which approvals shall be unreasonably withheld or delayed), (ii) such assignment shall be evidenced by an Assignment and Acceptance, a copy of which shall be furnished to the Administrative Agent as hereinbelow provided, (iii) except in the case of an assignment to an Affiliate of the assigning Lender, to another Lender or of the entire remaining rights and obligations of the assigning Lender under this Agreement, the assignment shall not assign a portion of such assigning Lender’s Commitments and/or Advances owing to such assigning Lender that is equivalent to less than $3,000,000, and (iv) the effective date of any such assignment shall be as specified in the Assignment and Acceptance, but not earlier than the date which is five (5) Banking Days after the date the Administrative Agent has received the Assignment and Acceptance. Upon the effective date of such Assignment and Acceptance, the Eligible Assignee named therein shall be a Lender for all purposes of this Agreement, with the Commitments and/or Advances therein set forth and, to the extent of such Commitments and/or Advances, the assigning Lender shall be released from its further obligations under this Agreement. Borrower agrees that it shall execute and deliver (against delivery by the assigning Lender to Borrower of such Lender’s Notes) to such assignee Lender, Notes evidencing that assignee Lender’s Commitments and/or Advances, and to the assigning Lender, Notes evidencing the remaining balance of the Commitments and/or Advances retained by the assigning Lender.
(c) By executing and delivering an Assignment and Acceptance, the Eligible Assignee thereunder acknowledges and agrees that: (i) other than the representation and warranty that it is the legal and beneficial owner of the rights and obligations hereunder being assigned thereby free and clear of any adverse claim, the assigning Lender has made 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 or sufficiency of this Agreement Parent may assign all or any other Loan Document; (ii) the assigning Lender has made no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance by Borrower of the Obligations; (iii) it has received a copy of this Agreement, together with copies of the most recent financial statements delivered pursuant to Section 7.1 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) it will, independently and without reliance upon the Administrative Agent or any Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) it appoints and authorizes the Administrative Agent to take such action and to exercise such powers under this Agreement as are delegated to the Administrative Agent by this Agreement; and (vi) 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.
(d) The Administrative Agent shall maintain at the Administrative Agent’s Office a copy of each Assignment and Acceptance delivered to it and a register (the “Register”) of the names and address of each of the Lenders and the Pro Rata Share of the Commitments held by each Lender, giving effect to each Assignment and Acceptance. The Register shall be available during normal business hours for inspection by Borrower or any Lender upon reasonable prior notice to the Administrative Agent. After receipt of a completed Assignment and Acceptance executed by any Lender and an Eligible Assignee, and receipt of an assignment fee of $3,500 from such Lender or Eligible Assignee, the Administrative Agent shall, promptly following the effective date thereof, provide to Borrower and the Lenders a revised Schedule 1.1 giving effect thereto. Borrower, the Administrative Agent and the Lenders shall deem and treat the Persons listed as Lenders in the Register as the holders and owners of the Pro Rata Shares of the Revolving Facility listed therein for all purposes hereof, and no assignment or transfer of any Lender’s rights and obligations hereunder shall be effective, in each case unless and until an Assignment and Acceptance effecting the assignment or transfer thereof shall have been accepted by the Administrative Agent and recorded in the Register as provided above. Prior to such recordation, all amounts owed with respect to the applicable Pro Rata Share of the Revolving Facility shall be owed to the Lender listed in the Register as the owner thereof, and any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is listed in the Register as a Lender shall be conclusive and binding on any subsequent holder, assignee or transferee of the corresponding Pro Rata Share of the Revolving Facility.
(e) Each Lender may from time to time grant participations to one or more banks or other financial institutions in or to all or a portion of its rights and/or obligations under pursuant to this Agreement; providedAgreement upon or following the Closing for collateral security purposes to any Debt Financing Source, howeverand (d) Parent may designate, by written notice to the Company, a Subsidiary that (i) is wholly owned by Parent to be merged with and into the Company in lieu of Merger Sub, in which event all references in this Agreement to Merger Sub shall, to the fullest extent permitted by applicable Laws, be deemed references to such Lender’s obligations under Subsidiary, and in that case, all representations and warranties made in this Agreement with respect to Merger Sub as of the date of this Agreement shall remain unchanged, (ii) be deemed representations and warranties made with respect to such Lender shall remain solely responsible to Subsidiary as of the other parties hereto for the performance date of such obligationsdesignation. No assignment by any party shall relieve such party of any of its obligations hereunder, (iii) the participating banks or other financial institutions shall not be a Lender hereunder for any purpose except, if the participation agreement so providesincluding, for the purposes avoidance of Sections 3.5doubt, 3.6, 11.11 and 11.21 but only to the extent that the cost of such benefits to Borrower does not exceed the cost which Borrower would have incurred Xxxxxx’s Minimum Cash Requirement in respect of the Lender granting such participation absent the participation, (iv) Borrower, the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement, (v) the participation interest shall be expressed Section 6.16(i). Except as a percentage of the granting Lender’s Pro Rata Share of the Revolving Facility as it then exists and shall not restrict an increase in the Revolving Facility (or the aggregate Commitments pertaining thereto), or in the granting Lender’s rights and obligations hereunder, so long as the amount of the participation interest is not affected thereby and (vi) the consent of the holder of such participation interest shall not be required for amendments or waivers of provisions of the Loan Documents other than those which (A) extend any Amortization Date, any applicable Maturity Date or any other date upon which any payment of money is due to the Lenders, (B) reduce the rate of interest on the Notes, any fee or any other monetary amount payable to the Lenders, (C) reduce the amount of any installment of principal due under the Notes, or (D) release any Guarantor from its Guaranty.
(f) Borrower agrees that upon the occurrence and during the continuance of any Event of Default, each Lender shall be entitled to assign its rights hereunder and under the Loan Documents, or grant participation interests in its rights under this Agreement and the Loan Documents, to any Person, in whole or in any part thereof, notwithstanding any provisions contained herein (including those set forth in subsection (b) above) or in this Section 10.8, any other Loan Document purported assignment without such prior written consents shall, to the contraryfullest extent permitted by Law, except that, other than (i) assignments by a Lender to an Affiliate be void and of such Lender or to another Lender or (ii) pledges described in the last sentence of subsection (a) above, no assignment shall be made without the approval of the Administrative Agentforce and effect whatsoever.
Appears in 1 contract
Samples: Merger Agreement (Acuren Corp)
Binding Effect; Assignment. (aA) This Agreement and the other Loan Documents to which Borrower is a Party will shall be binding upon and inure to the benefit of the Borrower, the Administrative Collateral Agent, the Paying Agent and the Administrative Agent and each of the LendersLender, and their respective successors and assigns, except that the Borrower may shall not have the right to assign its rights hereunder or thereunder or any interest herein or therein without the prior written consent of all the Administrative Agent and the Lenders, and any assignment by the Borrower in violation of this Section 10.8 shall be null and void. Each Lender represents that it is not acquiring its Note with a view Notwithstanding anything to the distribution thereof within contrary in the meaning first sentence of the Securities Act of 1933this Section 10.8, as amended (subject to any requirement that disposition of such Note must be within the control of such Lender). Any Lender may at any time pledge its Note time, without the consent of the Borrower or the Administrative Agent, assign all or any other instrument evidencing portion of its rights as and obligations under this Agreement and any Loan Note to a Federal Reserve Bank and each Conduit Lender may assign its rights and obligations under this Agreement to a Federal Reserve BankProgram Support Provider; provided, but that no such assignment or pledge shall release that the transferor Lender from its obligations hereunder or grant to such Federal Reserve Bank the rights of a Lender hereunder absent foreclosure of such pledge.
(b) From time to time following the Closing Date, each hereunder. Each Lender may assign to one or more Eligible Assignees all or any part or portion of, or may grant participations to one or more banks or other entities in all or any part or portion of its rights and obligations under this Agreement hereunder (including all or a portion of its Commitment, the Advances owing to it and the Note its Loan Notes or Notes held by itits Advances); provided thatprovided, subject that each such assignment (A) shall be made pursuant to subsection an Assignment and Assumption, (fB) below, shall be made either (i) to a Permitted Assignee or (ii) to any other Person that is acceptable to the Administrative Agent in its reasonable discretion (such Eligible Assigneeconsent not to be unreasonably withheld, conditioned or delayed) unless an Event of Default or Early Amortization Event shall have occurred and be continuing, and (C) shall require the consent of the Borrower (such consent not to be unreasonably withheld, conditioned or delayed) if not then made during the Availability Period (it being understood that the Borrower shall be deemed to have acted reasonably in withholding, conditioning or delaying any proposed assignment to a Competitor during the Availability Period) unless such assignment is to a Lender or an Affiliate of a Lender or an Event of Default or Early Amortization Event shall have occurred and be continuing; provided, that the assigning Lender, Borrower shall be approved deemed to have consented to any such assignment unless it shall object thereto by written notice to the Administrative Agent within five (5) Business Days after having received notice thereof. The parties to each assignment shall execute and Borrower deliver to the Administrative Agent an Assignment and Assumption, together with a processing and recordation fee in the amount of $3,500; provided, however, that the Administrative Agent may, in its sole discretion, elect to waive such processing and recordation fee in the case of any assignment. [***] = Certain information contained in this document, marked by brackets, has been omitted because it is both not material and would be competitively harmful if publicly disclosed.
(neither B) In connection with any assignment of which approvals shall be unreasonably withheld or delayed)rights and obligations of any Defaulting Lender hereunder, (ii) no such assignment shall be evidenced by an Assignment effective unless and Acceptanceuntil, a copy of which in addition to the other conditions thereto set forth herein, the parties to the assignment shall be furnished make such additional payments to the Administrative Agent in an aggregate amount sufficient, upon distribution thereof as hereinbelow providedappropriate (which may be outright payment, (iii) except in purchases by the case assignee of an assignment to an Affiliate participations or subparticipations, or other compensating actions, including funding, with the consent of the assigning Borrower and the Administrative Agent, the applicable pro rata share of Advances previously requested but not funded by the Defaulting Lender, to another each of which the applicable assignee and assignor hereby irrevocably consent), to (x) pay and satisfy in full all payment liabilities then owed by such Defaulting Lender to the Administrative Agent, or any Lender hereunder (and interest accrued thereon) and (y) acquire (and fund as appropriate) its full pro rata share of all Advances in accordance with its Lender Group Percentage. Notwithstanding the entire remaining foregoing, in the event that any assignment of rights and obligations of any Defaulting Lender hereunder shall become effective under Applicable Law without compliance with the assigning Lender under provisions of this Agreementclause (vi), then the assignment shall not assign a portion assignee of such assigning Lender’s Commitments and/or Advances owing to such assigning Lender that is equivalent to less than $3,000,000, and (iv) the effective date of any such assignment interest shall be as specified in the Assignment and Acceptance, but not earlier than the date which is five (5) Banking Days after the date the Administrative Agent has received the Assignment and Acceptance. Upon the effective date of such Assignment and Acceptance, the Eligible Assignee named therein shall deemed to be a Defaulting Lender for all purposes of this Agreement, with the Commitments and/or Advances therein set forth and, to the extent of Agreement until such Commitments and/or Advances, the assigning Lender shall be released from its further obligations under this Agreement. Borrower agrees that it shall execute and deliver compliance occurs.
(against delivery by the assigning Lender to Borrower of such Lender’s NotesC) to such assignee Lender, Notes evidencing that assignee Lender’s Commitments and/or AdvancesUpon, and to the assigning Lenderextent of, Notes evidencing the remaining balance of the Commitments and/or Advances retained any assignment (unless otherwise stated therein) made by the assigning Lender.
(c) By executing and delivering an Assignment and Acceptanceany Lender hereunder, the Eligible Assignee thereunder acknowledges and agrees that: (i) other than the representation and warranty that it is the legal and beneficial owner assignee or purchaser of the rights and obligations such assignment shall be a Lender hereunder being assigned thereby free and clear of any adverse claim, the assigning Lender has made 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 or sufficiency for all purposes of this Agreement or any other Loan Document; and shall have all the rights, benefits and obligations (ii) including the assigning Lender has made no representation or warranty and assumes no responsibility with respect obligation to the financial condition of Borrower or the performance by Borrower of the Obligations; (iii) it has received a copy of this Agreement, together with copies of the most recent financial statements delivered provide documentation pursuant to Section 7.1 and such other documents and information 2.17(G)) of a Lender hereunder. Each Funding Agent, acting solely for this purpose as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) it will, independently and without reliance upon the Administrative Agent or any Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) it appoints and authorizes the Administrative Agent to take such action and to exercise such powers under this Agreement as are delegated to the Administrative Agent by this Agreement; and (vi) it will perform in accordance with their terms all an agent of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(d) The Administrative Agent Borrower, shall maintain at the Administrative Agent’s Office a copy one of each Assignment and Acceptance delivered to it and its offices a register (the “Register”) for the recordation of the names and address of each addresses of the Lenders in its Lender Group, the outstanding principal amounts (and the Pro Rata Share accrued interest) of the Commitments held by each Lender, giving effect Advances owing to each Assignment Lender in its Lender Group pursuant to the terms hereof from time to time and Acceptanceany assignment of such outstanding Advances. The entries in the Register shall be available during normal business hours for inspection by Borrower or any Lender upon reasonable prior notice to the Administrative Agent. After receipt of a completed Assignment and Acceptance executed by any Lender and an Eligible Assigneeconclusive absent manifest error, and receipt of an assignment fee of $3,500 from such Lender or Eligible Assignee, the Administrative Agent shall, promptly following the effective date thereof, provide to Borrower and the Lenders a revised Schedule 1.1 giving effect thereto. Borrower, the Administrative Agent and the Lenders shall deem and treat the Persons listed as Lenders each Person whose name is recorded in the Register pursuant to the terms hereof as the holders and owners of the Pro Rata Shares of the Revolving Facility listed therein a Lender hereunder for all purposes hereof, and no assignment or transfer of any Lender’s rights and obligations hereunder this Agreement. The Register shall be effectiveavailable for inspection by the Borrower, in each case unless and until an Assignment and Acceptance effecting the assignment or transfer thereof shall have been accepted by the Administrative Agent and recorded in the Register as provided above. Prior to such recordation, all amounts owed with respect to the applicable Pro Rata Share of the Revolving Facility shall be owed to the Lender listed in the Register as the owner thereof, and any request, authority or consent of any Person whoLender, at the any reasonable time of making such request or giving such authority or consent, is listed in the Register as a Lender shall be conclusive and binding on any subsequent holder, assignee or transferee of the corresponding Pro Rata Share of the Revolving Facility.
(e) Each Lender may from time to time grant participations to one or more banks or other financial institutions upon reasonable prior notice.
(D) Any Lender may, without the consent of the Borrower, sell participation interests in or to all or its Advances and obligations hereunder (each such recipient of a portion of its rights and/or obligations under this Agreementparticipation a “Participant”); provided, howeverso long as no Event of Default has occurred and is continuing, the Borrower's consent shall be required for a Lender to sell participation interests in its Advances and obligations hereunder to a Competitor; provided, further, that (i) after giving effect to the sale of such Lenderparticipation, such Xxxxxx’s obligations under this Agreement hereunder and rights to consent to any waiver hereunder or amendment hereof shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) the participating banks or other financial institutions shall not be a all amounts payable to such Lender hereunder for and all rights to consent to any purpose except, waiver hereunder or amendment hereof shall be determined as if the participation agreement so provides, for the purposes of Sections 3.5, 3.6, 11.11 and 11.21 but only to the extent that the cost of such benefits to Borrower does Lender had not exceed the cost which Borrower would have incurred in respect of the Lender granting sold such participation absent interest, and the participation, (iv) Borrower, Borrower and the Administrative Agent and the other Lenders parties hereto shall continue to deal solely and directly with such Lender and not be obligated to deal with such Participant. Each Lender that sells a participation shall, acting solely for this purpose as an agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the outstanding principal amounts (and accrued interest) of each Participant’s interest in the Advances or other obligations under the Transaction Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Transaction [***] = Certain information contained in this document, marked by brackets, has been omitted because it is both not material and would be competitively harmful if publicly disclosed. Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, none of the Administrative Agent, the Collateral Agent or the Paying Agent shall have responsibility for maintaining a Participant Register. Each recipient of a participation shall, to the fullest extent permitted by law, have the same rights, benefits and obligations (including the obligation to provide documentation pursuant to Section 2.17(G)) hereunder with respect to the rights and benefits so participated as it would have if it were a Lender hereunder, except that no Participant shall be entitled to receive any greater payment under Sections 2.12 or 2.17 than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation.
(E) Notwithstanding any other provision of this Agreement to the contrary, (i) a Lender may pledge as collateral, or grant a security interest in, all or any portion of its rights in, to and under this Agreement to a security trustee in connection with the funding by such Lender’s rights and obligations under this Agreement, (v) the participation interest shall be expressed as a percentage Lender of the granting Lender’s Pro Rata Share of the Revolving Facility as it then exists and shall not restrict an increase in the Revolving Facility (or the aggregate Commitments pertaining thereto), or in the granting Lender’s rights and obligations hereunder, so long as the amount of the participation interest is not affected thereby and (vi) Advances without the consent of the holder of Borrower; provided that no such participation interest pledge or grant shall not be required for amendments or waivers of provisions of the Loan Documents other than those which (A) extend any Amortization Date, any applicable Maturity Date or any other date upon which any payment of money is due to the Lenders, (B) reduce the rate of interest on the Notes, any fee or any other monetary amount payable to the Lenders, (C) reduce the amount of any installment of principal due under the Notes, or (D) release any Guarantor such Lender from its Guaranty.
(f) Borrower agrees that upon the occurrence and during the continuance of any Event of Default, each Lender shall be entitled to assign its rights hereunder and under the Loan Documents, or grant participation interests in its rights obligations under this Agreement and the Loan Documents, to any Person, in whole or in any part thereof, notwithstanding any provisions contained herein (including those set forth in subsection (b) above) or in any other Loan Document to the contrary, except that, other than (i) assignments by a Lender to an Affiliate of such Lender or to another Lender or (ii) pledges described in a Conduit Lender may at any time, without any requirement to obtain the last sentence of subsection (a) above, no assignment shall be made without the approval consent of the Administrative AgentAgent or the Borrower, pledge or grant a security interest in all or any portion of its rights (including rights to payment of capital and yield) under this Agreement to a collateral agent or trustee for its commercial paper program.
Appears in 1 contract
Samples: Credit Agreement (Sunrun Inc.)
Binding Effect; Assignment. (a) This Agreement and the other Loan Documents to which Borrower is a Party will shall be binding upon and inure to the benefit of Borrower, the Administrative Agent, each of the Lenders, Parties and their respective successors and permitted assigns. Except as set forth in the immediately following sentence, nothing in this Agreement shall create or be deemed to create any third party beneficiary rights in any Person not a party to this Agreement except that Borrower as set forth in Section 8.6 and except for the Seller Indemnified Parties and the Purchaser Indemnified Parties with respect to their indemnity rights pursuant to Article X and Article XI. The Financing Sources shall be express third party beneficiaries of, and shall be entitled to rely on and enforce the provisions of, Sections 4.3, 12.2, 12.3, 12.4, 12.9 and this Section 12.8. Notwithstanding anything to the contrary herein, this Agreement shall not affect in any respect the rights, obligations and liabilities of the parties to each other relating to the Debt Financing, and nothing herein shall be deemed to modify or limit any such rights, obligations or liabilities. No assignment of this Agreement or of any rights or obligations hereunder may not assign its rights hereunder be made by the Sellers, Holdings or thereunder Purchaser, directly or any interest herein indirectly (by operation of law or therein otherwise), without the prior written consent of all the Lenders. Each Lender represents other Parties and any attempted assignment without the required consents shall be void provided, however, (a) that it is not acquiring its Note with a view to the distribution thereof within the meaning of the Securities Act of 1933, as amended (subject to any requirement that disposition of such Note must be within the control of such Lender). Any Lender may at any time pledge its Note or any other instrument evidencing its rights as a Lender under this Agreement to a Federal Reserve Bank, but no such pledge shall release that Lender from its obligations hereunder or grant to such Federal Reserve Bank the rights of a Lender hereunder absent foreclosure of such pledge.
(b) From time to time following the Closing Date, each Lender Purchaser may assign to one or more Eligible Assignees all or any portion of its rights and obligations under this Agreement (including all or a portion of its Commitment, the Advances owing to it and the Note or Notes held by it); provided that, subject to subsection (f) below, (i) such Eligible Assignee, if not then a Lender or an Affiliate of the assigning Lender, shall be approved by the Administrative Agent and Borrower (neither of which approvals shall be unreasonably withheld or delayed), (ii) such assignment shall be evidenced by an Assignment and Acceptance, a copy of which shall be furnished to the Administrative Agent as hereinbelow provided, (iii) except in the case of an assignment to an Affiliate without the prior consent of the assigning Lenderother Parties, to another Lender or of the entire remaining rights and obligations of the assigning Lender under this Agreement, the (b) no such assignment shall not assign a portion of such assigning Lender’s Commitments and/or Advances owing to such assigning Lender that is equivalent to less than $3,000,000, and (iv) the effective date of any such assignment shall be as specified in the Assignment of Purchaser’s rights or obligations hereunder will relieve Purchaser of any of its obligations hereunder and Acceptance, but not earlier than the date which is five (5) Banking Days after the date the Administrative Agent has received the Assignment and Acceptance. Upon the effective date of such Assignment and Acceptance, the Eligible Assignee named therein shall be a Lender for all purposes of this Agreement, with the Commitments and/or Advances therein set forth and, to the extent of such Commitments and/or Advances, the assigning Lender shall be released from its further obligations under this Agreement. Borrower agrees that it shall execute and deliver (against delivery by the assigning Lender to Borrower of such Lender’s Notes) to such assignee Lender, Notes evidencing that assignee Lender’s Commitments and/or Advances, and to the assigning Lender, Notes evidencing the remaining balance of the Commitments and/or Advances retained by the assigning Lender.
(c) By executing and delivering an Assignment and Acceptance, the Eligible Assignee thereunder acknowledges and agrees that: (i) other than the representation and warranty that it is the legal and beneficial owner of the rights and obligations hereunder being assigned thereby free and clear of any adverse claim, the assigning Lender has made 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 or sufficiency of this Agreement or any other Loan Document; (ii) the assigning Lender has made no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance by Borrower of the Obligations; (iii) it has received a copy of this Agreement, together with copies of the most recent financial statements delivered pursuant to Section 7.1 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) it will, independently and without reliance upon the Administrative Agent or any Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) it appoints and authorizes the Administrative Agent to take such action and to exercise such powers under this Agreement as are delegated to the Administrative Agent by this Agreement; and (vi) 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.
(d) The Administrative Agent shall maintain at the Administrative Agent’s Office a copy of each Assignment and Acceptance delivered to it and a register (the “Register”) of the names and address of each of the Lenders and the Pro Rata Share of the Commitments held by each Lender, giving effect to each Assignment and Acceptance. The Register shall be available during normal business hours for inspection by Borrower or any Lender upon reasonable prior notice to the Administrative Agent. After receipt of a completed Assignment and Acceptance executed by any Lender and an Eligible Assignee, and receipt of an assignment fee of $3,500 from such Lender or Eligible Assignee, the Administrative Agent shall, promptly following the effective date thereof, provide to Borrower and the Lenders a revised Schedule 1.1 giving effect thereto. Borrower, the Administrative Agent and the Lenders shall deem and treat the Persons listed as Lenders in the Register as the holders and owners of the Pro Rata Shares of the Revolving Facility listed therein for all purposes hereof, and no assignment or transfer of any Lender’s rights and obligations hereunder shall be effective, in each case unless and until an Assignment and Acceptance effecting the assignment or transfer thereof Purchaser shall have been accepted by the Administrative Agent and recorded in the Register as provided above. Prior to such recordation, all amounts owed with respect to the applicable Pro Rata Share of the Revolving Facility shall be owed to the Lender listed in the Register as the owner thereof, and any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is listed in the Register as a Lender shall be conclusive and binding on any subsequent holder, assignee or transferee of the corresponding Pro Rata Share of the Revolving Facility.
(e) Each Lender may from time to time grant participations to one or more banks or other financial institutions in or to all or a portion of its rights and/or obligations under this Agreement; provided, however, that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) the participating banks or other financial institutions shall not be a Lender hereunder for any purpose except, if the participation agreement so provides, for the purposes of Sections 3.5, 3.6, 11.11 and 11.21 but only to the extent that the cost of such benefits to Borrower does not exceed the cost which Borrower would have incurred in respect of the Lender granting such participation absent the participation, (iv) Borrower, the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement, (v) the participation interest shall be expressed as a percentage of the granting Lender’s Pro Rata Share of the Revolving Facility as it then exists and shall not restrict an increase in the Revolving Facility (or the aggregate Commitments pertaining thereto), or in the granting Lender’s rights and obligations hereunder, so long as the amount of the participation interest is not affected thereby and (vi) the consent of the holder of such participation interest shall not be required for amendments or waivers of provisions of the Loan Documents other than those which (A) extend any Amortization Date, any applicable Maturity Date or any other date upon which any payment of money is due to the Lenders, (B) reduce the rate of interest on the Notes, any fee or any other monetary amount payable to the Lenders, (C) reduce the amount of any installment of principal due under the Notes, or (D) release any Guarantor from its Guaranty.
(f) Borrower agrees that upon the occurrence and during the continuance of any Event of Default, each Lender shall be entitled right to assign its rights hereunder to a Financing Source as collateral security in connection with the Debt Financing, provided that such assignment is effected only for security purposes and under shall not permit any foreclosure or other execution on such assignment prior to the Loan DocumentsClosing Date. No assignment of any obligations hereunder shall relieve the Parties of any such obligations. Upon any such permitted assignment, or grant participation interests the references in its rights under this Agreement and the Loan Documents, to any Person, in whole or in Party shall also apply to any part thereof, notwithstanding any provisions contained herein (including those set forth in subsection (b) above) or in any other Loan Document to such Party’s assignee unless the contrary, except that, other than (i) assignments by a Lender to an Affiliate of such Lender or to another Lender or (ii) pledges described in the last sentence of subsection (a) above, no assignment shall be made without the approval of the Administrative Agentcontext otherwise requires.
Appears in 1 contract
Binding Effect; Assignment. (a) This Agreement and the other Loan Documents to which Borrower is a Party party will be binding upon and inure to the benefit of Borrower, the Administrative Agent, each of the Lenders, Lenders and their respective successors and assigns, except that that, Borrower may not assign its rights hereunder or thereunder or any interest herein or therein without the prior written consent of all the Lenders. Each Lender represents that it is not acquiring its Note with a view to the distribution thereof within the meaning of the Securities Act of 1933, as amended (subject to Lenders and any requirement that disposition of such Note must attempted assignment shall be within the control of such Lender)void. Any Lender may at any time pledge its Note or any other instrument evidencing its rights as a Lender under this Agreement to a Federal Reserve Bank, but no such pledge shall release that Lender from its obligations hereunder or grant to such Federal Reserve Bank the rights of a Lender hereunder absent foreclosure of such pledge.
(b) From time to time following the Closing Signing Date, each Lender may assign to one or more Eligible Assignees all or any portion of its rights and obligations under this Agreement (including all or a portion Pro Rata Share of its Commitment, the Advances owing to it and the Note or Notes held by it)Commitment and/or Extensions of Credit; provided that, subject to subsection (f) below, that (i) such Eligible Assigneeassignment, if not then to a Lender or an Affiliate of the assigning Lender, shall be approved consented to by Borrower at all times other than during the existence of a Default or Event of Default and Administrative Agent Agent, Issuing Lender and Borrower Swing Line Lender (neither which approval of which approvals Borrower, Administrative Agent, Issuing Lender and Swing Line Lender shall not be unreasonably withheld or delayed), (ii) such assignment shall be evidenced by an Assignment and Acceptance, a copy of which a duly signed and completed Notice of Assignment and Acceptance shall be furnished delivered to the Administrative Agent as hereinbelow providedAgent, (iii) except in the case of an assignment to an Affiliate of the assigning Lender, to another Lender or of the entire remaining rights and obligations Commitment of the assigning Lender under this AgreementLender, the assignment shall not assign a portion of such assigning Lender’s Commitments and/or Advances owing to such assigning Lender that is Pro Rata Share equivalent to less than $3,000,000the Minimum Amount therefor, and (iv) the effective date of any such assignment shall be as specified in the Notice of Assignment and Acceptance, but not earlier than the date which is five (5) Banking Business Days after the date the Administrative Agent has received the Notice of Assignment and Acceptance. Upon the effective date acceptance by Administrative Agent of such Notice Assignment and AcceptanceAcceptance and consent thereto by Administrative Agent, Issuing Lender and Swing Line Lender and payment of the requisite fee described below, the Eligible Assignee named therein shall be a Lender for all purposes of this Agreement, with the Commitments and/or Advances Pro Rata Share therein set forth and, to the extent of such Commitments and/or AdvancesPro Rata Share, the assigning Lender shall be released from its further obligations under this Agreement. Borrower agrees that it shall execute and deliver upon request (against delivery by the assigning Lender to Borrower of such Lender’s Notesany Note) to such assignee Lender, one or more Notes evidencing that assignee Lender’s Commitments and/or Advances's Pro Rata Share, and to the assigning LenderLender if requested, one or more Notes evidencing the remaining balance of the Commitments and/or Advances Pro Rata Share retained by the assigning Lender; provided that Loans made to ALT shall be evidenced by the ALT Global Note only. Administrative Agent's consent to and acceptance of any assignment shall not be deemed to constitute any representation or warranty by any Administrative Agent-Related Person as to any matter.
(c) By executing and delivering an Assignment and Acceptance, the Eligible Assignee thereunder acknowledges and agrees that: (i) other than the representation and warranty that it is the legal and beneficial owner of the rights and obligations hereunder being assigned thereby free and clear of any adverse claim, the assigning Lender has made 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 or sufficiency of this Agreement or any other Loan Document; (ii) the assigning Lender has made no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance by Borrower of the Obligations; (iii) it has received a copy of this Agreement, together with copies of the most recent financial statements delivered pursuant to Section 7.1 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) it will, independently and without reliance upon the Administrative Agent or any Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) it appoints and authorizes the Administrative Agent to take such action and to exercise such powers under this Agreement as are delegated to the Administrative Agent by this Agreement; and (vi) 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.
(d) The Administrative Agent shall maintain at the Administrative Agent’s Office a copy of each Assignment and Acceptance delivered to it and a register (the “Register”) of the names and address of each of the Lenders and the Pro Rata Share of the Commitments held by each Lender, giving effect to each Assignment and Acceptance. The Register shall be available during normal business hours for inspection by Borrower or any Lender upon reasonable prior notice to the Administrative Agent. After receipt of a completed Notice of Assignment and Acceptance executed by any Lender and an Eligible AssigneeAcceptance, and receipt of an assignment fee of $3,500 from such Lender or Eligible AssigneeAssignee (including Affiliates of assigning Lenders), the Administrative Agent shall, promptly following the effective date thereof, provide to Borrower and the Lenders a revised Schedule 1.1 10.03 giving effect thereto. Borrower, the Administrative Agent and the Lenders shall deem and treat the Persons listed as Lenders in the Register as the holders and owners of the Pro Rata Shares of the Revolving Facility listed therein for all purposes hereof, and no assignment or transfer of any Lender’s rights and obligations hereunder shall be effective, in each case unless and until an Assignment and Acceptance effecting the assignment or transfer thereof shall have been accepted by the Administrative Agent and recorded in the Register as provided above. Prior to such recordation, all amounts owed with respect to the applicable Pro Rata Share of the Revolving Facility shall be owed to the Lender listed in the Register as the owner thereof, and any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is listed in the Register as a Lender shall be conclusive and binding on any subsequent holder, assignee or transferee of the corresponding Pro Rata Share of the Revolving Facility.
(ed) Each Lender may from time to time grant participations to one or more banks or other financial institutions in or to Person (including another Lender) all or a any portion of its rights Pro Rata Share of its Commitment and/or obligations under this AgreementExtensions of Credit; provided, however, that (i) such Lender’s 's obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) the participating banks or other financial institutions shall not be a Lender hereunder for any purpose except, if the participation agreement so provides, for the purposes of Sections 3.5, 3.6, 11.11 and 11.21 Section 3 (but only to the extent that the cost of such benefits to Borrower does not exceed the cost which Borrower would have incurred in respect of the such Lender granting such participation absent the participation) and subject to Sections 10.06 and 10.07, (iv) Borrower, the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s 's rights and obligations under this Agreement, (v) the participation interest shall be expressed as a percentage of the granting Lender’s Pro Rata Share of the Revolving Facility as it then exists and shall not restrict an increase in the Revolving Facility (or the aggregate Commitments pertaining thereto), Commitment or in the granting Lender’s rights and obligations hereunder's Pro Rata Share, so long as the amount of the participation interest is not affected thereby thereby, and (vi) the consent of the holder of such participation interest shall not be required for amendments or waivers of provisions of the Loan Documents other than those Documents; provided, however, that the assigning Lender may, in any agreement with a participant, give such participant the right to consent to any matter which (A) extend any Amortization Date, any applicable extends the Maturity Date as to such participant or any other date upon which any payment of money is due to the Lenderssuch participant, (B) reduce reduces the rate of interest on the Notesowing to such participant, any fee or any other monetary amount payable owing to the Lenderssuch participant, (C) reduce reduces the amount of any installment of principal due under the Notesowing to such participant, or (D) release any Guarantor from its Guaranty.
releases of all or substantially all of the Guarantors or releases of all or substantially all of the Collateral (f) Borrower agrees that upon the occurrence and during the continuance of any Event of Default, each Lender shall be entitled to assign its rights hereunder and under the Loan Documents, or grant participation interests in its rights under this Agreement and the Loan Documents, to any Person, in whole or in any part thereof, notwithstanding any provisions contained herein (including those set forth in subsection (b) above) or in any other Loan Document to the contrary, except that, other than (i) assignments by a Lender pursuant to an Affiliate of such Lender or to another Lender or (ii) pledges described in the last sentence of subsection (a) above, no assignment shall be made without the approval of the Administrative AgentSection 10.02).
Appears in 1 contract
Binding Effect; Assignment. (a) This Agreement and the other Loan Documents to which Borrower is a Party will shall be binding upon and shall inure to the benefit of Borrowerthe Company, the Administrative Agent, each of the Lenders, Lender Parties and their respective successors and assigns, except provided, that Borrower may the Company shall not have the right to assign or transfer its rights or obligations hereunder or thereunder or any interest herein or therein except with the prior written consent of the Required Lenders and, absent a continuing Event of Default, the Lenders shall not have the right, following the Syndication, to assign their respective obligations hereunder without the prior written consent of all the Lenders. Each Lender represents that it is Company (not acquiring its Note with a view to the distribution thereof within the meaning of the Securities Act of 1933, as amended (subject to any requirement that disposition of such Note must be within the control of such Lenderunreasonably withheld or delayed.). Any Lender may at any time pledge its Note or any other instrument evidencing its rights as a Lender under this Agreement to a Federal Reserve Bank, but no such pledge shall release that Lender from its obligations hereunder or grant to such Federal Reserve Bank the rights of a Lender hereunder absent foreclosure of such pledge.
(b) From time to time following the Closing Date, each The Initial Lender may assign to one or more Eligible Assignees all or any portion of its rights and obligations under this Agreement (including all or a portion of its Commitment, the Commitment and the Advances at the time owing to it it) without the consent of the Company (the "Syndication"). The Initial Lender may request the Company and the Note or Notes held by it); provided that, subject Borrowing Affiliates to subsection (f) below, (i) such Eligible Assignee, if not then a Lender or an Affiliate of the assigning Lender, shall be approved by the Administrative Agent and Borrower (neither of which approvals shall be unreasonably withheld or delayed), (ii) such assignment shall be evidenced by an Assignment and Acceptance, a copy of which shall be furnished to the Administrative Agent as hereinbelow provided, (iii) except assist in the case of an assignment to an Affiliate of the assigning Lender, to another Lender or of the entire remaining rights and obligations of the assigning Lender under Syndication as contemplated by this Agreement, the assignment shall not assign a portion of such assigning Lender’s Commitments and/or Advances owing to such assigning Lender that is equivalent to less than $3,000,000, and (iv) the effective date of any such assignment shall be as specified in the Assignment and Acceptance, but not earlier than the date which is five (5) Banking Days after the date the Administrative Agent has received the Assignment and Acceptance. Upon the effective date of such Assignment and Acceptance, the Eligible Assignee named therein shall be a Lender for all purposes of this Agreement, with the Commitments and/or Advances therein set forth and, to the extent of such Commitments and/or Advances, the assigning Lender shall be released from its further obligations under this Agreement. Borrower agrees that it shall execute and deliver (against delivery by the assigning Lender to Borrower of such Lender’s Notes) to such assignee Lender, Notes evidencing that assignee Lender’s Commitments and/or Advances, and to the assigning Lender, Notes evidencing the remaining balance of the Commitments and/or Advances retained by the assigning LenderSection.
(c) By executing In addition to and delivering an Assignment and Acceptancewithout limiting the foregoing, each Lender may, without the Eligible Assignee thereunder acknowledges and agrees that: (i) other than the representation and warranty that it is the legal and beneficial owner consent of the rights and obligations hereunder being assigned thereby free and clear of any adverse claimCompany, the assigning Lender has made 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 or sufficiency of this Agreement or any other Loan Document; (ii) the assigning Lender has made no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance by Borrower of the Obligations; (iii) it has received a copy of this Agreement, together with copies of the most recent financial statements delivered pursuant to Section 7.1 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) it will, independently and without reliance upon the Administrative Agent or any Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) it appoints and authorizes the Administrative Agent to take such action and to exercise such powers under this Agreement as are delegated to the Administrative Agent by this Agreement; and (vi) 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.
(d) The Administrative Agent shall maintain at the Administrative Agent’s Office a copy of each Assignment and Acceptance delivered to it and a register (the “Register”) of the names and address of each of the Lenders and the Pro Rata Share of the Commitments held by each Lender, giving effect to each Assignment and Acceptance. The Register shall be available during normal business hours for inspection by Borrower or any Lender upon reasonable prior notice to the Administrative Agent. After receipt of a completed Assignment and Acceptance executed by any Lender and an Eligible Assignee, and receipt of an assignment fee of $3,500 from such Lender or Eligible Assignee, the Administrative Agent shall, promptly following the effective date thereof, provide to Borrower and the Lenders a revised Schedule 1.1 giving effect thereto. Borrower, the Administrative Agent and the Lenders shall deem and treat the Persons listed as Lenders in the Register as the holders and owners of the Pro Rata Shares of the Revolving Facility listed therein for all purposes hereof, and no assignment or transfer of any Lender’s rights and obligations hereunder shall be effective, in each case unless and until an Assignment and Acceptance effecting the assignment or transfer thereof shall have been accepted by the Administrative Agent and recorded in the Register as provided above. Prior to such recordation, all amounts owed with respect to the applicable Pro Rata Share of the Revolving Facility shall be owed to the Lender listed in the Register as the owner thereof, and any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is listed in the Register as a Lender shall be conclusive and binding on any subsequent holder, assignee or transferee of the corresponding Pro Rata Share of the Revolving Facility.
(e) Each Lender may from time to time grant sell participations to one or more banks or other financial institutions entities (a "Participant") in or to all or a portion of its the Lender's rights and/or and obligations under this AgreementAgreement (including all or a portion of the Commitment and the Advances owing to it); providedprovided that, howeverin the case of participations under this subsection 13.5(c), that (i) such the Lender’s 's obligations under this Agreement shall remain unchanged, (ii) such the Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, obligations and (iii) the participating banks or other financial institutions shall not be a Lender hereunder for any purpose except, if the participation agreement so provides, for the purposes of Sections 3.5, 3.6, 11.11 and 11.21 but only to the extent that the cost of such benefits to Borrower does not exceed the cost which Borrower would have incurred in respect of the Lender granting such participation absent the participation, (iv) Borrower, the Administrative Agent and the other Lenders Company shall continue to deal solely and directly with such the Lender in connection with such the Lender’s 's rights and obligations under this Agreement. Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that the Lender shall retain the sole right to enforce this Agreement and to approve any amendment, (v) the participation interest shall be expressed as a percentage of the granting Lender’s Pro Rata Share of the Revolving Facility as it then exists and shall not restrict an increase in the Revolving Facility (modification or the aggregate Commitments pertaining thereto), or in the granting Lender’s rights and obligations hereunder, so long as the amount of the participation interest is not affected thereby and (vi) the consent of the holder of such participation interest shall not be required for amendments or waivers of provisions of the Loan Documents other than those which (A) extend any Amortization Date, any applicable Maturity Date or any other date upon which any payment of money is due to the Lenders, (B) reduce the rate of interest on the Notes, any fee or any other monetary amount payable to the Lenders, (C) reduce the amount waiver of any installment provision of principal due under the Notes, or (D) release any Guarantor from its Guarantythis Agreement.
(fd) Borrower agrees that upon The Affiliated Credit Parties agree to cooperate with the occurrence and during Initial Lender in connection with any syndication. Such cooperation will include, if requested by the continuance of any Event of DefaultInitial Lender, each Lender shall be entitled to assign its rights hereunder and under the Loan Documents, or grant participation interests in its rights under this Agreement and the Loan Documents, to any Person, in whole or in any part thereof, notwithstanding any provisions contained herein (including those set forth in subsection (b) above) or in any other Loan Document to the contrary, except that, other than (i) assignments by making senior officers of the Company available for a meeting with prospective assignees, the Initial Lender to an Affiliate of such Lender or to another Lender or and its agents, and (ii) pledges described providing such other assistance as may be reasonably requested by the Initial Lender and such agents (including, without limitation, providing information to and responding to questions from prospective assignees with respect to the operations, business plans and other matters relating to the Company's and each other Affiliated Credit Party's business on a timely basis and in any manner reasonably requested by the last sentence of subsection (a) above, no assignment shall be made without the approval of the Administrative AgentInitial Lender).
Appears in 1 contract
Samples: Master Equipment Financing Agreement (Nextel International Inc)
Binding Effect; Assignment. (a) This Agreement and the other Loan Documents to which Borrower is a Party will shall be binding upon and inure to the benefit of Borrower, the Administrative Agent, each of Obligors and the Lenders, Bank and their respective successors and assigns, except that Borrower may the Obligors shall not have the right to assign its rights or obligations hereunder or thereunder or any interest herein or therein without the prior written consent of the Bank. The Bank may (A) assign all or any part of, or any interest in, its rights and obligations hereunder and under any instruments delivered hereunder upon consent by the Lenders. Each Lender represents Borrower, which (i) may not be unreasonably denied, delayed or withheld (provided that it any assignment to a competitor shall be deemed not to be unreasonable) and (ii) (x) shall not be required for any assignments to affiliates of Bank or (y) if an Event of Default has occurred or is not acquiring continuing or (B) sell a participation in all or any part of, or any interest in, its Note rights and obligations hereunder and under any instruments delivered hereunder; and in connection with a view such assignment or participation may transfer to the distribution assignee or participant, as applicable thereof within such information concerning the meaning Obligors as the said assignee or participant may reasonably require (unless and to the extent expressly prohibited by applicable law), provided that such assignment or participation shall not increase or create additional costs to the Obligors. To the extent of such assignment, such assignee shall have the same rights and benefits against the Obligors as it would have had if it were the Bank hereunder. The Obligors acknowledge that the Bank may, from time to time, book or re-book, as applicable, the Advance under this Agreement through any lending office of the Securities Act of 1933Bank, as amended (subject in each case followed by prompt written notice to any requirement that disposition of such Note must be within the control of such Lender)Obligors. Any Lender lender may at any time pledge its Note or any other instrument evidencing its rights as assign a Lender under this Agreement to a Federal Reserve Bank, but no such pledge shall release that Lender from its obligations hereunder or grant to such Federal Reserve Bank the rights of a Lender hereunder absent foreclosure of such pledge.
(b) From time to time following the Closing Date, each Lender may assign to one or more Eligible Assignees security interest in all or any portion of its rights and obligations under this Agreement (to secure obligations of such lender, including all any pledge or assignment to secure obligations to a portion Federal Reserve Bank; provided that no such pledge or assignment shall release such lender from any of its Commitmentobligations hereunder or substitute any such pledgee or assignee for such lender as a party hereto. The Borrower shall maintain at one of its offices a register for the recordation of the names and addresses of the Bank and applicable assignees, and the applicable commitments of, and principal amounts (and stated interest) of the applicable loans owing to, the Advances owing Bank and any assignee pursuant to it the terms hereof from time to time (the “Register”). The entries in the Register shall be conclusive absent manifest error, and the Note or Notes held by it); provided thatBorrower, subject to subsection (f) below, (i) such Eligible Assignee, if not then a Lender or an Affiliate of the assigning Lender, Bank and the applicable assignees shall be approved by treat each person whose name is recorded in the Administrative Agent and Borrower (neither of which approvals shall be unreasonably withheld or delayed), (ii) such assignment shall be evidenced by an Assignment and Acceptance, a copy of which shall be furnished Register pursuant to the Administrative Agent terms hereof as hereinbelow provided, (iii) except in the case of an assignment to an Affiliate of the assigning Lender, to another Lender or of the entire remaining rights and obligations of the assigning Lender under this Agreement, the assignment shall not assign a portion of such assigning Lender’s Commitments and/or Advances owing to such assigning Lender that is equivalent to less than $3,000,000, and (iv) the effective date of any such assignment shall be as specified in the Assignment and Acceptance, but not earlier than the date which is five (5) Banking Days after the date the Administrative Agent has received the Assignment and Acceptance. Upon the effective date of such Assignment and Acceptance, the Eligible Assignee named therein shall be a Lender lender hereunder for all purposes of this Agreement, with the Commitments and/or Advances therein set forth and, to the extent of such Commitments and/or Advances, the assigning Lender shall be released from its further obligations under this Agreement. Borrower agrees that it shall execute and deliver (against delivery by the assigning Lender to Borrower of such Lender’s Notes) to such assignee Lender, Notes evidencing that assignee Lender’s Commitments and/or Advances, and to the assigning Lender, Notes evidencing the remaining balance of the Commitments and/or Advances retained by the assigning Lender.
(c) By executing and delivering an Assignment and Acceptance, the Eligible Assignee thereunder acknowledges and agrees that: (i) other than the representation and warranty that it is the legal and beneficial owner of the rights and obligations hereunder being assigned thereby free and clear of any adverse claim, the assigning Lender has made 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 or sufficiency of this Agreement or any other Loan Document; (ii) the assigning Lender has made no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance by Borrower of the Obligations; (iii) it has received a copy of this Agreement, together with copies of the most recent financial statements delivered pursuant to Section 7.1 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) it will, independently and without reliance upon the Administrative Agent or any Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) it appoints and authorizes the Administrative Agent to take such action and to exercise such powers under this Agreement as are delegated to the Administrative Agent by this Agreement; and (vi) 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.
(d) The Administrative Agent shall maintain at the Administrative Agent’s Office a copy of each Assignment and Acceptance delivered to it and a register (the “Register”) of the names and address of each of the Lenders and the Pro Rata Share of the Commitments held by each Lender, giving effect to each Assignment and Acceptance. The Register shall be available during normal business hours for inspection by Borrower the Borrower, the Bank or any Lender assignee, at any reasonable time and from time to time upon reasonable prior notice to the Administrative Agentnotice. After receipt of a completed Assignment and Acceptance executed by any Lender and an Eligible Assignee, and receipt of an assignment fee of $3,500 from such Lender or Eligible Assignee, the Administrative Agent shall, promptly following the effective date thereof, provide to Borrower and the Lenders a revised Schedule 1.1 giving effect thereto. Borrower, the Administrative Agent and the Lenders shall deem and treat the Persons listed as Lenders in the Register as the holders and owners of the Pro Rata Shares of the Revolving Facility listed therein for all purposes hereof, and no No assignment or transfer of any Lender’s rights and obligations such commitment or loan hereunder shall be effective, in each case case, unless and until an Assignment and Acceptance effecting the assignment or transfer thereof shall have been accepted by the Administrative Agent and recorded in the Register as provided abovefollowing receipt of the required forms, documents or other certifications, appropriately completed, necessary for such assignee to be exempt from, or entitled to a reduced rate of tax on payments pursuant to this Agreement and the Notes, and to the extent that any such form, document or certification becomes obsolete, such assignee shall upon written request, provide either an updated or successor form, document or certification to the Borrower. Prior The Bank, when selling a participation pursuant to such recordation, all this Section 20 shall maintain a register on which it records the name and address of each participant and the principal amounts owed of (and stated interest on) each participant’s participation interest with respect to the applicable Pro Rata Share loan (a “Participant Register”); provided that the Bank shall have no obligation to disclose all or any portion of the Revolving Facility shall be owed Participant Register to any person (including the Lender listed in the Register as the owner thereof, and any request, authority or consent identity of any Person whoparticipant or any information relating to a participant’s interest in any commitments, at the time of making such request loans or giving such authority or consent, is listed in the Register as a Lender shall be conclusive and binding on any subsequent holder, assignee or transferee of the corresponding Pro Rata Share of the Revolving Facility.
(e) Each Lender may from time to time grant participations to one or more banks or its other financial institutions in or to all or a portion of its rights and/or obligations under this Agreement; provided, however, that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) the participating banks or other financial institutions shall not be a Lender hereunder for any purpose except, if the participation agreement so provides, for the purposes of Sections 3.5, 3.6, 11.11 and 11.21 but only except to the extent that the cost relevant parties, acting reasonably and in good faith, determine that such disclosure is necessary to establish that such commitment, loan or other obligation is in registered form under Treasury Regulation Section 5f.103-1 and Proposed Treasury Regulation Section 1.163-5(b) and within the meaning of such benefits to Borrower does not exceed the cost which Borrower would have incurred in respect Section 163(f), 871(h)(2) and 881(c)(2) of the Lender granting such participation Code. Unless otherwise required by the Internal Revenue Service, any disclosure required by the foregoing sentence shall be made by the Bank directly and solely to the Internal Revenue Service. The entries in the Participant Register shall be conclusive absent the participationmanifest error, (iv) Borrower, the Administrative Agent and the other Lenders Bank shall continue treat each person whose name is recorded in the Participant Register as the owner of a participation with respect to deal solely and directly with such Lender in connection with such Lender’s rights and obligations the loan for all purposes under this Agreement, (v) notwithstanding any notice to the participation interest shall be expressed as a percentage of the granting Lender’s Pro Rata Share of the Revolving Facility as it then exists and shall not restrict an increase in the Revolving Facility (or the aggregate Commitments pertaining thereto)contrary. Notwithstanding anything set forth herein, or in the granting Lender’s rights and obligations hereunder, so long as the amount of the participation interest is not affected thereby and (vi) the consent of the holder of such participation interest shall not be required for amendments or waivers of provisions of the Loan Documents other than those which (A) extend any Amortization Date, any applicable Maturity Date or any other date upon which any payment of money is due to the Lenders, (B) reduce the rate of interest on the Notes, any fee or any other monetary amount payable to the Lenders, (C) reduce the amount of any installment of principal due under the Notes, or (D) release any Guarantor from its Guaranty.
(f) Borrower agrees that upon the occurrence and during the continuance of any Event of Default, each Lender Obligor shall be entitled deemed to assign its rights hereunder and under have been given if not expressly refused by such Obligor on or prior to 10 days after notice has been given in accordance with the Loan Documents, or grant participation interests notice provisions in its rights under this Agreement and the Loan Documents, to any Person, in whole or in any part thereof, notwithstanding any provisions contained herein (including those set forth in subsection (b) above) or in any other Loan Document to the contrary, except that, other than (i) assignments by a Lender to an Affiliate of such Lender or to another Lender or (ii) pledges described in the last sentence of subsection (a) above, no assignment shall be made without the approval of the Administrative AgentSection 13.
Appears in 1 contract
Samples: Credit Agreement (Eve Holding, Inc.)
Binding Effect; Assignment. (a) This Agreement and the other Loan Documents to which Borrower is a Party will be binding upon shall bind and inure to the benefit of Borrowerthe parties, the Administrative Agenttheir legal representatives, each of the Lenders, and their respective successors and assigns, except that neither the Borrower nor any Guarantor may not assign or transfer its rights hereunder or thereunder or any interest interests herein or therein without the prior written consent of all the Lenders. Each Lender represents that it is not acquiring its Note with a view to the distribution thereof within the meaning of the Securities Act of 1933, as amended (subject to any requirement that disposition of such Note must be within the control of such Lender). Any Lender may at any time pledge its Note or any other instrument evidencing its rights as a Lender under this Agreement to a Federal Reserve Bank, but no such pledge shall release that Lender from its obligations hereunder or grant to such Federal Reserve Bank the rights of a Lender hereunder absent foreclosure of such pledgeBanks.
(b) From time to time following the Closing Date, each Lender Each Bank may assign to one or more Eligible Assignees all or any portion of its rights and obligations under this Agreement (including all or a portion of its Commitment, the Advances owing to it and the Note or Notes held by it); provided that, subject to subsection (f) below, (i) such Eligible Assignee, if not then a Lender or an Affiliate of the assigning Lender, shall be approved by the Administrative Agent and Borrower (neither of which approvals shall be unreasonably withheld or delayed), (ii) such assignment shall be evidenced by an Assignment and Acceptance, a copy of which shall be furnished to the Administrative Agent as hereinbelow provided, (iii) except in the case of an assignment to an Affiliate of the assigning Lender, to another Lender or of the entire remaining rights and obligations of the assigning Lender under this Agreement, the assignment shall not assign a portion of such assigning Lender’s Commitments and/or Advances owing to such assigning Lender that is equivalent to less than $3,000,000, and (iv) the effective date of any such assignment shall be as specified in the Assignment and Acceptance, but not earlier than the date which is five (5) Banking Days after the date the Administrative Agent has received the Assignment and Acceptance. Upon the effective date of such Assignment and Acceptance, the Eligible Assignee named therein shall be a Lender for all purposes of this Agreement, with the Commitments and/or Advances therein set forth and, to the extent of such Commitments and/or Advances, the assigning Lender shall be released from its further obligations under this Agreement. Borrower agrees that it shall execute and deliver (against delivery by the assigning Lender to Borrower of such Lender’s Notes) to such assignee Lender, Notes evidencing that assignee Lender’s Commitments and/or Advances, and to the assigning Lender, Notes evidencing the remaining balance of the Commitments and/or Advances retained by the assigning Lender.
(c) By executing and delivering an Assignment and Acceptance, the Eligible Assignee thereunder acknowledges and agrees that: (i) other than the representation and warranty that it is the legal and beneficial owner of the rights and obligations hereunder being assigned thereby free and clear of any adverse claim, the assigning Lender has made 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 or sufficiency of this Agreement or any other Loan Document; (ii) the assigning Lender has made no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance by Borrower of the Obligations; (iii) it has received a copy of this Agreement, together with copies of the most recent financial statements delivered pursuant to Section 7.1 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) it will, independently and without reliance upon the Administrative Agent or any Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) it appoints and authorizes the Administrative Agent to take such action and to exercise such powers under this Agreement as are delegated to the Administrative Agent by this Agreement; and (vi) 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.
(d) The Administrative Agent shall maintain at the Administrative Agent’s Office a copy of each Assignment and Acceptance delivered to it and a register (the “Register”) of the names and address of each of the Lenders and the Pro Rata Share of the Commitments held by each Lender, giving effect to each Assignment and Acceptance. The Register shall be available during normal business hours for inspection by Borrower or any Lender upon reasonable prior notice to the Administrative Agent. After receipt of a completed Assignment and Acceptance executed by any Lender and an Eligible Assignee, and receipt of an assignment fee of $3,500 from such Lender or Eligible Assignee, the Administrative Agent shall, promptly following the effective date thereof, provide to Borrower and the Lenders a revised Schedule 1.1 giving effect thereto. Borrower, the Administrative Agent and the Lenders shall deem and treat the Persons listed as Lenders in the Register as the holders and owners of the Pro Rata Shares of the Revolving Facility listed therein for all purposes hereof, and no assignment or transfer of any Lender’s rights and obligations hereunder shall be effective, in each case unless and until an Assignment and Acceptance effecting the assignment or transfer thereof shall have been accepted by the Administrative Agent and recorded in the Register as provided above. Prior to such recordation, all amounts owed with respect to the applicable Pro Rata Share of the Revolving Facility shall be owed to the Lender listed in the Register as the owner thereof, and any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is listed in the Register as a Lender shall be conclusive and binding on any subsequent holder, assignee or transferee of the corresponding Pro Rata Share of the Revolving Facility.
(e) Each Lender may from time to time grant participations to one or more banks or other financial institutions in or to all or a portion of its rights and/or and obligations hereunder (including, without limitation, all or a portion of its Total Commitments or its Loans) to (i) a Bank, (ii) an affiliate of a Bank or (iii) any other commercial bank or financial institution reasonably acceptable to the Agent and, so long as no Default or Event of Default has occurred and is continuing, the Borrower (the consent of the Borrower shall not be unreasonably withheld or delayed and such consent shall be deemed given if the Borrower does not notify the assigning Bank and the Agent of any objection within two Business Days after the Borrower has been provided notice of the proposed assignment by the assigning Bank or the Agent); provided that (i) any such assignment shall be in a minimum aggregate amount of $5,000,000 (or, if less, the remaining amount of the Total Commitment of the assigning Bank) of the Total Commitments and in integral multiples of $1,000,000 above such amount and (ii) any such assignment shall be of a constant, not varying, percentage of all the assigning Bank's rights and obligations under this Agreement; provided. Upon receipt by the assigning Bank of the Agent's and Borrower's (provided no Default or Event of Default has occurred and is continuing) written consent, howeverthe execution and delivery to the Agent of an assignment agreement between the assigning Bank and the assignee, the delivery to the Agent of a transfer fee of $3,500 payable to the Agent for its own account, and the making of any payment by the assignee required by the assigning Bank, this Agreement shall be deemed to be amended to the extent, and only to the extent, necessary to reflect the addition of such assignee, and the assignee shall for all purposes be a Bank party hereto and shall have, to the extent of such assignment, the same rights and obligations as a Bank hereunder. Upon the consummation of any assignment, the assigning Bank shall be relieved from its obligations hereunder to the extent of the obligations so assigned. Notwithstanding anything herein to the contrary, nothing herein shall prevent an assignment by any Bank to a Federal Reserve Bank in support of borrowings made by such Bank from such Federal Reseve Bank.
(c) Each Bank may grant participations in all or any part of its Revolving Credit Loans and may grant subparticipations in all or any part of its Employee Loan Participations to any commercial bank or other financial institution. Each participation shall be in an amount equal to or in excess of $5,000,000. A participant shall not have any rights under this Agreement or any other document delivered in connection herewith (the participant's rights against the Bank in respect of such participation to be those set forth in the agreement executed by the Bank in favor of the participant relating thereto, which agreement with respect to such participation shall not restrict the Bank's ability to make any modification, amendment or waiver to this Agreement without the consent of the participant, except that the Bank may agree with any participant that the Bank will not, without such participant's consent, (i) extend or increase the amount of the Revolving Credit Commitments or the Employee Loan Participations, (ii) agree to extend the final maturity of the Notes, (iii) agree to reduce the principal amount of, or rate of interest on, the Notes, (iv) agree to release any material portion of the collateral or Employee Pledged Shares and (v) except as permitted under Section 7.3(a) or (b), agree to release the Borrower or all or substantially all of the Guarantors from its or their respective obligations under the Credit Documents). All amounts payable by the Borrower under this Agreement shall be determined as if a Bank had not sold such Lender’s participation. The Borrower acknowledges and agrees that any participant described in this Section 10.2 will, for purposes of Sections 2.12, 2.14, 2.16 and 2.17, be deemed to be a Bank hereunder, provided that such participant shall not be entitled to receive any more than the Bank would have received had such participation not been made. In the event of any such sale by a Bank of participating interests to a participant, such Bank's obligations under this Agreement shall remain unchanged, (ii) such Lender Bank shall remain solely responsible to the other parties hereto for the performance thereof, such Bank shall remain the holder of such obligationsany obligation for all purposes under this Agreement, (iii) the participating banks or other financial institutions shall not be a Lender hereunder for any purpose except, if the participation agreement so provides, for the purposes of Sections 3.5, 3.6, 11.11 and 11.21 but only to the extent that the cost of such benefits to Borrower does not exceed the cost which Borrower would have incurred in respect of the Lender granting such participation absent the participation, (iv) Borrower, the Administrative Agent and the other Lenders Borrower shall continue to deal solely and directly with such Lender Bank in connection with such Lender’s the Bank's rights and obligations under this Agreement, (v) the participation interest shall be expressed as a percentage of the granting Lender’s Pro Rata Share of the Revolving Facility as it then exists and shall not restrict an increase in the Revolving Facility (or the aggregate Commitments pertaining thereto), or in the granting Lender’s rights and obligations hereunder, so long as the amount of the participation interest is not affected thereby and (vi) the consent of the holder of such participation interest shall not be required for amendments or waivers of provisions of the Loan Documents other than those which (A) extend any Amortization Date, any applicable Maturity Date or any other date upon which any payment of money is due to the Lenders, (B) reduce the rate of interest on the Notes, any fee or any other monetary amount payable to the Lenders, (C) reduce the amount of any installment of principal due under the Notes, or (D) release any Guarantor from its Guaranty.
(f) Borrower agrees that upon the occurrence and during the continuance of any Event of Default, each Lender shall be entitled to assign its rights hereunder and under the Loan Documents, or grant participation interests in its rights under this Agreement and the Loan Documents, to any Person, in whole or in any part thereof, notwithstanding any provisions contained herein (including those set forth in subsection (b) above) or in any other Loan Document to the contrary, except that, other than (i) assignments by a Lender to an Affiliate of such Lender or to another Lender or (ii) pledges described in the last sentence of subsection (a) above, no assignment shall be made without the approval of the Administrative Agent.
Appears in 1 contract
Samples: Credit Agreement (Watson Wyatt & Co)
Binding Effect; Assignment. (a) This Agreement and the other Loan Documents to which Borrower is a Party will shall be binding upon on and inure to the benefit of Borrower, the Administrative Agent, each of the Lenders, parties and their respective successors and permitted assigns. Nothing in this Agreement shall create or be deemed to create any third party beneficiary rights in any person or entity (including any employee or person engaged by the Company in any capacity) not a party to this Agreement. The Company will require any successor (whether direct or indirect, except that Borrower may not assign its rights hereunder by merger, purchase, consolidation or thereunder or any interest herein or therein without the prior written consent of all the Lenders. Each Lender represents that it is not acquiring its Note with a view to the distribution thereof within the meaning otherwise) of the Securities Act Company to make an express assumption of 1933the obligations hereunder and cause any successor (whether direct or indirect, as amended (subject by merger, purchase, consolidation or otherwise) to any requirement that disposition all or substantially all of such Note must be within the control business and/or assets of such Lender). Any Lender may at any time pledge its Note or any other instrument evidencing its rights as a Lender the Company to agree to perform all parts and provisions under this Agreement in the same manner and to the same extent that the Company would be required to perform it if no such succession had taken place. Failure of the Company to obtain such agreement prior to the effectiveness of any such succession shall be a breach of this Agreement and shall entitle Employee to compensation from the Company in the same amount and on the same terms as he would be entitled to hereunder if he is subject to a Federal Reserve BankConstruction Termination, but no except for purposes of implementing the foregoing, the date on which any such pledge succession becomes effective shall release that Lender from its obligations hereunder be deemed the date of Termination. As used in this Agreement, Company shall mean the Company as hereinbefore defined and any successor to the business and/or assets of the Company which executes and delivers the agreement provided for in this section 8, or grant to such Federal Reserve Bank which otherwise becomes bound by all the terms and provisions of this Agreement by operation of law. This Agreement and all rights of a Lender the Employee hereunder absent foreclosure of shall inure to the benefit of, and be enforceable by the Employee s personal or legal representatives, executors, administrators, successors, heirs, distributees, devisees and legatees. If the Employee should die after any amounts shall become payable to him hereunder, all such pledge.
(b) From time to time following the Closing Dateamounts, each Lender may assign to one or more Eligible Assignees all or any portion of its rights and obligations under this Agreement (including all or a portion of its Commitment, the Advances owing to it and the Note or Notes held by it); unless otherwise provided that, subject to subsection (f) below, (i) such Eligible Assignee, if not then a Lender or an Affiliate of the assigning Lenderfor herein, shall be approved by the Administrative Agent and Borrower (neither of which approvals shall be unreasonably withheld or delayed), (ii) such assignment shall be evidenced by an Assignment and Acceptance, a copy of which shall be furnished to the Administrative Agent as hereinbelow provided, (iii) except in the case of an assignment to an Affiliate of the assigning Lender, to another Lender or of the entire remaining rights and obligations of the assigning Lender under this Agreement, the assignment shall not assign a portion of such assigning Lender’s Commitments and/or Advances owing to such assigning Lender that is equivalent to less than $3,000,000, and (iv) the effective date of any such assignment shall be as specified in the Assignment and Acceptance, but not earlier than the date which is five (5) Banking Days after the date the Administrative Agent has received the Assignment and Acceptance. Upon the effective date of such Assignment and Acceptance, the Eligible Assignee named therein shall be a Lender for all purposes of this Agreement, with the Commitments and/or Advances therein set forth and, to the extent of such Commitments and/or Advances, the assigning Lender shall be released from its further obligations under this Agreement. Borrower agrees that it shall execute and deliver (against delivery by the assigning Lender to Borrower of such Lender’s Notes) to such assignee Lender, Notes evidencing that assignee Lender’s Commitments and/or Advances, and to the assigning Lender, Notes evidencing the remaining balance of the Commitments and/or Advances retained by the assigning Lender.
(c) By executing and delivering an Assignment and Acceptance, the Eligible Assignee thereunder acknowledges and agrees that: (i) other than the representation and warranty that it is the legal and beneficial owner of the rights and obligations hereunder being assigned thereby free and clear of any adverse claim, the assigning Lender has made 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 or sufficiency of this Agreement or any other Loan Document; (ii) the assigning Lender has made no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance by Borrower of the Obligations; (iii) it has received a copy of this Agreement, together with copies of the most recent financial statements delivered pursuant to Section 7.1 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) it will, independently and without reliance upon the Administrative Agent or any Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) it appoints and authorizes the Administrative Agent to take such action and to exercise such powers under this Agreement as are delegated to the Administrative Agent by this Agreement; and (vi) it will perform paid 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.
(d) The Administrative Agent shall maintain at the Administrative Agent’s Office a copy of each Assignment and Acceptance delivered to it and a register (the “Register”) of the names and address of each of the Lenders and the Pro Rata Share of the Commitments held by each Lender, giving effect to each Assignment and Acceptance. The Register shall be available during normal business hours for inspection by Borrower or any Lender upon reasonable prior notice to the Administrative Agent. After receipt of a completed Assignment and Acceptance executed by any Lender and an Eligible AssigneeEmployee s devisee, and receipt of an assignment fee of $3,500 from legatee or other designee or, if there be no such Lender devisee or Eligible Assigneeother designee, the Administrative Agent shall, promptly following the effective date thereof, provide to Borrower and the Lenders a revised Schedule 1.1 giving effect thereto. Borrower, the Administrative Agent and the Lenders shall deem and treat the Persons listed as Lenders in the Register as the holders and owners of the Pro Rata Shares of the Revolving Facility listed therein for all purposes hereof, and no assignment or transfer of any Lender’s rights and obligations hereunder shall be effective, in each case unless and until an Assignment and Acceptance effecting the assignment or transfer thereof shall have been accepted by the Administrative Agent and recorded in the Register as provided above. Prior to such recordation, all amounts owed with respect to the applicable Pro Rata Share of the Revolving Facility shall be owed to the Lender listed in the Register as the owner thereof, and any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is listed in the Register as a Lender shall be conclusive and binding on any subsequent holder, assignee or transferee of the corresponding Pro Rata Share of the Revolving FacilityEmployee s estate. 9.
(e) Each Lender may from time to time grant participations to one or more banks or other financial institutions in or to all or a portion of its rights and/or obligations under this Agreement; provided, however, that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) the participating banks or other financial institutions shall not be a Lender hereunder for any purpose except, if the participation agreement so provides, for the purposes of Sections 3.5, 3.6, 11.11 and 11.21 but only to the extent that the cost of such benefits to Borrower does not exceed the cost which Borrower would have incurred in respect of the Lender granting such participation absent the participation, (iv) Borrower, the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement, (v) the participation interest shall be expressed as a percentage of the granting Lender’s Pro Rata Share of the Revolving Facility as it then exists and shall not restrict an increase in the Revolving Facility (or the aggregate Commitments pertaining thereto), or in the granting Lender’s rights and obligations hereunder, so long as the amount of the participation interest is not affected thereby and (vi) the consent of the holder of such participation interest shall not be required for amendments or waivers of provisions of the Loan Documents other than those which (A) extend any Amortization Date, any applicable Maturity Date or any other date upon which any payment of money is due to the Lenders, (B) reduce the rate of interest on the Notes, any fee or any other monetary amount payable to the Lenders, (C) reduce the amount of any installment of principal due under the Notes, or (D) release any Guarantor from its Guaranty.
(f) Borrower agrees that upon the occurrence and during the continuance of any Event of Default, each Lender shall be entitled to assign its rights hereunder and under the Loan Documents, or grant participation interests in its rights under this Agreement and the Loan Documents, to any Person, in whole or in any part thereof, notwithstanding any provisions contained herein (including those set forth in subsection (b) above) or in any other Loan Document to the contrary, except that, other than (i) assignments by a Lender to an Affiliate of such Lender or to another Lender or (ii) pledges described in the last sentence of subsection (a) above, no assignment shall be made without the approval of the Administrative Agent.
Appears in 1 contract
Binding Effect; Assignment. (a) This Agreement and the other Loan Documents to which Borrower is a Party party will be binding upon and inure to the benefit of Borrower, the Administrative Agent, the Collateral Agent, each of the Lenders, and their respective successors and assigns, except that Borrower may not assign its rights hereunder or thereunder or any interest herein or therein without the prior written consent of all the Lenders. Each Lender represents that it is not acquiring its Note Advances and other Obligations hereunder with a view to the distribution thereof within the meaning of the Securities Act of 1933, as amended (subject to any requirement that disposition of such Note must be within the control of such Lender). Any Lender may at any time pledge its Note or any other instrument evidencing its rights as a Lender under this Agreement to a Federal Reserve Bank, but no such pledge shall release that Lender from its obligations hereunder or grant to such Federal Reserve Bank the rights of a Lender hereunder absent foreclosure of such pledge.
(b) From time to time following the Closing Date, each Lender may assign to one or more Eligible Assignees all or any portion of its rights and obligations under this Agreement (including all or a portion of its Commitment, the Advances owing to it respective Commitments and the Note or Notes held by it)Loans; provided that, subject to subsection (f) below, that (i) such Eligible Assignee, if not then a Lender or an Affiliate of the assigning Lender, shall be approved by the Administrative Agent and the Issuing Lender and (if no Event of Default pursuant to Section 9.1(a), (b) or (j) then exists) Borrower (neither of which approvals shall be unreasonably withheld or delayed); provided that the Borrower shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to the Administrative Agent within 10 Banking Days after having received notice thereof, (ii) no such assignment shall be made to (A) Borrower or any of Borrower’s Affiliates or Subsidiaries or (B) to any Defaulting Lender or any of its Subsidiaries, or any Person who, upon becoming a Lender hereunder, would constitute any of the foregoing Persons described in this clause (B), (iii) such assignment shall be evidenced by an Assignment and Acceptance, a copy of which shall be furnished to the Administrative Agent as hereinbelow provided, (iiiiv) except in the case of an assignment to an Affiliate of the assigning Lender, to another Lender or of the entire remaining rights and obligations Commitments and/or Loans of the assigning Lender under this AgreementLender, the assignment shall not assign a any portion of such assigning Lender’s Commitments any Commitment and/or Advances owing to such assigning Lender Loans that is equivalent to less than $3,000,000, 5,000,000 and (ivv) the effective date of any such assignment shall be as specified in the Assignment and Acceptance, but not earlier than the date which is five (5) Banking Days after the date the Administrative Agent has received the Assignment and Acceptance. Upon the effective date of such Assignment and Acceptance, the Eligible Assignee named therein shall be a Lender for all purposes of this Agreement, with the Pro Rata Share of the Commitments and/or Advances Loans therein set forth and, to the extent of such Commitments and/or AdvancesPro Rata Share, the assigning Lender shall be released from its further obligations under this Agreement; provided, that except to the extent otherwise expressly agreed by the affected parties, no assignment by a Defaulting Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender’s having been a Defaulting Lender. Borrower agrees that that, to the extent requested by any such Lender, it shall execute and deliver (against delivery by the assigning Lender to Borrower of such Lender’s its Notes) to such assignee Lender, Notes evidencing that assignee Lender’s respective Commitments and/or AdvancesLoans, and to the assigning Lender, Notes evidencing the remaining balance of the its respective Commitments and/or Advances retained Loans. In connection with any assignment of rights and obligations of any Defaulting Lender hereunder, no such assignment shall be effective unless and until, in addition to the other conditions thereto set forth herein, the parties to the assignment shall make such additional payments to the Administrative Agent in an aggregate amount sufficient, upon distribution thereof as appropriate (which may be outright payment, purchases by the assigning assignee of participations or subparticipations, or other compensating actions, including funding, with the consent of Borrower and the Administrative Agent, the applicable pro rata share of Loans previously requested but not funded by the Defaulting Lender, to each of which the applicable assignee and assignor hereby irrevocably consent), to (x) pay and satisfy in full all payment liabilities then owed by such Defaulting Lender to the Administrative Agent, the Issuing Lender, the Swing Line Lender and each other Lender hereunder (and interest accrued thereon), and (y) acquire (and fund as appropriate) its full pro rata share of all Loans and participations in Letters of Credit and Swing Line Loans in accordance with its Pro Rata Share. Notwithstanding the foregoing, in the event that any assignment of rights and obligations of any Defaulting Lender hereunder shall become effective under applicable law without compliance with the provisions of this paragraph, then the assignee of such interest shall be deemed to be a Defaulting Lender for all purposes of this Agreement until such compliance occurs.
(c) By executing and delivering an Assignment and Acceptance, the Eligible Assignee thereunder acknowledges and agrees that: (i) other than the representation and warranty that it is the legal and beneficial owner of the rights and obligations hereunder Commitments and/or Loans being assigned thereby free and clear of any adverse claim, the assigning Lender has made 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 or sufficiency of this Agreement or any other Loan Document; (ii) the assigning Lender has made no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance by Borrower of the Obligations; (iii) it has received a copy of this Agreement, together with copies of the most recent financial statements delivered pursuant to Section 7.1 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) it will, independently and without reliance upon the Administrative Agent, the Collateral Agent or any Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) it appoints and authorizes the Administrative Agent and the Collateral Agent to take such action and to exercise such powers under this Agreement as are delegated to the Administrative Agent and the Collateral Agent by this Agreement; and (vi) 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.
(d) The Administrative Agent shall maintain at the Administrative Agent’s Office a copy of each Assignment and Acceptance delivered to it and a register (the “Register”) of the names and address of each of the Lenders and the Pro Rata Share of the Commitments and/or Loans held by each Lender, giving effect to each Assignment and Acceptance. The Register shall be available during normal business hours for inspection by Borrower or any Lender upon reasonable prior notice to the Administrative Agent. After receipt of a completed Assignment and Acceptance executed by any Lender and an Eligible Assignee, and receipt of an assignment fee of $3,500 from such Lender or Eligible Assignee, the Administrative Agent shall, promptly following the effective date thereof, provide to Borrower and the Lenders a revised Schedule 1.1 giving effect thereto. Borrower, the Administrative Agent, the Collateral Agent and the Lenders shall deem and treat the Persons listed as Lenders in the Register as the holders and owners of the Pro Rata Shares of the Revolving Facility Commitments and/or Loans listed therein for all purposes hereof, and no assignment or transfer of any Lender’s rights and obligations hereunder such Commitments and/or Loans shall be effective, in each case unless and until an Assignment and Acceptance effecting the assignment or transfer thereof shall have been accepted by the Administrative Agent and recorded in the Register as provided above. Prior to such recordation, all amounts owed with respect to the applicable Pro Rata Share of the Revolving Facility Commitments and/or Loans shall be owed to the Lender listed in the Register as the owner thereof, and any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is listed in the Register as a Lender shall be conclusive and binding on any subsequent holder, assignee or transferee of the corresponding Pro Rata Share of the Revolving FacilityCommitments and/or Loans.
(e) Each Lender may from time to time grant participations to one or more banks or other financial institutions (other than a Defaulting Lender or Borrower or any of Borrower’s Affiliates or Subsidiaries) in or to all or a portion of its rights the Commitments and/or obligations under this AgreementLoans; provided, however, that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) the participating banks or other financial institutions shall not be a Lender hereunder for any purpose except, if the participation agreement so provides, for the purposes of Sections 3.53.6, 3.63.7, 11.11 and 11.21 11.22 but only to the extent that the cost of such benefits to Borrower does not exceed the cost which Borrower would have incurred in respect of the such Lender granting such participation absent the participation, (iv) Borrower, the Administrative Agent Agent, the Collateral Agent, and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement, (v) the participation interest shall be expressed as a percentage of the granting Lender’s Pro Rata Share of the Revolving Facility Commitments and/or Loans as it then exists and shall not restrict an increase in the Revolving Facility (or the aggregate Commitments pertaining thereto)and/or Loans, or in the granting Lender’s rights and obligations hereunderCommitments and/or Loans, so long as the amount of the participation interest is not affected thereby thereby, (vi) the holder of the participation interest shall abide by the confidentiality provisions set forth herein and (vivii) the consent of the holder of such participation interest shall not be required for amendments or waivers of provisions of the Loan Documents other than those which (Aa) extend any Amortization Date, any the applicable Maturity Date or any other date upon which any payment of money is due to the Lenders, (Bb) reduce the rate of interest on the NotesLoan, any fee or any other monetary amount payable to the Lenders, (Cc) reduce the amount of any installment of principal due under with respect to the NotesLoan, (d) release any Subsidiary Guaranty, or (De) release any Guarantor all or substantially all of the Collateral from the Lien of the Collateral Documents, except if such release of Collateral occurs in connection with a Disposition permitted under Section 6.2 or grant of a purchase-money Lien of the type specified in clause (s) of the definition of “Permitted Encumbrances” (unless the holder of such Lien does not prohibit a subordinate Lien on the acquired property or assets, in which case the Collateral Agent shall subordinate its Guaranty.
(f) Borrower agrees that upon Lien on such acquired property or assets in a manner acceptable to the occurrence and during holder of the continuance purchase-money Lien without the need for the consent of any Event Lender), in which case such release shall not require the consent of Defaultany of the Lenders or of any holder of a participation interest in the Commitments and/or Loans. In the event that a participation has been granted pursuant to this Section 11.8(e) to a financial institution that is not a U.S. Person, each then, upon request made by Borrower or the Administrative Agent to the Lender which granted such participation, such Lender shall cause such participant financial institution to deliver the same documents and information to Borrower and the Administrative Agent as would be entitled to assign its rights hereunder required under Section 3.11(g) if such financial institution were a Lender. Each Lender that grants a participation shall, acting solely for this purpose as a non-fiduciary agent of Borrower, maintain a register on which it enters the name and address of each participant and the principal amounts (and stated interest) of each participant’s interest in the Loan or other obligations under the Loan DocumentsDocuments (the “Participant Register”). The entries in the Participant Register shall be conclusive absent manifest error, or grant and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation interests in its rights under for all purposes of this Agreement and the Loan Documents, to any Person, in whole or in any part thereof, notwithstanding any provisions contained herein (including those set forth in subsection (b) above) or in any other Loan Document notice to the contrary, except that, other than (i) assignments by a Lender to an Affiliate of such Lender or to another Lender or (ii) pledges described in the last sentence of subsection (a) above, no assignment shall be made without the approval of the Administrative Agent.
Appears in 1 contract
Binding Effect; Assignment. (a) This Subject to the terms of this Agreement, including, without limitation Section 19 below, the burdens of this Agreement are binding upon, and the other Loan Documents to which Borrower is a Party will be binding upon and benefits of this Agreement inure to the benefit of Borrower, the Administrative Agentto, each of Party and each successive successor in interest thereto and constitute covenants that run with the LendersProperty. Whenever the terms "City" and "Developer" are used herein, and their respective successors and assignssuch terms shall include every successive successor in interest thereto, except that Borrower may the term "Developer" shall not assign its rights hereunder include the purchaser or thereunder transferee of any lot within the Project that has been fully developed in accordance with the Prior Approvals and this Agreement. Notwithstanding the above, Developer shall not transfer the Development Agreement Property or any interest herein or therein portion thereof without the prior written consent City approval of all the Lenderssuch transfer, which approval shall not be unreasonably withheld. Each Lender represents that it is not acquiring its Note with a view Any transfer without City approval (to the distribution thereof within extent the meaning same is required hereunder) shall automatically terminate this Agreement. Notwithstanding the above, no City approval shall be required for (1) any transfer of the Securities Act of 1933, as amended (subject to any requirement that disposition of such Note must be within the control of such Lender). Any Lender may at any time pledge its Note or any other instrument evidencing its rights as a Lender under this Agreement to a Federal Reserve Bank, but no such pledge shall release that Lender from its obligations hereunder or grant to such Federal Reserve Bank the rights of a Lender hereunder absent foreclosure of such pledge.
(b) From time to time following the Closing Date, each Lender may assign to one or more Eligible Assignees all or any portion of its rights and obligations under this the Development Agreement (including all or a portion of its Commitment, the Advances owing Property to it and the Note or Notes held by it); provided that, subject to subsection (f) below, (i) such Eligible Assigneeentities affiliated with, if not then a Lender or an Affiliate controlled by or under common control of, either Developer or any of the assigning Lenderits partners, shall be approved by the Administrative Agent and Borrower (neither of which approvals shall be unreasonably withheld members or delayed), principals or (ii) such assignment shall be evidenced by an Assignment entities that have total assets (in name or under management) in excess of $75,000,000 and Acceptanceare engaged in the business of residential real estate development, (2) any transfer of a copy lot within the Project that has been Completed, or (3) any transfers of a condominium unit within a condominium portion of the Project which shall be furnished has been Completed. Notwithstanding the foregoing or anything to the Administrative Agent as hereinbelow providedcontrary herein, (iii) except in Developer shall have the case absolute and unconditional right, at any time and from time to time, without the consent of an assignment to an Affiliate of the assigning LenderCity, to another Lender or of the entire remaining rights and obligations of the assigning Lender under this Agreement, the assignment shall not assign a portion of such assigning Lender’s Commitments and/or Advances owing to such assigning Lender that is equivalent to less than $3,000,000, and (iv) the effective date of any such assignment shall be as specified in the Assignment and Acceptance, but not earlier than the date which is five (5) Banking Days after the date the Administrative Agent has received the Assignment and Acceptance. Upon the effective date of such Assignment and Acceptance, the Eligible Assignee named therein shall be a Lender for all purposes of this Agreement, with the Commitments and/or Advances therein set forth and, to the extent of such Commitments and/or Advances, the assigning Lender shall be released from its further obligations under this Agreement. Borrower agrees that it shall execute and deliver any deed of trust or mortgage of record in favor of a Financier (against delivery as defined below), and the exercise of any remedies under such deed of trust or mortgage of record by a Financier (including, without limitation, foreclosure or deed or other transfer in lieu of foreclosure) shall not be subject to City’s consent. City shall, within thirty (30) days after the assigning Lender written request of Developer or any proposed transferee, acknowledge in writing that a proposed transfer of this Agreement by Developer is approved or disapproved by City (and if disapproved, City shall provide a reasonable explanation as to Borrower the basis for such disapproval). If City fails to provide its approval or disapproval within such thirty (30) day period, then Developer may submit a second request to City of such Lender’s Notes) to such assignee Lender, Notes evidencing that assignee Lender’s Commitments and/or Advances, and to the assigning Lender, Notes evidencing the remaining balance of the Commitments and/or Advances retained by the assigning Lender.
(c) By executing and delivering an Assignment and Acceptance, the Eligible Assignee thereunder acknowledges and agrees that: (i) other than the representation and warranty transferee clearly stating that it is the legal second and beneficial owner of the rights final request, and obligations hereunder being assigned thereby free and clear of any adverse claimif City fails to respond to said second request within a ten (10) day timeframe, the assigning Lender has made no representation or warranty and assumes no responsibility with respect such request shall be deemed approved by City. With regard to any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness or sufficiency of this Agreement or any other Loan Document; (ii) the assigning Lender has made no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance by Borrower of the Obligations; (iii) it has received a copy of this Agreement, together with copies of the most recent financial statements delivered pursuant to Section 7.1 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) it will, independently and without reliance upon the Administrative Agent or any Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) it appoints and authorizes the Administrative Agent to take such action and to exercise such powers under this Agreement as are delegated to the Administrative Agent by this Agreement; and (vi) 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.
(d) The Administrative Agent shall maintain at the Administrative Agent’s Office a copy of each Assignment and Acceptance delivered to it and a register (the “Register”) of the names and address of each of the Lenders and the Pro Rata Share of the Commitments held by each Lender, giving effect to each Assignment and Acceptance. The Register shall be available during normal business hours for inspection by Borrower or any Lender upon reasonable prior notice to the Administrative Agent. After receipt of a completed Assignment and Acceptance executed by any Lender and an Eligible Assignee, and receipt of an assignment fee of $3,500 from such Lender or Eligible Assignee, the Administrative Agent shall, promptly following the effective date thereof, provide to Borrower and the Lenders a revised Schedule 1.1 giving effect thereto. Borrower, the Administrative Agent and the Lenders shall deem and treat the Persons listed as Lenders in the Register as the holders and owners of the Pro Rata Shares of the Revolving Facility listed therein for all purposes hereof, and no assignment or transfer of any Lender’s rights and obligations hereunder shall be effective, in each case unless and until an Assignment and Acceptance effecting the assignment or transfer thereof shall have been accepted by the Administrative Agent and recorded in the Register as provided above. Prior to such recordation, all amounts owed with respect to the applicable Pro Rata Share of the Revolving Facility shall be owed to the Lender listed in the Register as the owner thereof, and any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is listed in the Register as a Lender shall be conclusive and binding on any subsequent holder, assignee or transferee of the corresponding Pro Rata Share of the Revolving Facility.
(e) Each Lender may from time to time grant participations to one or more banks or other financial institutions in or to all or a portion of its rights and/or obligations under this Agreement; provided, however, that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) the participating banks or other financial institutions shall not be a Lender hereunder for any purpose except, if the participation agreement so provides, for the purposes of Sections 3.5, 3.6, 11.11 and 11.21 but only to the extent that the cost of such benefits to Borrower does not exceed the cost which Borrower would have incurred in respect of the Lender granting such participation absent the participation, (iv) Borrower, the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement, (v) the participation interest shall be expressed as a percentage of the granting Lender’s Pro Rata Share of the Revolving Facility as it then exists and shall not restrict an increase in the Revolving Facility (or the aggregate Commitments pertaining thereto), or in the granting Lender’s rights and obligations authorized hereunder, so long as the amount of the participation interest is not affected thereby and (vi) the consent of the holder of such participation interest shall not be required for amendments or waivers of provisions of the Loan Documents other than those which (A) extend any Amortization Date, any applicable Maturity Date or any other date upon which any payment of money is due to the Lenders, (B) reduce the rate of interest on the Notes, any fee or any other monetary amount payable to the Lenders, (C) reduce the amount of any installment of principal due under the Notes, or (D) release any Guarantor from its Guaranty.
(f) Borrower agrees that upon the occurrence and during the continuance of any Event of Default, each Lender shall be entitled to assign its rights hereunder and under the Loan Documents, or grant participation interests in its rights under this Agreement and the Loan Documents, to any Person, in whole or in any part thereof, notwithstanding any provisions contained herein (including those set forth in subsection (b) above) or in any other Loan Document to the contrary, except that, other than (i) assignments by a Lender to an Affiliate of such Lender or to another Lender or (ii) pledges described in the last sentence of subsection (a) above, no assignment shall be made without the approval of the Administrative Agent.:
Appears in 1 contract
Samples: Development Agreement
Binding Effect; Assignment. (a) This Agreement and the other Loan Documents to which Borrower is a Party will shall be binding upon upon, and inure to the benefit of of, the Borrower, the Administrative Agent, each of Agent and the Lenders, Lenders and their respective successors and assigns; provided, except however, that the Borrower may not assign its rights or obligations hereunder or thereunder in connection herewith or any interest herein (voluntarily, by operation of law or therein otherwise) without the prior written consent of all the Lenders. Each Lender represents that it is not acquiring its Note with a view to the distribution thereof within the meaning of the Securities Act of 1933, as amended (subject to any requirement that disposition of such Note must be within the control of such Lender). Any Lender may at any time pledge its Note or any other instrument evidencing its rights as a Lender under this Agreement to a Federal Reserve Bank, but no such pledge shall release that Lender from its obligations hereunder or grant to such Federal Reserve Bank the rights of a Lender hereunder absent foreclosure of such pledge.
(b) From time to time following the Closing Date, each Any Lender may assign make, carry or transfer Loans at, to one or more Eligible Assignees all or for the account of, any portion of its rights and obligations under this Agreement (including all branch offices or a portion the office of its Commitment, the Advances owing to it and the Note or Notes held by it); provided that, subject to subsection (f) below, (i) such Eligible Assignee, if not then a Lender or an Affiliate of the assigning Lender, shall be approved by the Administrative Agent and Borrower (neither of which approvals shall be unreasonably withheld or delayed), (ii) such assignment shall be evidenced by an Assignment and Acceptance, a copy of which shall be furnished to the Administrative Agent as hereinbelow provided, (iii) except in the case of an assignment to an Affiliate of the assigning Lender, to another Lender or of the entire remaining rights and obligations of the assigning Lender under this Agreement, the assignment shall not assign a portion of such assigning Lender’s Commitments and/or Advances owing to such assigning Lender that is equivalent to less than $3,000,000, and (iv) the effective date of any such assignment shall be as specified in the Assignment and Acceptance, but not earlier than the date which is five (5) Banking Days after the date the Administrative Agent has received the Assignment and Acceptance. Upon the effective date of such Assignment and Acceptance, the Eligible Assignee named therein shall be a Lender for all purposes of this Agreement, with the Commitments and/or Advances therein set forth and, to the extent of such Commitments and/or Advances, the assigning Lender shall be released from its further obligations under this Agreement. Borrower agrees that it shall execute and deliver (against delivery by the assigning Lender to Borrower of such Lender’s Notes) to such assignee Lender, Notes evidencing that assignee Lender’s Commitments and/or Advances, and to the assigning Lender, Notes evidencing the remaining balance of the Commitments and/or Advances retained by the assigning Lender.
(c) By executing and delivering an Assignment and Acceptance, the Eligible Assignee thereunder acknowledges and agrees that: (i) other than the representation and warranty that it is the legal and beneficial owner of the rights and obligations hereunder being assigned thereby free and clear of any adverse claim, the assigning Lender has made 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 or sufficiency of this Agreement or any other Loan Document; (ii) the assigning Lender has made no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance by Borrower of the Obligations; (iii) it has received a copy of this Agreement, together with copies of the most recent financial statements delivered pursuant to Section 7.1 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) it will, independently and without reliance upon the Administrative Agent or any Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) it appoints and authorizes the Administrative Agent to take such action and to exercise such powers under this Agreement as are delegated to the Administrative Agent by this Agreement; and (vi) 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.
(d) The Administrative Agent shall maintain at the Administrative Agent’s Office a copy of each Assignment and Acceptance delivered to it and a register (the “Register”) of the names and address of each of the Lenders and the Pro Rata Share of the Commitments held by each Lender, giving effect to each Assignment and Acceptance. The Register shall be available during normal business hours for inspection by Borrower or any Lender upon reasonable prior notice to the Administrative Agent. After receipt of a completed Assignment and Acceptance executed by any Lender and an Eligible Assignee, and receipt of an assignment fee of $3,500 from such Lender or Eligible Assignee, the Administrative Agent shall, promptly following the effective date thereof, provide to Borrower and the Lenders a revised Schedule 1.1 giving effect thereto. Borrower, the Administrative Agent and the Lenders shall deem and treat the Persons listed as Lenders in the Register as the holders and owners of the Pro Rata Shares of the Revolving Facility listed therein for all purposes hereof, and no assignment or transfer of any Lender’s rights and obligations hereunder shall be effective, in each case unless and until an Assignment and Acceptance effecting the assignment or transfer thereof shall have been accepted by the Administrative Agent and recorded in the Register as provided above. Prior to such recordation, all amounts owed with respect to the applicable Pro Rata Share of the Revolving Facility shall be owed to the Lender listed in the Register as the owner thereof, and any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is listed in the Register as a Lender shall be conclusive and binding on any subsequent holder, assignee or transferee of the corresponding Pro Rata Share of the Revolving Facility.
(e) Each Lender may from at any time to time grant participations sell to one or more banks or other financial institutions entities ("Participants") participating interests in or to all or a any portion of its rights and/or Commitment and related outstanding obligations under this Agreement; providedof such Lender hereunder (in respect of any Lender, howeverits "Credit Exposure"). In the event of any such sale by a Lender of participating interests to a Participant, that (i) such Lender’s 's obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligationsthereof, (iii) the participating banks or other financial institutions shall not be a Lender hereunder for any purpose except, if the participation agreement so provides, for the purposes of Sections 3.5, 3.6, 11.11 and 11.21 but only to the extent that the cost of such benefits to Borrower does not exceed the cost which Borrower would have incurred in respect of the Lender granting such participation absent the participation, (iv) Borrower, the Administrative Agent and the other Lenders Borrower and the Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s 's rights and obligations under this Agreement, (v) the participation interest shall be expressed as a percentage of the granting Lender’s Pro Rata Share of the Revolving Facility as it then exists and shall not restrict an increase in the Revolving Facility (. The Borrower agrees that if amounts outstanding under this Agreement or the aggregate Commitments pertaining thereto), or in the granting Lender’s rights and obligations hereunder, so long as the amount of the participation interest is not affected thereby and (vi) the consent of the holder of such participation interest shall not be required for amendments or waivers of provisions any of the Loan Documents other than those which (A) extend any Amortization Date, any applicable Maturity Date are due or any other date upon which any payment of money is due to the Lenders, (B) reduce the rate of interest on the Notes, any fee or any other monetary amount payable to the Lenders, (C) reduce the amount of any installment of principal due under the Notesunpaid, or (D) release any Guarantor from its Guaranty.
(f) Borrower agrees that shall have been declared or shall have become due and payable upon the occurrence and during the continuance of any an Event of Default, each Lender Participant shall be entitled deemed to assign have the right of set-off in respect of its rights hereunder and under the Loan Documents, or grant participation interests participating interest in its rights amounts owing under this Agreement and the Loan Documents, Documents to any Person, in whole the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement or in any part thereof, notwithstanding any provisions contained herein (including those set forth in subsection (b) above) or in any other Loan Document Document, provided that such right of set-off shall be subject to the contrary, except that, other than (i) assignments by a Lender to an Affiliate obligation of such Lender or Participant to another Lender or (ii) pledges described share with the Lenders, and the Lenders agree to share with such Participant, as provided in the last sentence of subsection (a) above, no assignment shall be made without the approval of the Administrative AgentSection 9.
Appears in 1 contract
Binding Effect; Assignment. (a) This Agreement and the other Loan Documents to which Borrower is a Party will be binding upon and inure to the benefit of Borrower, the Administrative Agent, each of the Lenders, and their respective successors and assigns, except that ------ Borrower may not assign its rights hereunder or thereunder or any interest herein or therein without the prior written consent of all the Lenders. Each Lender represents that it is not acquiring its Note Notes with a view to the distribution thereof within the meaning of the Securities Act of 1933, as amended (subject to any requirement that disposition of such Note Notes must be within the control of such Lender). Any Lender may at any time pledge its Note Notes or any other instrument evidencing its rights as a Lender under this Agreement to a Federal Reserve Bank, but no such pledge shall release that Lender from its obligations hereunder or grant to such Federal Reserve Bank the rights of a Lender hereunder absent foreclosure of such pledge.
(b) From time to time following the Closing Date, each Lender may assign to one or more Eligible Assignees all or any portion of its rights and obligations under this Agreement (including all or a portion Pro Rata Share of its the Main Commitment, the Advances owing to it and the Note or Notes held by it); provided that, subject to subsection (f) below, that (i) such Eligible Assignee, if not then a Lender or an Affiliate of the assigning -------- Lender, shall be approved by reasonably acceptable to the Administrative Agent and Borrower (neither of which approvals shall be unreasonably withheld or delayed)Agent, (ii) such assignment shall be evidenced by an a Commitment Assignment and Acceptance, a copy of which shall be furnished to the Administrative Agent for registration as hereinbelow provided, (iii) except in the case of an assignment to an Affiliate of the assigning Lender, to another Lender or of the entire remaining rights and obligations of the assigning Lender under this Agreement, the assignment shall not assign a portion Pro Rata Share of such assigning Lender’s Commitments and/or Advances owing to such assigning Lender that is the Main Commitment equivalent to less than $3,000,000, 5,000,000 unless the assigning Lender thereby assigns its entire Pro Rata Share and (iv) the effective date of any such assignment shall be as specified in the Commitment Assignment and Acceptance, but without the consent of the Administrative Agent not earlier than the date which is five ten (510) Banking Days after the date the Administrative Agent has received registered the Commitment Assignment and AcceptanceAcceptance in the register kept for that purpose by the Administrative Agent described below. Upon the effective date of such Commitment Assignment and Acceptance, the Eligible Assignee named therein shall be a Lender for all purposes of this Agreement, with the Commitments and/or Advances Pro Rata Share of the Main Commitment therein set forth and, to the extent of such Commitments and/or AdvancesPro Rata Share, the assigning Lender shall be released from its further obligations under this Agreement. Borrower agrees that it shall execute and deliver (against delivery by the assigning Lender to Borrower of such Lender’s its Notes) to such assignee Lender, Notes Note evidencing that assignee Lender’s Commitments and/or Advances's Pro Rata Share of the Main Commitment and any Competitive Advances to be made by that Lender, and to the assigning Lender, Notes a Note evidencing the remaining balance of the Commitments and/or Advances Pro Rata Share retained by the assigning Lender.
(c) By executing and delivering an Assignment and Acceptance, the Eligible Assignee thereunder acknowledges and agrees that: (i) other than the representation and warranty that it is the legal and beneficial owner of the rights and obligations hereunder being assigned thereby free and clear of any adverse claim, the assigning Lender has made 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 or sufficiency of this Agreement or any other Loan Document; (ii) the assigning Lender has made no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance by Borrower of the Obligations; (iii) it has received a copy of this Agreement, together with copies of the most recent financial statements delivered pursuant to Section 7.1 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) it will, independently and without reliance upon the Administrative Agent or any Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) it appoints and authorizes the Administrative Agent to take such action and to exercise such powers under this Agreement as are delegated to the Administrative Agent by this Agreement; and (vi) 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.
(d) The Administrative Agent shall maintain at the Administrative Agent’s Office a copy of each Assignment and Acceptance delivered to it and a register (the “Register”) of the names and address of each of the Lenders and the Pro Rata Share of the Commitments held by each Lender, giving effect to each Assignment and Acceptance. The Register shall be available during normal business hours for inspection by Borrower or any Lender upon reasonable prior notice to the Administrative Agent. After receipt of a completed Assignment and Acceptance executed by any Lender and an Eligible Assignee, and receipt of an assignment fee of $3,500 from such Lender or Eligible Assignee, the Administrative Agent shall, promptly following the effective date thereof, provide to Borrower and the Lenders a revised Schedule 1.1 giving effect thereto. Borrower, the Administrative Agent and the Lenders shall deem and treat the Persons listed as Lenders in the Register as the holders and owners of the Pro Rata Shares of the Revolving Facility listed therein for all purposes hereof, and no assignment or transfer of any Lender’s rights and obligations hereunder shall be effective, in each case unless and until an Assignment and Acceptance effecting the assignment or transfer thereof shall have been accepted by the Administrative Agent and recorded in the Register as provided above. Prior to such recordation, all amounts owed with respect to the applicable Pro Rata Share of the Revolving Facility shall be owed to the Lender listed in the Register as the owner thereof, and any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is listed in the Register as a Lender shall be conclusive and binding on any subsequent holder, assignee or transferee of the corresponding Pro Rata Share of the Revolving Facility.
(e) Each Lender may from time to time grant participations to one or more banks or other financial institutions in or to all or a portion of its rights and/or obligations under this Agreement; provided, however, that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) the participating banks or other financial institutions shall not be a Lender hereunder for any purpose except, if the participation agreement so provides, for the purposes of Sections 3.5, 3.6, 11.11 and 11.21 but only to the extent that the cost of such benefits to Borrower does not exceed the cost which Borrower would have incurred in respect of the Lender granting such participation absent the participation, (iv) Borrower, the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement, (v) the participation interest shall be expressed as a percentage of the granting Lender’s Pro Rata Share of the Revolving Facility as it then exists and shall not restrict an increase in the Revolving Facility (or the aggregate Commitments pertaining thereto), or in the granting Lender’s rights and obligations hereunder, so long as the amount of the participation interest is not affected thereby and (vi) the consent of the holder of such participation interest shall not be required for amendments or waivers of provisions of the Loan Documents other than those which (A) extend any Amortization Date, any applicable Maturity Date or any other date upon which any payment of money is due to the Lenders, (B) reduce the rate of interest on the Notes, any fee or any other monetary amount payable to the Lenders, (C) reduce the amount of any installment of principal due under the Notes, or (D) release any Guarantor from its Guaranty.
(f) Borrower agrees that upon the occurrence and during the continuance of any Event of Default, each Lender shall be entitled to assign its rights hereunder and under the Loan Documents, or grant participation interests in its rights under this Agreement and the Loan Documents, to any Person, in whole or in any part thereof, notwithstanding any provisions contained herein (including those set forth in subsection (b) above) or in any other Loan Document to the contrary, except that, other than (i) assignments by a Lender to an Affiliate of such Lender or to another Lender or (ii) pledges described in the last sentence of subsection (a) above, no assignment shall be made without the approval of the Administrative Agent.
Appears in 1 contract
Samples: Loan Agreement (Nevada Power Co)
Binding Effect; Assignment. (a) This Agreement and the other Loan Documents to which Borrower is a Party will shall be binding upon and inure to the benefit of the Borrower, the Administrative Paying Agent, the Custodian and the Agent and each of the LendersLender, and their respective successors and assigns, except that the Borrower may shall not have the right to assign its rights hereunder or thereunder or any interest herein or therein without the prior written consent of all the Agent and the Lenders, and any assignment by the Borrower in violation of this Section 10.8 shall be null and void. Each Lender represents that it is not acquiring its Note with a view Notwithstanding anything to the distribution thereof within contrary in the meaning first sentence of the Securities Act of 1933this Section 10.8, as amended (subject to any requirement that disposition of such Note must be within the control of such Lender). Any Lender may at any time pledge its Note time, without the consent of the Borrower or the Agent, assign all or any other instrument evidencing portion of its rights as a Lender under this Agreement and any Loan Note to a Federal Reserve Bank; provided, but that no such assignment or pledge shall release that the transferor Lender from its obligations hereunder or grant to such Federal Reserve Bank the rights of a Lender hereunder absent foreclosure of such pledge.
(b) From time to time following the Closing Date, each hereunder. Each Lender may assign to one or more Eligible Assignees banks or other entities all or any part or portion of its rights and obligations hereunder (including, without limitation, its Commitment, its Loan Notes or its Advances); provided, that each such assignment (A) shall be in form and substance acceptable to the Agent, (B) shall, without limiting the rights of the Borrower under subclause (C) below and unless either (x) such assignee is a Permitted Assignee or (y) an Event of Default or Amortization Event shall have occurred and is continuing, be approved by the prior written consent of the Borrower (such consent not to unreasonably withheld or delayed), (C) shall not be made to a Person that is a Disqualified Lender as of the date on which the assigning Lender entered into a binding agreement to sell and assign all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitment, the Advances owing “Trade Date”) to it and the Note or Notes held by it); provided that, subject to subsection such Person (f) below, unless either (i) an Event of Default or Amortization Event has occurred or (ii) the Borrower has consented to such Eligible Assigneeassignment in writing in its sole and absolute discretion, which, in either such case, such Person shall not be considered a Disqualified Lender for the purpose of this Agreement), and (D) shall either be made to a Permitted Assignee or to a Person which is acceptable to the Agent in its sole discretion. [***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause competitive harm to the company if publicly disclosed.
(b) If any assignment is made to a Disqualified Lender in violation of this Section 10.8, the Borrower may, at its sole expense and effort, upon notice to the applicable Disqualified Lender and the Agent, (A) purchase or prepay the Advances held by such Disqualified Lender by paying the lesser of (x) the principal amount thereof and (y) the amount that such Disqualified Xxxxxx paid to acquire such Advances, in each case plus accrued interest, accrued fees and all other amounts (other than principal amounts) payable to it hereunder and/or (B) require such Disqualified Lender to assign, without recourse (in accordance with and subject to the restrictions contained in this Section 10.8), all of its interest, rights and obligations under this Agreement to one or more banks or other entities at the lesser of (x) the principal amount thereof and (y) the amount that such Disqualified Lender paid to acquire such interests, rights and obligations, in each case plus accrued interest, accrued fees and all other amounts (other than principal amounts) payable to it hereunder.
(A) will not, absent an Event of Default or Amortization Event or consent from the Borrower (x) have the right to receive financial reports that are not then a Lender publicly available, Monthly Servicer Reports or an Affiliate of the assigning Lender, shall be approved other reports or confidential information provided to Lenders by the Administrative Borrower or the Agent and Borrower (neither of which approvals shall be unreasonably withheld or delayedother than Tax reporting information with respect to the Advances), (iiy) attend or participate in meetings with the Borrower attended by the Lenders and the Agent, or (z) access any electronic site maintained by the Borrower or Agent to provide Lenders with confidential information or confidential communications from counsel to or financial advisors of the Agent and (B) (x) for purposes of any consent to any amendment, waiver or modification of, or any action under, and for the purpose of any direction to the Agent or any Lender to undertake any action (or refrain from taking any action) under this Agreement or any other Transaction Document, each Disqualified Lender will be deemed to have consented in the same proportion as the Lenders that are not Disqualified Lenders consented to such matter, and (y) for purposes of voting on any plan of reorganization or plan of liquidation, each Disqualified Lender party hereto hereby agrees (1) not to vote on such plan, (2) if such Disqualified Xxxxxx does vote on such plan notwithstanding the restriction in the foregoing clause (1), such vote will be deemed not to be in good faith and shall be “designated” pursuant to Section 1126(e) of the Bankruptcy Code (or any similar provision in any other debtor relief laws), and such vote shall not be counted in determining whether the applicable class has accepted or rejected such plan in accordance with Section 1126(c) of the Bankruptcy Code (or any similar provision in any other debtor relief laws) and (3) not to contest any request by any party for a determination by the Bankruptcy Court (or other applicable court of competent jurisdiction) effectuating the foregoing clause (2). Upon, and to the extent of, any assignment (unless otherwise stated therein) made by any Lender hereunder, the assignee or purchaser of such assignment shall be evidenced by an Assignment and Acceptance, a copy of which shall be furnished to the Administrative Agent as hereinbelow provided, (iii) except in the case of an assignment to an Affiliate of the assigning Lender, to another Lender or of the entire remaining rights and obligations of the assigning Lender under this Agreement, the assignment shall not assign a portion of such assigning Lender’s Commitments and/or Advances owing to such assigning Lender that is equivalent to less than $3,000,000, and (iv) the effective date of any such assignment shall be as specified in the Assignment and Acceptance, but not earlier than the date which is five (5) Banking Days after the date the Administrative Agent has received the Assignment and Acceptance. Upon the effective date of such Assignment and Acceptance, the Eligible Assignee named therein shall be a Lender hereunder for all purposes of this AgreementAgreement and shall have all the rights, with the Commitments and/or Advances therein set forth and, to the extent of such Commitments and/or Advances, the assigning Lender shall be released from its further obligations under this Agreement. Borrower agrees that it shall execute and deliver (against delivery by the assigning Lender to Borrower of such Lender’s Notes) to such assignee Lender, Notes evidencing that assignee Lender’s Commitments and/or Advances, and to the assigning Lender, Notes evidencing the remaining balance of the Commitments and/or Advances retained by the assigning Lender.
(c) By executing and delivering an Assignment and Acceptance, the Eligible Assignee thereunder acknowledges and agrees that: (i) other than the representation and warranty that it is the legal and beneficial owner of the rights benefits and obligations hereunder being assigned thereby free and clear of any adverse claim, (including the assigning Lender has made no representation or warranty and assumes no responsibility with respect obligation to any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness or sufficiency of this Agreement or any other Loan Document; (ii) the assigning Lender has made no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance by Borrower of the Obligations; (iii) it has received a copy of this Agreement, together with copies of the most recent financial statements delivered provide documentation pursuant to Section 7.1 and such other documents and information 2.15(G)) of a Lender hereunder. Each Funding Agent, acting solely for this purpose as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) it will, independently and without reliance upon the Administrative Agent or any Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) it appoints and authorizes the Administrative Agent to take such action and to exercise such powers under this Agreement as are delegated to the Administrative Agent by this Agreement; and (vi) it will perform in accordance with their terms all an agent of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(d) The Administrative Agent Borrower, shall maintain at one of [***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause competitive harm to the Administrative Agent’s Office a copy of each Assignment and Acceptance delivered to it and company if publicly disclosed. its offices a register (the “Register”) for the recordation of the names and address of each addresses of the Lenders in its Lender Group, the Commitments of and outstanding principal amounts (and accrued interest) of the Advances owing to each Lender in its Lender Group pursuant to the terms hereof from time to time and any assignment of such Commitments of its Committed Lenders and/or outstanding Advances. The entries in the Register shall be conclusive absent manifest error, and the Pro Rata Share Borrower, the Agent and the Lenders shall treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of the Commitments held by each Lender, giving effect to each Assignment and Acceptancethis Agreement. The Register shall be available during normal business hours for inspection by Borrower or any Lender upon reasonable prior notice to the Administrative Agent. After receipt of a completed Assignment and Acceptance executed by any Lender and an Eligible Assignee, and receipt of an assignment fee of $3,500 from such Lender or Eligible Assignee, the Administrative Agent shall, promptly following the effective date thereof, provide to Borrower and the Lenders a revised Schedule 1.1 giving effect thereto. Borrower, the Administrative Paying Agent and the Lenders shall deem and treat the Persons listed as Lenders in the Register as the holders and owners of the Pro Rata Shares of the Revolving Facility listed therein for all purposes hereof, and no assignment or transfer of any Lender’s rights and obligations hereunder shall be effective, in each case unless and until an Assignment and Acceptance effecting the assignment or transfer thereof shall have been accepted by the Administrative Agent and recorded in the Register as provided above. Prior to such recordation, all amounts owed with respect to the applicable Pro Rata Share of the Revolving Facility shall be owed to the Lender listed in the Register as the owner thereof, and any request, authority or consent of any Person who, at the any reasonable time of making such request or giving such authority or consent, is listed in the Register as a Lender shall be conclusive and binding on any subsequent holder, assignee or transferee of the corresponding Pro Rata Share of the Revolving Facility.
(e) Each Lender may from time to time grant participations upon reasonable prior notice. Any Lender may, without the consent of the Borrower, sell participation interests in its Advances and obligations hereunder to one or more banks or other financial institutions in or to all or a portion Person that is not a Disqualified Lender (each such recipient of its rights and/or obligations under this Agreementa participation a “Participant”); provided, howeverthat after giving effect to the sale of such participation, that (i) such LenderXxxxxx’s obligations under this Agreement hereunder and rights to consent to any waiver hereunder or amendment hereof shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) the participating banks or other financial institutions shall not be a all amounts payable to such Lender hereunder for and all rights to consent to any purpose except, waiver hereunder or amendment hereof shall be determined as if the participation agreement so provides, for the purposes of Sections 3.5, 3.6, 11.11 and 11.21 but only to the extent that the cost of such benefits to Borrower does Xxxxxx had not exceed the cost which Borrower would have incurred in respect of the Lender granting sold such participation absent interest, and the participation, (iv) Borrower, the Administrative Agent and the other Lenders parties hereto shall continue to deal solely and directly with such Lender and not be obligated to deal with such participant. Each Lender that sells a participation shall, acting solely for this purpose as an agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the outstanding principal amounts (and accrued interest) of each Participant’s interest in the Advances or other obligations under the Transaction Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Transaction Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Agent shall have no responsibility for maintaining a Participant Register. Each recipient of a participation shall, to the fullest extent permitted by law, have the same rights, benefits and obligations (including the obligation to provide documentation pursuant to Section 2.15(G)), hereunder with respect to the rights and benefits so participated as it would have if it were a Lender hereunder, except that no Participant shall be entitled to receive any greater payment under Sections 2.11 or 2.15 than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation. [***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause competitive harm to the company if publicly disclosed. Notwithstanding any other provision of this Agreement to the contrary, (i) a Lender may pledge as collateral, or grant a security interest in, all or any portion of its rights in, to and under this Agreement to a security trustee in connection with the funding by such Lender’s rights and obligations under this Agreement, (v) the participation interest shall be expressed as a percentage Lender of the granting Lender’s Pro Rata Share of the Revolving Facility as it then exists and shall not restrict an increase in the Revolving Facility (or the aggregate Commitments pertaining thereto), or in the granting Lender’s rights and obligations hereunder, so long as the amount of the participation interest is not affected thereby and (vi) Advances without the consent of the holder of Borrower; provided that no such participation interest pledge or grant shall not be required for amendments or waivers of provisions of the Loan Documents other than those which (A) extend any Amortization Date, any applicable Maturity Date or any other date upon which any payment of money is due to the Lenders, (B) reduce the rate of interest on the Notes, any fee or any other monetary amount payable to the Lenders, (C) reduce the amount of any installment of principal due under the Notes, or (D) release any Guarantor such Lender from its Guaranty.
(f) Borrower agrees that upon the occurrence and during the continuance of any Event of Default, each Lender shall be entitled to assign its rights hereunder and under the Loan Documents, or grant participation interests in its rights obligations under this Agreement and the Loan Documents, to any Person, in whole or in any part thereof, notwithstanding any provisions contained herein (including those set forth in subsection (b) above) or in any other Loan Document to the contrary, except that, other than (i) assignments by a Lender to an Affiliate of such Lender or to another Lender or (ii) pledges described in a Conduit Lender may at any time, without any requirement to obtain the last sentence of subsection (a) above, no assignment shall be made without the approval consent of the Administrative AgentAgent or the Borrower, pledge or grant a security interest in all or any portion of its rights (including, without limitation, rights to payment of capital and yield) under this Agreement to a collateral agent or trustee for its commercial paper program.
Appears in 1 contract
Samples: Credit Agreement (Sunnova Energy International Inc.)
Binding Effect; Assignment. (a) This Agreement and the other Loan Documents to which Borrower is a Party will be binding upon and inure to the benefit of Borrower, the Administrative AgentAgents, each of the LendersBanks, and their respective successors and assigns, except that except as permitted in Section 6.3, Borrower may not assign its rights hereunder or thereunder or any interest herein or therein without the prior written consent of all the Lenders. Each Lender represents that it is not acquiring its Note with a view to the distribution thereof within the meaning of the Securities Act of 1933, as amended (subject to any requirement that disposition of such Note must be within the control of such Lender)Banks. Any Lender Bank may at any time pledge its Note Notes or any other instrument evidencing its rights as a Lender under this Agreement Bank hereunder to a Federal Reserve Bank, but no such pledge shall release that Lender Bank from its obligations hereunder or grant to such Federal Reserve Bank the rights of a Lender Bank hereunder absent foreclosure of such pledge.
(b) From time to time following the Closing Effective Date, each Lender Bank may assign to one or more Eligible Assignees Assignee all or any portion of its rights and obligations under this Agreement (including all or a portion Pro Rata Share of its Commitment, the Advances owing to it and the Note or Notes held by it)Commitments; provided that, subject to subsection (f) below, that (i) such Eligible Assignee, if not then a Lender or an Affiliate of the assigning LenderBank, shall be approved by each of the Administrative Agent (which approval shall not be unreasonably withheld) and by Borrower (neither of which approvals approval shall not be unreasonably withheld or delayedwithheld), (ii) such assignment shall be evidenced by an a Commitment Assignment and Acceptance, a copy of which shall be furnished to the Administrative Agent as hereinbelow provided, ; (iii) except in the case of an assignment to an Affiliate of the assigning LenderBank, to another Lender Bank or of the entire remaining rights and obligations Commitments of the assigning Lender under this AgreementBank, the assignment shall not assign a portion Pro Rata Share of such assigning Lender’s the Commitments and/or Advances owing to such assigning Lender that is equivalent to less than $3,000,00015,000,000 and that is not an integral multiple of $5,000,000, (iv) except in the case of an assignment of the entire remaining Commitments of the assigning Bank, giving effect to the assignment, the assigning Bank will not be in violation of its Applicable Minimum Hold Requirement and (ivv) the effective date of any such assignment shall be as specified in the Commitment Assignment and Acceptance, but not earlier than the date which is five (5) Banking Days after the date the Administrative Agent has received the Commitment Assignment and Acceptance. Upon the effective date of such Commitment Assignment and Acceptance, the Eligible Assignee named therein shall be a Lender Bank for all purposes of this Agreement, Agreement with the Pro Rata Shares of the Commitments and/or Advances therein set forth and, to the extent of such Commitments and/or AdvancesPro Rata Shares, the assigning Lender Bank shall be released from its further obligations under this Agreement. Borrower agrees that it shall execute and deliver (against delivery by the assigning Lender Bank to Borrower of such Lender’s Notesits Notes under this Agreement) to such assignee LenderBank, Notes evidencing that assignee Lender’s Commitments and/or AdvancesBank's Pro Rata Share, and to the assigning LenderBank, Notes evidencing the remaining balance of the Commitments and/or Advances Pro Rata Share retained by the assigning LenderBank.
(c) By executing and delivering an a Commitment Assignment and Acceptance, the Eligible Assignee thereunder acknowledges and agrees that: (i) other than the representation and warranty that it is the legal and beneficial owner of the rights and obligations hereunder Pro Rata Shares of the Commitments being assigned thereby free and clear of any adverse claim, the assigning Lender Bank has made 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 or sufficiency of this Agreement or any other Loan Document; (ii) the assigning Lender Bank has made no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance by Borrower of the Obligationsits obligations under this Agreement; (iii) it has received a copy of this Agreement, together with copies of the most recent financial statements delivered pursuant to Section 7.1 this Agreement and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Commitment Assignment and Acceptance; (iv) it will, independently and without reliance upon the Administrative Agent Agent, or any Lender Bank and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) it appoints and authorizes the Administrative Agent to take such action and to exercise such powers under this Agreement as are delegated to the Administrative Agent by this Agreement; and (vi) 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 LenderBank.
(d) The Administrative Agent shall maintain at the Administrative Agent’s Office a copy of each Assignment and Acceptance delivered to it and a register (the “Register”) of the names and address of each of the Lenders and the Pro Rata Share of the Commitments held by each Lender, giving effect to each Assignment and Acceptance. The Register shall be available during normal business hours for inspection by Borrower or any Lender upon reasonable prior notice to the Administrative Agent. After receipt of a completed Commitment Assignment and Acceptance executed by any Lender Bank and an Eligible Assignee, and receipt of an assignment fee of $3,500 4,000 from such Lender or Eligible Assignee, the Administrative Agent shall, promptly following at least one Banking Day prior to the effective date thereof, provide to Borrower and the Lenders Banks a revised Schedule 1.1 giving effect thereto. Borrower, the Administrative Agent and the Lenders shall deem and treat the Persons listed as Lenders in the Register as the holders and owners of the Pro Rata Shares of the Revolving Facility listed therein for all purposes hereof, and no assignment or transfer of any Lender’s rights and obligations hereunder shall be effective, in each case unless and until an Assignment and Acceptance effecting the assignment or transfer thereof shall have been accepted by the Administrative Agent and recorded in the Register as provided above. Prior to such recordation, all amounts owed with respect to the applicable Pro Rata Share of the Revolving Facility shall be owed to the Lender listed in the Register as the owner thereof, and any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is listed in the Register as a Lender shall be conclusive and binding on any subsequent holder, assignee or transferee of the corresponding Pro Rata Share of the Revolving Facility.
(e) Each Lender Bank may from time to time grant participations to one or more banks or other financial institutions (including another Bank) in or to all or a portion its Pro Rata Share of its rights and/or obligations under this Agreementthe Commitments; provided, however, that (i) such Lender’s participant, if not an Affiliate of the granting Bank, shall be approved by Borrower (which approval shall not be unreasonably withheld), (ii) such Bank's obligations under this Agreement shall remain unchanged, (iiiii) such Lender Bank shall remain solely responsible to the other parties hereto and thereto for the performance of such obligations, (iiiiv) the participating banks bank or other financial institutions institution shall not be a Lender Bank hereunder for any purpose except, if the participation agreement so provides, for the purposes of Sections 3.5, 3.6, 11.11 and 11.21 recovery of eurodollar costs or capital adequacy expenses or indemnifications provided to the Banks under this Agreement but only to the extent that the cost of such benefits to Borrower does not exceed the cost which Borrower would have incurred in respect of the Lender granting such participation Bank absent the participation, (ivv) the participating bank or other financial institution shall be prohibited from transferring, encumbering or granting any sub-participation interest in the participation interest, (vi) Borrower, the Administrative Agent Agent, and the other Lenders Banks shall continue to deal solely and directly with such Lender Bank in connection with such Lender’s Bank's rights and obligations under this Agreement, (vvii) the participation interest granted shall not be expressed as with respect to a percentage of the granting Lender’s Pro Rata Share of the Revolving Facility as it then exists and shall not restrict an increase in Commitments equivalent to less than $15,000,000, (viii) giving effect to the Revolving Facility (or the aggregate Commitments pertaining thereto)participation, or in the granting Lender’s rights and obligations hereunderBank will not be in violation of its Applicable Minimum Hold Requirement, so long as the amount of the participation interest is not affected thereby and (viix) the consent of the holder of such participation interest shall not be required for amendments or waivers of provisions of the Loan Documents other than those which (A) extend any Amortization Date, any applicable Maturity Date the maturity dates or any other date upon which any payment of money is due to the LendersBanks, (B) reduce the rate of interest on the Notesinterest, any fee or any other monetary amount payable to the LendersBanks, (C) reduce the amount of any installment of principal due under to the NotesBanks thereunder, or (D) release any Guarantor from its Guaranty.
(f) Borrower agrees that upon the occurrence and during the continuance material portion of any Event collateral securing any of Default, each Lender shall be entitled to assign its rights hereunder and under the Loan Documents, or grant participation interests in its rights under this Agreement and the Loan Documents, to any Person, in whole or in any part thereof, notwithstanding any provisions contained herein (including those set forth in subsection (b) above) or in any other Loan Document obligations of Borrowers to the contraryBanks and (x) to the extent that the holder of the participation interest is granted consent rights with respect to the matters described in clause (ix), except that, other than (i) assignments such rights must be subject to a voting procedure whereby the holders of the entire Pro Rata Share of the Commitments held by the participating Bank shall act in such matters in accordance with the vote of a Lender to an Affiliate majority-in-interest of such Lender or to another Lender or (ii) pledges described in the last sentence of subsection (a) above, no assignment shall be made without the approval Pro Rata Share of the Administrative AgentCommitments.
Appears in 1 contract
Samples: Revolving Loan Agreement (Kaufman & Broad Home Corp)
Binding Effect; Assignment. (a) This Agreement and the other Loan Documents to which Borrower is a Party party will be binding upon and inure to the benefit of Borrower, the Administrative Agent, each of the Lenders, Lenders and their respective successors and assigns, except that Borrower may not not, except as permitted by Section 7.03, assign its rights hereunder or thereunder or any interest herein or therein without the prior written consent of all the Lenders. Each Lender represents that it is not acquiring its Note with a view to the distribution thereof within the meaning of the Securities Act of 1933, as amended (subject to Lenders and any requirement that disposition of such Note must attempted assignment shall be within the control of such Lender)void. Any Lender may at any time pledge its Note or any other instrument evidencing its rights as a Lender under this Agreement to a Federal Reserve BankBank or, if such Lender is a fund, to any trustee or to any other representative of holders of obligations owed or securities issued by such fund as security for such obligations or securities, but no such pledge shall release that such Lender from its obligations hereunder or grant to such Federal Reserve Bank or trust or other representative the rights of a Lender hereunder absent foreclosure of such pledge, and any transfer to any Person upon the enforcement of such pledge shall be subject to this Section 10.04.
(b) From time to time following the Closing Datetime, each Lender may assign to one or more Eligible Assignees banks or other financial institutions (with any such bank or other financial institution, other than an Affiliate of the assigning Lender, being required to have a combined capital and surplus of at least $250,000,000 (such qualifications being subject to waiver by Borrower and Administrative Agent)) all or any portion of its rights and obligations under this Agreement (including all or a portion Commitment and/or Extensions of its Commitment, the Advances owing to it and the Note or Notes held by it)Credit; provided that, subject to subsection (f) below, that (i) such Eligible Assigneeassignment, if not then to a Lender or an Affiliate of the assigning Lender, shall be approved by the Administrative Agent and Borrower consented to (neither of which approvals consents shall not be unreasonably withheld or delayed)withheld) by Borrower at all times other than during the existence of an Event of Default and by Administrative Agent, (ii) such assignment shall be evidenced by an Assignment and Acceptance, a copy of which a duly signed and completed Assignment and Acceptance shall be furnished delivered to the Administrative Agent as hereinbelow providedAgent, (iii) except in the case of an assignment (A) to an Affiliate of the assigning Lender, Lender or to another Lender or (B) of the entire remaining rights and obligations Commitment of the assigning Lender under this AgreementLender, the assignment portion of the Commitment assigned shall not assign a portion of such assigning Lender’s Commitments and/or Advances owing to such assigning Lender that is equivalent to be less than $3,000,000the Minimum Amount therefor, and (iv) the effective date of any such assignment shall be as specified in the Assignment and Acceptance, but not earlier than the date which is five (5) Banking Business Days after the date the Administrative Agent has received the Assignment and Acceptance. Upon obtaining any consent required as set forth in the effective date prior sentence, any forms required by Section 10.20 and payment of such Assignment and Acceptancethe requisite fee described below, the Eligible Assignee assignee named therein shall be a Lender for all purposes of this Agreement, with the Commitments and/or Advances therein set forth and, Agreement to the extent of the Assigned Interest (as defined in such Commitments and/or AdvancesAssignment and Acceptance), and, except for rights and obligations which by their terms survive termination of any Commitments, the assigning Lender shall be released from its any further obligations under this AgreementAgreement to the extent of such Assigned Interest. Upon request, Borrower agrees that it shall execute and deliver (against delivery by new or replacement Notes to the assigning Lender and the assignee Lender to Borrower of such Lender’s Notes) evidence Loans made by them. Administrative Agent's consent to such assignee Lender, Notes evidencing that assignee Lender’s Commitments and/or Advances, any assignment shall not be deemed to constitute any representation or warranty by any Administrative Agent-Related Person as to any matter. Administrative Agent shall record the information contained in the Assignment and to Acceptance in the assigning Lender, Notes evidencing the remaining balance of the Commitments and/or Advances retained by the assigning LenderRegister.
(c) By executing and delivering an Assignment and Acceptance, the Eligible Assignee thereunder acknowledges and agrees that: (i) other than the representation and warranty that it is the legal and beneficial owner of the rights and obligations hereunder being assigned thereby free and clear of any adverse claim, the assigning Lender has made 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 or sufficiency of this Agreement or any other Loan Document; (ii) the assigning Lender has made no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance by Borrower of the Obligations; (iii) it has received a copy of this Agreement, together with copies of the most recent financial statements delivered pursuant to Section 7.1 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) it will, independently and without reliance upon the Administrative Agent or any Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) it appoints and authorizes the Administrative Agent to take such action and to exercise such powers under this Agreement as are delegated to the Administrative Agent by this Agreement; and (vi) 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.
(d) The Administrative Agent shall maintain at the Administrative Agent’s Office a copy of each Assignment and Acceptance delivered to it and a register (the “Register”) of the names and address of each of the Lenders and the Pro Rata Share of the Commitments held by each Lender, giving effect to each Assignment and Acceptance. The Register shall be available during normal business hours for inspection by Borrower or any Lender upon reasonable prior notice to the Administrative Agent. After receipt of a completed Assignment and Acceptance executed by any Lender and an Eligible AssigneeAcceptance, and receipt of an assignment fee of $3,500 from such assignee and/or such assigning Lender or Eligible Assignee(including in the case of assignments to Affiliates of assigning Lenders), the Administrative Agent shall, promptly following accept such Assignment and Acceptance and record information contained therein in the Register on the effective date thereof, provide to Borrower and the Lenders a revised Schedule 1.1 giving effect thereof determined pursuant thereto. Borrower, the Administrative Agent and the Lenders shall deem and treat the Persons listed as Lenders in the Register as the holders and owners of the Pro Rata Shares of the Revolving Facility listed therein for all purposes hereof, and no assignment or transfer of any Lender’s rights and obligations hereunder shall be effective, in each case unless and until an Assignment and Acceptance effecting the assignment or transfer thereof shall have been accepted by the Administrative Agent and recorded in the Register as provided above. Prior to such recordation, all amounts owed with respect to the applicable Pro Rata Share of the Revolving Facility shall be owed to the Lender listed in the Register as the owner thereof, and any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is listed in the Register as a Lender shall be conclusive and binding on any subsequent holder, assignee or transferee of the corresponding Pro Rata Share of the Revolving Facility.
(ed) Each Lender may from time to time time, without the consent of any other Person, grant participations to one or more banks or other financial institutions Persons (including another Lender) in or to all or a any portion of its rights Commitment and/or obligations under this AgreementExtensions of Credit; provided, however, that (i) such Lender’s 's obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) the participating banks bank or other financial institutions institution shall not be a Lender hereunder for any purpose except, if the participation agreement so provides, for the purposes of Sections 3.5, 3.6, 11.11 and 11.21 the increased cost provisions of Section 3 (but only to the extent that the cost of such benefits to Borrower does not exceed the cost which Borrower would have incurred in respect of the such Lender granting such participation absent the participation) and for purposes of Section 10.06, (iv) Borrower, the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s 's rights and obligations under this Agreement, and (v) the participation interest shall be expressed as a percentage of the granting Lender’s Pro Rata Share of the Revolving Facility as it then exists and shall not restrict an increase in the Revolving Facility (or the aggregate Commitments pertaining thereto), or in the granting Lender’s rights and obligations hereunder, so long as the amount of the participation interest is not affected thereby and (vi) the consent of the holder of such participation interest shall not be required for amendments or waivers of provisions of the Loan Documents other than those Documents; provided however, that the assigning Lender may, in any agreement with a participant, give such participant the right to consent (as between the assigning Lender and such participant) to any matter which (A) extend any Amortization Date, any applicable extends the Maturity Date as to such participant or any other date upon which any payment of money is due to the Lenderssuch participant, (B) reduce reduces the rate of interest on the Notes, owing to such participant or any fee or any other monetary amount payable owing to the Lenderssuch participant, or (C) reduce reduces the amount of any installment scheduled payment of principal due under owing to such participant. Any Lender that sells a participation to any Person that is a "foreign corporation, partnership or trust" within the Notes, meaning of the Code shall include in its participation agreement with such Person a covenant by such Person that such Person will comply with the provisions of Section 10.20 as if such Person were a Lender and provide that Administrative Agent and Borrower shall be third party beneficiaries of such covenant. Each Lender that sells or grants a participation shall (Da) release any Guarantor withhold or deduct from its Guaranty.
(f) Borrower agrees that upon each payment to the occurrence and during holder of such participation the continuance amount of any Event of Defaulttax required under applicable law to be withheld or deducted from such payment and not withheld or deducted therefrom by Borrower or Administrative Agent, each Lender shall be entitled to assign its rights hereunder and under the Loan Documents, or grant participation interests in its rights under this Agreement and the Loan Documents, to any Person, in whole or in any part thereof, notwithstanding any provisions contained herein (including those set forth in subsection (b) above) pay the tax so withheld or in any other Loan Document deducted by it to the contraryappropriate taxing authority in accordance with applicable law and (c) indemnify Borrower and Administrative Agent for any losses, except that, other than (i) assignments by cost and expenses that they may incur as a Lender result of any failure to an Affiliate of so withhold or deduct and pay such Lender or to another Lender or (ii) pledges described in the last sentence of subsection (a) above, no assignment shall be made without the approval of the Administrative Agenttax.
Appears in 1 contract
Samples: 364 Day Revolving Credit Agreement (Comcast Cable Communications Inc)
Binding Effect; Assignment. (a) This 12.8.1 Subject to the terms of Section 10, this Agreement and the other Loan Documents to which Borrower is a Party party will be binding upon and inure to the benefit of Borrower, the Administrative Agent, Fronting Bank and each of the Lenders, Lenders and their respective successors and assigns, except that Borrower may not assign its rights hereunder or thereunder or any interest herein or therein without the prior written consent of all the Lenders. Each Lender represents that it is not acquiring its Note with a view to the distribution thereof within the meaning of the Securities Act of 1933, as amended (subject to any requirement that disposition of such Note must be within the control of such Lender). Any Lender may at any time pledge its Note or any other instrument evidencing its rights as a Lender lender under this Agreement to a Federal Reserve Bank, but no such pledge shall release that Lender from its obligations hereunder or grant to such Federal Reserve Bank the rights of a Lender hereunder absent foreclosure of such pledge.
(b) 12.8.2 From time to time following the Closing Date, each Lender may assign to one or more Eligible Assignees all or any portion of its rights and obligations under this Agreement (including all or a portion Pro Rata Share of its Commitment, the Advances owing to it and the Note or Notes held by it)Commitments; provided that, subject to subsection that (f) below, (ia) such Eligible Assignee, if not then a Lender or an Affiliate of the assigning Lender, assignment shall be approved by the Administrative Agent and Borrower (neither and, provided no Default or Event of Default then exists, Borrower, which approvals approval(s) shall not be unreasonably withheld withheld, conditioned or delayed), ; (iib) such assignment shall be evidenced by an a Commitment Assignment and Acceptance, a copy of which shall be furnished to the Administrative Agent as hereinbelow provided, provided and made available to Borrower upon its request; (iiic) except in the case of an assignment (i) to an Affiliate of the assigning Lender, Lender or to another Lender or (ii) of the entire remaining rights and obligations Commitments of the assigning Lender under this AgreementLender, the assignment shall not assign a portion Pro Rata Share of such assigning Lender’s the Commitments and/or Advances owing to such assigning Lender that is equivalent to less than $3,000,000, 5,000,000; and (ivd) the effective date of any such assignment shall be as specified in the Commitment Assignment and Acceptance, but not earlier than the date which is five (5) Banking Business Days after the date the Administrative Agent has received the Commitment Assignment and Acceptance. Upon the effective date of such Commitment Assignment and Acceptance, the Eligible Assignee named therein shall be a Lender for all purposes of this Agreement, with the Pro Rata Share of the Commitments and/or Advances therein set forth and, to the extent of such Commitments and/or AdvancesPro Rata Share, the assigning Lender shall be released from its further obligations under this Agreement. Borrower agrees that it shall execute and deliver (against delivery by the assigning Lender to Borrower of such Lender’s its Notes) to such assignee Lender, Notes evidencing that assignee Lender’s Commitments and/or AdvancesPro Rata Share of the Commitments, and to the assigning Lender, Notes evidencing the remaining balance of the Commitments and/or Advances Pro Rata Share retained by the assigning Lender.
(c) By executing and delivering an Assignment and Acceptance, the Eligible Assignee thereunder acknowledges and agrees that: (i) other than the representation and warranty that it is the legal and beneficial owner of the rights and obligations hereunder being assigned thereby free and clear of any adverse claim, the assigning Lender has made 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 or sufficiency of this Agreement or any other Loan Document; (ii) the assigning Lender has made no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance by Borrower of the Obligations; (iii) it has received a copy of this Agreement, together with copies of the most recent financial statements delivered pursuant to Section 7.1 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) it will, independently and without reliance upon the Administrative Agent or any Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) it appoints and authorizes the Administrative Agent to take such action and to exercise such powers under this Agreement as are delegated to the Administrative Agent by this Agreement; and (vi) 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.
(d) The Administrative Agent shall maintain at the Administrative Agent’s Office a copy of each Assignment and Acceptance delivered to it and a register (the “Register”) of the names and address of each of the Lenders and the Pro Rata Share of the Commitments held by each Lender, giving effect to each Assignment and Acceptance. The Register shall be available during normal business hours for inspection by Borrower or any Lender upon reasonable prior notice to the Administrative Agent. After receipt of a completed Assignment and Acceptance executed by any Lender and an Eligible Assignee, and receipt of an assignment fee of $3,500 from such Lender or Eligible Assignee, the Administrative Agent shall, promptly following the effective date thereof, provide to Borrower and the Lenders a revised Schedule 1.1 giving effect thereto. Borrower, the Administrative Agent and the Lenders shall deem and treat the Persons listed as Lenders in the Register as the holders and owners of the Pro Rata Shares of the Revolving Facility listed therein for all purposes hereof, and no assignment or transfer of any Lender’s rights and obligations hereunder shall be effective, in each case unless and until an Assignment and Acceptance effecting the assignment or transfer thereof shall have been accepted by the Administrative Agent and recorded in the Register as provided above. Prior to such recordation, all amounts owed with respect to the applicable Pro Rata Share of the Revolving Facility shall be owed to the Lender listed in the Register as the owner thereof, and any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is listed in the Register as a Lender shall be conclusive and binding on any subsequent holder, assignee or transferee of the corresponding Pro Rata Share of the Revolving Facility.
(e) Each Lender may from time to time grant participations to one or more banks or other financial institutions in or to all or a portion of its rights and/or obligations under this Agreement; provided, however, that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) the participating banks or other financial institutions shall not be a Lender hereunder for any purpose except, if the participation agreement so provides, for the purposes of Sections 3.5, 3.6, 11.11 and 11.21 but only to the extent that the cost of such benefits to Borrower does not exceed the cost which Borrower would have incurred in respect of the Lender granting such participation absent the participation, (iv) Borrower, the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement, (v) the participation interest shall be expressed as a percentage of the granting Lender’s Pro Rata Share of the Revolving Facility as it then exists and shall not restrict an increase in the Revolving Facility (or the aggregate Commitments pertaining thereto), or in the granting Lender’s rights and obligations hereunder, so long as the amount of the participation interest is not affected thereby and (vi) the consent of the holder of such participation interest shall not be required for amendments or waivers of provisions of the Loan Documents other than those which (A) extend any Amortization Date, any applicable Maturity Date or any other date upon which any payment of money is due to the Lenders, (B) reduce the rate of interest on the Notes, any fee or any other monetary amount payable to the Lenders, (C) reduce the amount of any installment of principal due under the Notes, or (D) release any Guarantor from its Guaranty.
(f) Borrower agrees that upon the occurrence and during the continuance of any Event of Default, each Lender shall be entitled to assign its rights hereunder and under the Loan Documents, or grant participation interests in its rights under this Agreement and the Loan Documents, to any Person, in whole or in any part thereof, notwithstanding any provisions contained herein (including those set forth in subsection (b) above) or in any other Loan Document to the contrary, except that, other than (i) assignments by a Lender to an Affiliate of such Lender or to another Lender or (ii) pledges described in the last sentence of subsection (a) above, no assignment shall be made without the approval of the Administrative Agent.
Appears in 1 contract
Samples: Credit Agreement (Dts, Inc.)
Binding Effect; Assignment. (a) This Agreement and the other Loan Documents to which Borrower is a Party will be binding upon and inure to the benefit of Borrower, the Administrative Agent, each of the LendersLender, and their respective successors and assigns, except EXCEPT that Borrower may not assign its rights hereunder or thereunder or any interest herein or therein without the prior written consent of all the LendersLender. Each Lender represents that it is not acquiring its Note the Notes with a view to the distribution thereof within the meaning of the Securities Act of 1933, as amended (subject to any requirement that disposition of such Note Notes must be within the control of such Lender). Any Lender may at any time pledge its Note the Notes or any other instrument evidencing its rights as a Lender under this Agreement to a Federal Reserve Bank, but no such pledge shall release that Lender from its obligations hereunder or grant to such Federal Reserve Bank the rights of a Lender hereunder absent foreclosure of such pledge.
(b) From time to time following the Closing Date, each Lender may assign to one or more Eligible Assignees all or any portion of its rights and obligations under this Agreement (including all or a portion of its Commitment, the Advances owing to it and the Note or Notes held by it); provided that, subject to subsection (f) below, (i) such Eligible Assignee, if not then a Lender or an Affiliate of the assigning Lender, shall be approved by the Administrative Agent and Borrower (neither of which approvals shall be unreasonably withheld or delayed), (ii) such assignment shall be evidenced by an Assignment and Acceptance, a copy of which shall be furnished to the Administrative Agent as hereinbelow provided, (iii) except in the case of an assignment to an Affiliate of the assigning Lender, to another Lender or of the entire remaining rights and obligations of the assigning Lender under this Agreement, the assignment shall not assign a portion of such assigning Lender’s Commitments and/or Advances owing to such assigning Lender that is equivalent to less than $3,000,000, and (iv) the effective date of any such assignment shall be as specified in the Assignment and Acceptance, but not earlier than the date which is five (5) Banking Days after the date the Administrative Agent has received the Assignment and Acceptance. Upon the effective date of such Assignment and Acceptance, the Eligible Assignee named therein shall be a Lender for all purposes of this Agreement, with the Commitments and/or Advances therein set forth and, to the extent of such Commitments and/or Advances, the assigning Lender shall be released from its further obligations under this Agreement. Borrower agrees that it shall execute and deliver (against delivery by the assigning Lender to Borrower of such Lender’s Notes) to such assignee Lender, Notes evidencing that assignee Lender’s Commitments and/or Advances, and to the assigning Lender, Notes evidencing the remaining balance of the Commitments and/or Advances retained by the assigning Lender.
(c) By executing and delivering an Assignment and Acceptance, the Eligible Assignee thereunder acknowledges and agrees that: (i) other than the representation and warranty that it is the legal and beneficial owner of the rights and obligations hereunder being assigned thereby free and clear of any adverse claim, the assigning Lender has made 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 or sufficiency of this Agreement or any other Loan Document; (ii) the assigning Lender has made no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance by Borrower of the Obligations; (iii) it has received a copy of this Agreement, together with copies of the most recent financial statements delivered pursuant to Section 7.1 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) it will, independently and without reliance upon the Administrative Agent or any Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) it appoints and authorizes the Administrative Agent to take such action and to exercise such powers under this Agreement as are delegated to the Administrative Agent by this Agreement; and (vi) 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.
(d) The Administrative Agent shall maintain at the Administrative Agent’s Office a copy of each Assignment and Acceptance delivered to it and a register (the “Register”) of the names and address of each of the Lenders and the Pro Rata Share of the Commitments held by each Lender, giving effect to each Assignment and Acceptance. The Register shall be available during normal business hours for inspection by Borrower or any Lender upon reasonable prior notice to the Administrative Agent. After receipt of a completed Assignment and Acceptance executed by any Lender and an Eligible Assignee, and receipt of an assignment fee of $3,500 from such Lender or Eligible Assignee, the Administrative Agent shall, promptly following the effective date thereof, provide to Borrower and the Lenders a revised Schedule 1.1 giving effect thereto. Borrower, the Administrative Agent and the Lenders shall deem and treat the Persons listed as Lenders in the Register as the holders and owners of the Pro Rata Shares of the Revolving Facility listed therein for all purposes hereof, and no assignment or transfer of any Lender’s rights and obligations hereunder shall be effective, in each case unless and until an Assignment and Acceptance effecting the assignment or transfer thereof shall have been accepted by the Administrative Agent and recorded in the Register as provided above. Prior to such recordation, all amounts owed with respect to the applicable Pro Rata Share of the Revolving Facility shall be owed to the Lender listed in the Register as the owner thereof, and any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is listed in the Register as a Lender shall be conclusive and binding on any subsequent holder, assignee or transferee of the corresponding Pro Rata Share of the Revolving Facility.
(e) Each Lender may from time to time grant participations to one or more banks or other financial institutions in or to all or a portion of its rights and/or obligations under this Agreementeither of the Loans; providedPROVIDED, howeverHOWEVER, that (i) such Lender’s 's obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) the participating banks or other financial institutions shall not be a Lender lender hereunder for any purpose exceptEXCEPT, if the participation agreement so provides, for the purposes of Sections 3.53.6, 3.63.7, 11.11 and 11.21 11.22, but only to the extent that the cost of such benefits to Borrower does not exceed the cost which Borrower would have incurred in respect of the Lender granting such participation participant absent the participation, (iv) Borrower, the Administrative Agent Borrower and the other Lenders Lender shall continue to deal solely and directly with such Lender each other in connection with such Lender’s 's rights and obligations under this Agreement, and (v) the participation interest shall be expressed as a percentage of the granting Lender’s Pro Rata Share of the Revolving Facility as it then exists and shall not restrict an increase in the Revolving Facility (or the aggregate Commitments pertaining thereto), or in the granting Lender’s rights and obligations hereunder, so long as the amount of the participation interest is not affected thereby and (vi) the consent of the holder of such participation interest shall not be required for amendments or waivers of provisions of the Loan Documents other than OTHER THAN those which (A) extend any Amortization Date, any applicable the Term Loan A Maturity Date or the Term Loan B Maturity Date (other than in accordance with Section 8.2 above) or any other date upon which any payment of money is due to the LendersLender, (B) reduce the rate of interest on the Notes, any fee or any other monetary amount payable to the LendersLender, (C) reduce the amount of release any installment of principal due under the Notesmaterial Subsidiary Guaranty, or (D) release any Guarantor material Collateral from its Guaranty.
(f) Borrower agrees that upon the occurrence and during Lien of the continuance of any Event of Default, each Lender shall be entitled to assign its rights hereunder and under the Loan Collateral Documents, or grant participation interests except if such release of material Collateral occurs in its rights connection with a Disposition permitted under this Agreement and the Loan Documents, to any PersonSection 6.2, in whole or in any part thereof, notwithstanding any provisions contained herein (including those set forth in subsection (b) above) or in any other Loan Document to which case such release shall not require the contrary, except that, other than (i) assignments by a Lender to an Affiliate consent of such either Lender or to another Lender or (ii) pledges described any holder of a participation interest in the last sentence of subsection (a) above, no assignment shall be made without the approval of the Administrative AgentLoans.
Appears in 1 contract
Binding Effect; Assignment. (a) This Agreement and the other Loan Documents to which Borrower is a Party will shall be binding upon and inure to the benefit of Borrower, the Administrative Agent, each of the Lenders, parties and their respective successors and permitted assigns. Except as expressly provided herein, this Agreement is for the sole benefit of the parties and their respective successors and permitted assigns and nothing herein expressed or implied will give or be construed to give any Person, other than the parties and such successors and permitted assigns, except any legal or equitable rights hereunder; provided, however, that Borrower the parties hereto specifically acknowledge and agree that (i) the provisions of Section 6.6 hereof are intended to be for the benefit of, and shall be enforceable by, all indemnitees (in all of their capacities) affected thereby; and (ii) this Agreement is intended to be for the benefit of, and shall be enforceable in all respects by the Stockholders’ Representative on behalf of the Stockholders; provided, no assignment of this Agreement or of any rights or obligations hereunder may not assign its rights hereunder be made by any party hereto, directly or thereunder indirectly (by operation of Law or any interest herein or therein otherwise), without the prior written consent of all the Lenders. Each Lender represents that it is not acquiring its Note with a view to other parties hereto and any attempted assignment without the distribution thereof within the meaning of the Securities Act of 1933, as amended (subject to any requirement that disposition of such Note must be within the control of such Lender). Any Lender may at any time pledge its Note or any other instrument evidencing its rights as a Lender under this Agreement to a Federal Reserve Bank, but no such pledge shall release that Lender from its obligations hereunder or grant to such Federal Reserve Bank the rights of a Lender hereunder absent foreclosure of such pledge.
(b) From time to time following the Closing Date, each Lender may assign to one or more Eligible Assignees all or any portion of its rights and obligations under this Agreement (including all or a portion of its Commitment, the Advances owing to it and the Note or Notes held by it); provided that, subject to subsection (f) below, (i) such Eligible Assignee, if not then a Lender or an Affiliate of the assigning Lender, required consents shall be approved by the Administrative Agent and Borrower (neither of which approvals shall be unreasonably withheld or delayed), (ii) such assignment shall be evidenced by an Assignment and Acceptance, a copy of which shall be furnished to the Administrative Agent as hereinbelow provided, (iii) except in the case of an assignment to an Affiliate of the assigning Lender, to another Lender or of the entire remaining rights and obligations of the assigning Lender under this Agreement, the assignment shall not assign a portion of such assigning Lender’s Commitments and/or Advances owing to such assigning Lender that is equivalent to less than $3,000,000, and (iv) the effective date of any such assignment shall be as specified in the Assignment and Acceptance, but not earlier than the date which is five (5) Banking Days after the date the Administrative Agent has received the Assignment and Acceptance. Upon the effective date of such Assignment and Acceptance, the Eligible Assignee named therein shall be a Lender for all purposes of this Agreement, with the Commitments and/or Advances therein set forth and, to the extent of such Commitments and/or Advances, the assigning Lender shall be released from its further obligations under this Agreement. Borrower agrees that it shall execute and deliver (against delivery by the assigning Lender to Borrower of such Lender’s Notes) to such assignee Lender, Notes evidencing that assignee Lender’s Commitments and/or Advances, and to the assigning Lender, Notes evidencing the remaining balance of the Commitments and/or Advances retained by the assigning Lender.
(c) By executing and delivering an Assignment and Acceptance, the Eligible Assignee thereunder acknowledges and agrees that: (i) other than the representation and warranty that it is the legal and beneficial owner of the rights and obligations hereunder being assigned thereby free and clear of any adverse claim, the assigning Lender has made 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 or sufficiency of this Agreement or any other Loan Document; (ii) the assigning Lender has made no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance by Borrower of the Obligations; (iii) it has received a copy of this Agreement, together with copies of the most recent financial statements delivered pursuant to Section 7.1 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) it will, independently and without reliance upon the Administrative Agent or any Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) it appoints and authorizes the Administrative Agent to take such action and to exercise such powers under this Agreement as are delegated to the Administrative Agent by this Agreement; and (vi) 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.
(d) The Administrative Agent shall maintain at the Administrative Agent’s Office a copy of each Assignment and Acceptance delivered to it and a register (the “Register”) of the names and address of each of the Lenders and the Pro Rata Share of the Commitments held by each Lender, giving effect to each Assignment and Acceptance. The Register shall be available during normal business hours for inspection by Borrower or any Lender upon reasonable prior notice to the Administrative Agent. After receipt of a completed Assignment and Acceptance executed by any Lender and an Eligible Assignee, and receipt of an assignment fee of $3,500 from such Lender or Eligible Assignee, the Administrative Agent shall, promptly following the effective date thereof, provide to Borrower and the Lenders a revised Schedule 1.1 giving effect thereto. Borrower, the Administrative Agent and the Lenders shall deem and treat the Persons listed as Lenders in the Register as the holders and owners of the Pro Rata Shares of the Revolving Facility listed therein for all purposes hereof, and no assignment or transfer of any Lender’s rights and obligations hereunder shall be effective, in each case unless and until an Assignment and Acceptance effecting the assignment or transfer thereof shall have been accepted by the Administrative Agent and recorded in the Register as provided above. Prior to such recordation, all amounts owed with respect to the applicable Pro Rata Share of the Revolving Facility shall be owed to the Lender listed in the Register as the owner thereof, and any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is listed in the Register as a Lender shall be conclusive and binding on any subsequent holder, assignee or transferee of the corresponding Pro Rata Share of the Revolving Facility.
(e) Each Lender may from time to time grant participations to one or more banks or other financial institutions in or to all or a portion of its rights and/or obligations under this Agreementvoid; provided, however, that (i) such Lender’s obligations under this Agreement shall remain unchangedBuyer and Merger Sub may assign their respective rights, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) the participating banks or other financial institutions shall not be a Lender hereunder for any purpose except, if the participation agreement so provides, for the purposes of Sections 3.5, 3.6, 11.11 and 11.21 but only to the extent that the cost of such benefits to Borrower does not exceed the cost which Borrower would have incurred in respect of the Lender granting such participation absent the participation, (iv) Borrower, the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement, (v) the participation interest shall be expressed as a percentage of the granting Lender’s Pro Rata Share of the Revolving Facility as it then exists and shall not restrict an increase in the Revolving Facility (or the aggregate Commitments pertaining thereto), or in the granting Lender’s rights interests and obligations hereunder, so long as the amount of the participation interest is not affected thereby and (vi) without the consent of the holder of such participation interest shall not be required for amendments or waivers of provisions of the Loan Documents other than those which (A) extend any Amortization DatePerson, any applicable Maturity Date or any other date upon which any payment of money is due to the Lenders, (B) reduce the rate of interest on the Notes, any fee or any other monetary amount payable to the Lenders, (C) reduce the amount an Affiliate. No assignment of any installment of principal due under obligations hereunder shall relieve the Notes, or (D) release any Guarantor from its Guaranty.
(f) Borrower agrees that upon the occurrence and during the continuance parties hereto of any Event such obligations. Notwithstanding the foregoing, Buyer and Merger Sub may assign all of Default, each Lender shall be entitled to assign its rights hereunder and under the Loan Documents, or grant participation interests in its their respective rights under this Agreement and the Loan Documents, for collateral security purposes to any Person, in whole lender providing financing to Buyer or in Merger Sub but no such assignment shall relieve Buyer or Merger Sub of any part thereof, notwithstanding any provisions contained herein (including those set forth in subsection (b) above) liability or in any other Loan Document obligation hereunder. Notwithstanding anything to the contrarycontrary contained in this Agreement, except thatSection 3.3, other than Section 10.3, Section 10.5 and this Section 10.8 shall inure to the benefit of the Senior Lenders and their successors and assigns, each of whom are intended to be third party beneficiaries hereof and thereof (i) assignments by a Lender to an Affiliate it being understood and agreed that the provisions of such Lender or to another Lender or (ii) pledges described in sections will be enforceable by the last sentence of subsection (a) above, no assignment shall be made without the approval of the Administrative AgentSenior Lenders).
Appears in 1 contract
Samples: Merger Agreement (Plug Power Inc)
Binding Effect; Assignment. (a) This Agreement and the other Loan Documents to which Borrower is a Party party will be binding upon and inure to the benefit of Borrower, the Administrative Agent, each of the Lenders, Lenders and their respective successors and assigns, except that that, Borrower may not assign its rights hereunder or thereunder or any interest herein or therein without the prior written consent of all the Lenders. Each Lender represents that it is not acquiring its Note with a view to the distribution thereof within the meaning of the Securities Act of 1933, as amended (subject to Lenders and any requirement that disposition of such Note must attempted assignment shall be within the control of such Lender)void. Any Lender may at any time pledge its Note or any other instrument evidencing its rights as a Lender under this Agreement to (i) a Federal Reserve Bank, or (ii) in the case of any Lender that is an investment fund, to any holders of obligations (including, without limitation, investments involving repurchase obligations) owed or securities issued by such Lender, or to any trustee for, or other representative of such holders; but no such pledge shall release that Lender from its obligations hereunder or grant to such Federal Reserve Bank or other pledgee the rights of a Lender hereunder absent foreclosure of such pledge.
(b) From time to time following the Closing Date, each Lender may assign to one or more Eligible Assignees all or any portion of its rights and obligations under this Agreement (including all or a portion Pro Rata Share of its Commitment, the Advances owing to it and the Note or Notes held by it)Commitment and/or Extensions of Credit; provided that, subject to subsection (f) below, that (i) such Eligible Assigneeassignment, if not then to a Lender or Lender, an Affiliate of the assigning Lender, or a Related Fund of the assigning Lender, shall require the approval of Borrower at all times other than during the existence of a Default or Event of Default and Administrative Agent (which approval of Borrower or Administrative Agent, shall not be unreasonably withheld, conditioned or delayed and if Borrower does not respond during such ten (10) Business Days after receipt of a Notice of Assignment and Acceptance, such assignment shall be approved by the Administrative Agent and Borrower (neither of which approvals shall be unreasonably withheld or delayeddeemed approved), (ii) such assignment shall be evidenced by an a copy of a duly signed and completed Notice of Assignment and Acceptance, a copy of which shall be furnished to the Administrative Agent as hereinbelow provided, (iii) except in the case of an assignment to an Affiliate of the assigning Lender, to another Lender or of the entire remaining rights and obligations of the assigning Lender under this Agreement, the assignment shall not assign a portion of such assigning Lender’s Commitments and/or Advances owing to such assigning Lender that is equivalent to less than $3,000,000, and (iv) the effective date of any such assignment shall be as specified in the Assignment and Acceptance, but not earlier than the date which is five (5) Banking Days after the date the Administrative Agent has received the Assignment and Acceptance. Upon the effective date of such Assignment and Acceptance, the Eligible Assignee named therein shall be a Lender for all purposes of this Agreement, with the Commitments and/or Advances therein set forth and, to the extent of such Commitments and/or Advances, the assigning Lender shall be released from its further obligations under this Agreement. Borrower agrees that it shall execute and deliver (against delivery by the assigning Lender to Borrower of such Lender’s Notes) to such assignee Lender, Notes evidencing that assignee Lender’s Commitments and/or Advances, and to the assigning Lender, Notes evidencing the remaining balance of the Commitments and/or Advances retained by the assigning Lender.
(c) By executing and delivering an Assignment and Acceptance, the Eligible Assignee thereunder acknowledges and agrees that: (i) other than the representation and warranty that it is the legal and beneficial owner of the rights and obligations hereunder being assigned thereby free and clear of any adverse claim, the assigning Lender has made 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 or sufficiency of this Agreement or any other Loan Document; (ii) the assigning Lender has made no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance by Borrower of the Obligations; (iii) it has received a copy of this Agreement, together with copies of the most recent financial statements delivered pursuant to Section 7.1 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) it will, independently and without reliance upon the Administrative Agent or any Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) it appoints and authorizes the Administrative Agent to take such action and to exercise such powers under this Agreement as are delegated to the Administrative Agent by this Agreement; and (vi) 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.
(d) The Administrative Agent shall maintain at the Administrative Agent’s Office a copy of each Assignment and Acceptance delivered to it and a register (the “Register”) of the names and address of each of the Lenders and the Pro Rata Share of the Commitments held by each Lender, giving effect to each Assignment and Acceptance. The Register shall be available during normal business hours for inspection by Borrower or any Lender upon reasonable prior notice to the Administrative Agent. After receipt of a completed Assignment and Acceptance executed by any Lender and an Eligible Assignee, and receipt of an assignment fee of $3,500 from such Lender or Eligible Assignee, the Administrative Agent shall, promptly following the effective date thereof, provide to Borrower and the Lenders a revised Schedule 1.1 giving effect thereto. Borrower, the Administrative Agent and the Lenders shall deem and treat the Persons listed as Lenders in the Register as the holders and owners of the Pro Rata Shares of the Revolving Facility listed therein for all purposes hereof, and no assignment or transfer of any Lender’s rights and obligations hereunder shall be effective, in each case unless and until an Assignment and Acceptance effecting the assignment or transfer thereof shall have been accepted by the Administrative Agent and recorded in the Register as provided above. Prior to such recordation, all amounts owed with respect to the applicable Pro Rata Share of the Revolving Facility shall be owed to the Lender listed in the Register as the owner thereof, and any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is listed in the Register as a Lender shall be conclusive and binding on any subsequent holder, assignee or transferee of the corresponding Pro Rata Share of the Revolving Facility.
(e) Each Lender may from time to time grant participations to one or more banks or other financial institutions in or to all or a portion of its rights and/or obligations under this Agreement; provided, however, that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) the participating banks or other financial institutions shall not be a Lender hereunder for any purpose except, if the participation agreement so provides, for the purposes of Sections 3.5, 3.6, 11.11 and 11.21 but only to the extent that the cost of such benefits to Borrower does not exceed the cost which Borrower would have incurred in respect of the Lender granting such participation absent the participation, (iv) Borrower, the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement, (v) the participation interest shall be expressed as a percentage of the granting Lender’s Pro Rata Share of the Revolving Facility as it then exists and shall not restrict an increase in the Revolving Facility (or the aggregate Commitments pertaining thereto), or in the granting Lender’s rights and obligations hereunder, so long as the amount of the participation interest is not affected thereby and (vi) the consent of the holder of such participation interest shall not be required for amendments or waivers of provisions of the Loan Documents other than those which (A) extend any Amortization Date, any applicable Maturity Date or any other date upon which any payment of money is due to the Lenders, (B) reduce the rate of interest on the Notes, any fee or any other monetary amount payable to the Lenders, (C) reduce the amount of any installment of principal due under the Notes, or (D) release any Guarantor from its Guaranty.
(f) Borrower agrees that upon the occurrence and during the continuance of any Event of Default, each Lender shall be entitled to assign its rights hereunder and under the Loan Documents, or grant participation interests in its rights under this Agreement and the Loan Documents, to any Person, in whole or in any part thereof, notwithstanding any provisions contained herein (including those set forth in subsection (b) above) or in any other Loan Document to the contrary, except that, other than (i) assignments by a Lender to an Affiliate of such Lender or to another Lender or (ii) pledges described in the last sentence of subsection (a) above, no assignment shall be made without the approval of the Administrative Agent.
Appears in 1 contract
Binding Effect; Assignment. (a) This Agreement and the other Loan Documents to which Borrower is the Borrowers are a Party will be binding upon and inure to the benefit of Borrowerthe Borrowers, the Administrative Agent, each of the Lenders, and their respective successors and assigns, except EXCEPT that Borrower the Borrowers may not assign its their rights hereunder or thereunder or any interest herein or therein without the prior written consent of all the Lenders. Each Lender represents that it is not acquiring its Note with a view to the distribution thereof within the meaning of the Securities Act of 1933, as amended (subject to any requirement that disposition of such Note must be within the control of such Lender). Any Lender may at any time pledge its Note or any other instrument evidencing its rights as a Lender under this Agreement to a Federal Reserve Bank, but no such pledge shall release that Lender from its obligations hereunder or grant to such Federal Reserve Bank the rights of a Lender hereunder absent foreclosure of such pledge.
(b) From time to time following the Closing Date, each Lender may assign to one or more Eligible Assignees all or any portion of its rights and obligations under this Agreement (including all or a portion Pro Rata Share of its Commitment, the Advances owing to it and the Note or Notes held by it)Commitments; provided that, subject to subsection (f) below, PROVIDED that (i) such Eligible Assignee, if not then a Lender or an Affiliate of the assigning Lender, shall be approved by the Administrative Agent and Borrower (if no Event of Default then exists) the Borrowers (neither of which approvals shall be unreasonably withheld or delayed), (ii) such assignment shall be evidenced by an a Commitment Assignment and Acceptance, a copy of which shall be furnished to the Administrative Agent as hereinbelow provided, (iii) except EXCEPT in the case of an assignment to an Affiliate of the assigning Lender, to another Lender or of the entire remaining rights and obligations Commitments of the assigning Lender under this AgreementLender, the assignment shall not assign a portion Pro Rata Share of such assigning Lender’s the Commitments and/or Advances owing to such assigning Lender that is equivalent to less than $3,000,000, 10,000,000 and (iv) the effective date of any such assignment shall be as specified in the Commitment Assignment and Acceptance, but not earlier than the date which is five (5) Banking Days after the date the Administrative Agent has received the Commitment Assignment and Acceptance. Upon the effective date of such Commitment Assignment and Acceptance, the Eligible Assignee named therein shall be a Lender for all purposes of this Agreement, with the Pro Rata Share of the Commitments and/or Advances therein set forth and, to the extent of such Commitments and/or AdvancesPro Rata Share, the assigning Lender shall be released from its further obligations under this Agreement. Borrower agrees The Borrowers agree that it they shall execute and deliver (against delivery by the assigning Lender to Borrower the Borrowers of such Lender’s Notesits Note) to such assignee Lender, Notes a Note evidencing that assignee Lender’s Commitments and/or Advances's Pro Rata Share of the Commitment, and to the assigning Lender, Notes a Note evidencing the remaining balance Pro Rata Share of the Commitments and/or Advances retained by the assigning Lender.
(c) By executing and delivering an a Commitment Assignment and Acceptance, the Eligible Assignee thereunder acknowledges and agrees that: (i) other than the representation and warranty that it is the legal and beneficial owner of the rights and obligations hereunder Pro Rata Share of the Commitment being assigned thereby free and clear of any adverse claim, the assigning Lender has made 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 or sufficiency of this Agreement or any other Loan Document; (ii) the assigning Lender has made no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower the Borrowers or the performance by Borrower the Borrowers of the Obligations; (iii) it has received a copy of this Agreement, together with copies of the most recent financial statements delivered pursuant to Section 7.1 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Commitment Assignment and Acceptance; (iv) it will, independently and without reliance upon the Administrative Agent or any Lender and based on such documents and information as it shall deem appropriate at the time, continue xxxxx nue to make its own credit decisions in taking or not taking action under this Agreement; (v) it appoints and authorizes the Administrative Agent to take such action and to exercise such powers under this Agreement as are delegated to the Administrative Agent by this Agreement; and (vi) 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.
(d) The Administrative Agent shall maintain at the Administrative Agent’s 's Office a copy of each Commitment Assignment and Acceptance delivered to it and a register (the “"Register”") of the names and address of each of the Lenders and the Pro Rata Share of the Commitments Commitment held by each Lender, giving effect to each Commitment Assignment and Acceptance. The Register shall be available during normal business hours for inspection by Borrower the Borrowers or any Lender upon reasonable prior notice to the Administrative Agent. After receipt of a completed Commitment Assignment and Acceptance executed by any Lender and an Eligible Assignee, and receipt of an assignment fee of $3,500 from such Lender or Eligible AssigneeAssignee and consent from the Administrative Agent and, if applicable, the Borrower, the Administrative Agent shall, promptly following the effective date thereof, provide to Borrower the Borrowers and the Lenders a revised Schedule SCHEDULE 1.1 giving effect thereto. BorrowerThe Borrowers, the Administrative Agent and the Lenders shall deem and treat the Persons listed as Lenders in the Register as the holders and owners of the Pro Rata Shares Share of the Revolving Facility Commitment listed therein for all purposes hereof, and no assignment or transfer of any Lender’s rights and obligations hereunder such Pro Rata Share of the Commitment shall be effective, in each case unless and until an a Commitment Assignment and Acceptance effecting the assignment or transfer thereof shall have been accepted by the Administrative Agent and recorded in the Register as provided above. Prior to such recordation, all amounts owed with respect to the applicable Pro Rata Share of the Revolving Facility Commitment shall be owed to the Lender listed in the Register as the owner thereof, and any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is listed in the Register as a Lender shall be conclusive and binding on any subsequent holder, assignee or transferee of the corresponding Pro Rata Share of the Revolving FacilityCommitment.
(e) Each Lender may from time to time grant participations to one or more banks or other financial institutions in or to all or a portion of its rights and/or obligations under this AgreementPro Rata Share of the Commitment; providedPROVIDED, howeverHOWEVER, that (i) such Lender’s 's obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) the participating banks or other financial institutions shall not be a Lender Lenders hereunder for any purpose exceptEXCEPT, if the participation agreement so provides, for the purposes of Sections 3.53.6, 3.63.7, 11.11 and 11.21 11.22 but only to the extent that the cost of such benefits to Borrower the Borrowers does not exceed the cost which Borrower the Borrowers would have incurred in respect of the such Lender granting such participation absent the participation, (iv) Borrowerthe Borrowers, the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection connec tion with such Lender’s 's rights and obligations under this Agreement, (v) the participation interest shall be expressed as a percentage of the granting Lender’s 's Pro Rata Share of the Revolving Facility Commitment as it then exists and shall not restrict an increase in the Revolving Facility (or the aggregate Commitments pertaining thereto)Commitment, or in the granting Lender’s rights and obligations hereunder's Pro Rata Share of the Commitment, so long as the amount of the participation interest is not affected thereby and (vi) the consent of the holder of such participation interest shall not be required for amendments or waivers of provisions of the Loan Documents other than OTHER THAN those which (A) extend any Amortization Date, any applicable the Maturity Date or any other date upon which any payment of money is due to the Lenders, (B) reduce the rate of interest on the Notes, any fee or any other monetary amount payable to the Lenders, (C) reduce the amount of any installment of principal due under the Notes, or (D) release any Guarantor Subsidiary Guaranty, or (E) release any Collateral from its Guaranty.
(f) Borrower agrees that upon the occurrence and during Lien of the continuance Pledge Agreement, except if such release of Collateral occurs in connection with a Disposition permitted under Section 6.2, in which case such release shall not require the consent of any Event of Default, each Lender shall be entitled to assign its rights hereunder and under the Loan Documents, Lenders or grant of any holder of a participation interests in its rights under this Agreement and the Loan Documents, to any Person, in whole or in any part thereof, notwithstanding any provisions contained herein (including those set forth in subsection (b) above) or in any other Loan Document to the contrary, except that, other than (i) assignments by a Lender to an Affiliate of such Lender or to another Lender or (ii) pledges described interest in the last sentence of subsection (a) above, no assignment shall be made without the approval of the Administrative AgentCommitments.
Appears in 1 contract
Binding Effect; Assignment. (a) Neither this Agreement nor any of the rights, interests or obligations hereunder shall be assigned by either of the parties hereto without the prior written consent of the other party, and any purported assignment without such consent shall be void, except that (i) either party may assign any and all of its rights and remedies and delegate its obligations under this Agreement to an affiliate without the consent of the other party as long as such affiliate agrees in writing to be bound by the terms of this Agreement and (ii) Buyer may grant a security interest in its rights under this Agreement to Fleet National Bank, as administrative agent (the "Agent"), in connection with the financing of the transactions contemplated by this Agreement (although receipt of such financing shall not be deemed to be a condition to closing hereunder); provided, that the Agent will not be entitled to exercise any rights granted to Buyer in connection with the transactions contemplated by this Agreement unless an "Event of Default" under the relevant financing documents has occurred or been declared and is continuing. By agreeing to the granting of a security interest in this Agreement to the Agent in connection with the financing of the transactions contemplated by this Agreement, Seller does not incur any obligations to the Agent Bank those set forth herein or therein or agree to grant the Agent any additional rights herein; provided, further, any foreclosure on the assets concerned will be deemed a Change of Control with respect to Buyer as set forth in Section 14(c) of the Mailing Agreement. No assignment or delegation shall relieve the assigning or delegating party hereto of its obligations hereunder.
(b) This Agreement and the other Loan Documents to which Borrower is a Party will shall be binding upon and inure to the benefit of Borrower, the Administrative Agent, each of the Lenders, parties hereto and their respective permitted successors and assigns, except that Borrower may not assign its rights hereunder or thereunder or any interest herein or therein without the prior written consent of all the Lenders. Each Lender represents that it is not acquiring its Note with a view to the distribution thereof within the meaning of the Securities Act of 1933, as amended (subject to any requirement that disposition of such Note must be within the control of such Lender). Any Lender may at any time pledge its Note or any other instrument evidencing its rights as a Lender under this Agreement to a Federal Reserve Bank, but no such pledge shall release that Lender from its obligations hereunder or grant to such Federal Reserve Bank the rights of a Lender hereunder absent foreclosure of such pledge.
(b) From time to time following the Closing Date, each Lender may assign to one or more Eligible Assignees all or any portion of its rights and obligations under this Agreement (including all or a portion of its Commitment, the Advances owing to it and the Note or Notes held by it); provided that, subject to subsection (f) below, (i) such Eligible Assignee, if not then a Lender or an Affiliate of the assigning Lender, shall be approved by the Administrative Agent and Borrower (neither of which approvals shall be unreasonably withheld or delayed), (ii) such assignment shall be evidenced by an Assignment and Acceptance, a copy of which shall be furnished to the Administrative Agent as hereinbelow provided, (iii) except in the case of an assignment to an Affiliate of the assigning Lender, to another Lender or of the entire remaining rights and obligations of the assigning Lender under this Agreement, the assignment shall not assign a portion of such assigning Lender’s Commitments and/or Advances owing to such assigning Lender that is equivalent to less than $3,000,000, and (iv) the effective date of any such assignment shall be as specified in the Assignment and Acceptance, but not earlier than the date which is five (5) Banking Days after the date the Administrative Agent has received the Assignment and Acceptance. Upon the effective date of such Assignment and Acceptance, the Eligible Assignee named therein shall be a Lender for all purposes of this Agreement, with the Commitments and/or Advances therein set forth and, to the extent of such Commitments and/or Advances, the assigning Lender shall be released from its further obligations under this Agreement. Borrower agrees that it shall execute and deliver (against delivery by the assigning Lender to Borrower of such Lender’s Notes) to such assignee Lender, Notes evidencing that assignee Lender’s Commitments and/or Advances, and to the assigning Lender, Notes evidencing the remaining balance of the Commitments and/or Advances retained by the assigning Lender.
(c) By executing and delivering an Assignment and Acceptance, the Eligible Assignee thereunder acknowledges and agrees that: (i) other than the representation and warranty that it is the legal and beneficial owner of the rights and obligations hereunder being assigned thereby free and clear of any adverse claim, the assigning Lender has made 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 or sufficiency of this Agreement or any other Loan Document; (ii) the assigning Lender has made no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance by Borrower of the Obligations; (iii) it has received a copy of this Agreement, together with copies of the most recent financial statements delivered pursuant to Section 7.1 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) it will, independently and without reliance upon the Administrative Agent or any Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) it appoints and authorizes the Administrative Agent to take such action and to exercise such powers under this Agreement as are delegated to the Administrative Agent by this Agreement; and (vi) 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.
(d) The Administrative Agent shall maintain at the Administrative Agent’s Office a copy of each Assignment and Acceptance delivered to it and a register (the “Register”) of the names and address of each of the Lenders and the Pro Rata Share of the Commitments held by each Lender, giving effect to each Assignment and Acceptance. The Register shall be available during normal business hours for inspection by Borrower or any Lender upon reasonable prior notice to the Administrative Agent. After receipt of a completed Assignment and Acceptance executed by any Lender and an Eligible Assignee, and receipt of an assignment fee of $3,500 from such Lender or Eligible Assignee, the Administrative Agent shall, promptly following the effective date thereof, provide to Borrower and the Lenders a revised Schedule 1.1 giving effect thereto. Borrower, the Administrative Agent and the Lenders shall deem and treat the Persons listed as Lenders in the Register as the holders and owners of the Pro Rata Shares of the Revolving Facility listed therein for all purposes hereof, and no assignment or transfer of any Lender’s rights and obligations hereunder shall be effective, in each case unless and until an Assignment and Acceptance effecting the assignment or transfer thereof shall have been accepted by the Administrative Agent and recorded in the Register as provided above. Prior to such recordation, all amounts owed with respect to the applicable Pro Rata Share of the Revolving Facility shall be owed to the Lender listed in the Register as the owner thereof, and any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is listed in the Register as a Lender shall be conclusive and binding on any subsequent holder, assignee or transferee of the corresponding Pro Rata Share of the Revolving Facility.
(e) Each Lender may from time to time grant participations to one or more banks or other financial institutions in or to all or a portion of its rights and/or obligations under this Agreement; provided, however, that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) the participating banks or other financial institutions shall not be a Lender hereunder for any purpose except, if the participation agreement so provides, for the purposes of Sections 3.5, 3.6, 11.11 and 11.21 but only to the extent that the cost of such benefits to Borrower does not exceed the cost which Borrower would have incurred in respect of the Lender granting such participation absent the participation, (iv) Borrower, the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement, (v) the participation interest shall be expressed as a percentage of the granting Lender’s Pro Rata Share of the Revolving Facility as it then exists and shall not restrict an increase in the Revolving Facility (or the aggregate Commitments pertaining thereto), or in the granting Lender’s rights and obligations hereunder, so long as the amount of the participation interest is not affected thereby and (vi) the consent of the holder of such participation interest shall not be required for amendments or waivers of provisions of the Loan Documents other than those which (A) extend any Amortization Date, any applicable Maturity Date or any other date upon which any payment of money is due to the Lenders, (B) reduce the rate of interest on the Notes, any fee or any other monetary amount payable to the Lenders, (C) reduce the amount of any installment of principal due under the Notes, or (D) release any Guarantor from its Guaranty.
(f) Borrower agrees that upon the occurrence and during the continuance of any Event of Default, each Lender shall be entitled to assign its rights hereunder and under the Loan Documents, or grant participation interests in its rights under this Agreement and the Loan Documents, to any Person, in whole or in any part thereof, notwithstanding any provisions contained herein (including those set forth in subsection (b) above) or in any other Loan Document to the contrary, except that, other than (i) assignments by a Lender to an Affiliate of such Lender or to another Lender or (ii) pledges described in the last sentence of subsection (a) above, no assignment shall be made without the approval of the Administrative Agent.
Appears in 1 contract
Binding Effect; Assignment. (a) This Agreement and the other Loan Documents to which Borrower is a Party will be binding upon various rights and obligations arising hereunder shall inure to the benefit of Borrower, the Administrative Agent, each of the Lenders, and be binding upon Sellers and Partner and their respective successors and permitted assigns.
(a) Neither party may assign any right under this Agreement, and any purported assignment will be null and void and a breach of this Agreement, except that Borrower for the following:
(i) Either party may not assign some or all of its rights hereunder and/or delegate some or thereunder or any interest herein or therein without all of its obligations under this Agreement with the express prior written consent of the other party, which may be granted or withheld in the other party's sole discretion.
(ii) Either party may assign all of its rights indivisibly to an affiliate. The affiliate in question must agree in writing to comply with the assigning party's obligations under, and to be bound by, this Agreement and the other agreements contemplated herein.
(iii) Either party may assign all of its rights indivisibly in connection with a sale or other disposition of substantially all the Lenders. Each Lender represents that it is not acquiring its Note with a view assets of the assigning party's business relating to the distribution thereof within Licensed Software to a single acquiring person or entity. The acquiring person or entity must agree in writing to comply with the meaning of the Securities Act of 1933assigning party's obligations under, as amended (subject and to any requirement that disposition of such Note must be within the control of such Lender). Any Lender may at any time pledge its Note or any other instrument evidencing its rights as a Lender under bound by, this Agreement to a Federal Reserve Bank, but no such pledge shall release that Lender from its obligations hereunder or grant to such Federal Reserve Bank and the rights of a Lender hereunder absent foreclosure of such pledgeother agreements contemplated herein.
(b) From time to time Notwithstanding the foregoing, any of the following the Closing Date, each Lender may assign to one occurrences shall not be deemed an assignment or more Eligible Assignees all otherwise in violation of this Section 10.3 or any portion of its rights and obligations under this Agreement (including all or a portion of its Commitment, the Advances owing to it and the Note or Notes held by it); provided that, subject to subsection (f) below, Agreement:
(i) an occurrence which involves a reorganization or restructuring of either party or a conversion by either party into another form of legal entity (such Eligible Assignee, as to or from a limited liability company) if not then a Lender or an Affiliate following such occurrence more than fifty percent (50%) of the assigning Lender, shall be approved then outstanding shares or membership interests of such party are owned directly or indirectly by all or substantially all of the Administrative Agent and Borrower (neither individuals or entities who were beneficial owners of which approvals shall be unreasonably withheld or delayed), such party immediately prior to such occurrence;
(ii) there is a transfer of shares or securities pursuant to a contractual obligation with an investor, as a result of the exercise of rights by such assignment shall be evidenced by an Assignment investor pursuant to any agreement valid and Acceptance, a copy existing as of which shall be furnished to the Administrative Agent as hereinbelow provided, Time of Closing; or
(iii) except any transactions in the case ordinary course of an assignment business resulting from or related to an Affiliate of the assigning Lenderinitial public offering, to another Lender or of the entire remaining rights and obligations of the assigning Lender under this Agreement, the assignment shall not assign a portion of such assigning Lender’s Commitments and/or Advances owing to such assigning Lender that is equivalent to less than $3,000,000, and (iv) the effective date of any such assignment shall be as specified in the Assignment and Acceptance, but not earlier than the date which is five (5) Banking Days after the date the Administrative Agent has received the Assignment and Acceptance. Upon the effective date of such Assignment and Acceptance, the Eligible Assignee named therein shall be a Lender for all purposes of this Agreement, with the Commitments and/or Advances therein set forth and, to the extent of such Commitments and/or Advances, the assigning Lender shall be released from its further obligations under this Agreement. Borrower agrees that it shall execute and deliver (against delivery by the assigning Lender to Borrower of such Lender’s Notes) to such assignee Lender, Notes evidencing that assignee Lender’s Commitments and/or Advances, and to the assigning Lender, Notes evidencing the remaining balance of the Commitments and/or Advances retained by the assigning Lender.
(c) By executing and delivering an Assignment and Acceptance, the Eligible Assignee thereunder acknowledges and agrees that: (i) other than the representation and warranty that it is the legal and beneficial owner of the rights and obligations hereunder being assigned thereby free and clear of any adverse claim, the assigning Lender has made 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 or sufficiency free trade of this Agreement or any other Loan Document; (ii) the assigning Lender has made no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance by Borrower of the Obligations; (iii) it has received a copy of this Agreement, together with copies of the most recent financial statements delivered pursuant to Section 7.1 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) it will, independently and without reliance upon the Administrative Agent or any Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) it appoints and authorizes the Administrative Agent to take such action and to exercise such powers under this Agreement as are delegated to the Administrative Agent by this Agreement; and (vi) 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.
(d) The Administrative Agent shall maintain at the Administrative Agent’s Office a copy of each Assignment and Acceptance delivered to it and a register (the “Register”) of the names and address of each of the Lenders and the Pro Rata Share of the Commitments held by each Lender, giving effect to each Assignment and Acceptance. The Register shall be available during normal business hours for inspection by Borrower or any Lender upon reasonable prior notice to the Administrative Agent. After receipt of a completed Assignment and Acceptance executed by any Lender and an Eligible Assignee, and receipt of an assignment fee of $3,500 from such Lender or Eligible Assignee, the Administrative Agent shall, promptly following the effective date thereof, provide to Borrower and the Lenders a revised Schedule 1.1 giving effect thereto. Borrower, the Administrative Agent and the Lenders shall deem and treat the Persons listed as Lenders in the Register as the holders and owners of the Pro Rata Shares of the Revolving Facility listed therein for all purposes hereof, and no assignment or transfer of any Lender’s rights and obligations hereunder shall be effective, in each case unless and until an Assignment and Acceptance effecting the assignment or transfer thereof shall have been accepted by the Administrative Agent and recorded in the Register as provided above. Prior to such recordation, all amounts owed with respect to the applicable Pro Rata Share of the Revolving Facility shall be owed to the Lender listed in the Register as the owner thereof, and any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is listed in the Register as a Lender shall be conclusive and binding shares on any subsequent holder, assignee or transferee of the corresponding Pro Rata Share of the Revolving Facilitypublic market.
(e) Each Lender may from time to time grant participations to one or more banks or other financial institutions in or to all or a portion of its rights and/or obligations under this Agreement; provided, however, that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) the participating banks or other financial institutions shall not be a Lender hereunder for any purpose except, if the participation agreement so provides, for the purposes of Sections 3.5, 3.6, 11.11 and 11.21 but only to the extent that the cost of such benefits to Borrower does not exceed the cost which Borrower would have incurred in respect of the Lender granting such participation absent the participation, (iv) Borrower, the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement, (v) the participation interest shall be expressed as a percentage of the granting Lender’s Pro Rata Share of the Revolving Facility as it then exists and shall not restrict an increase in the Revolving Facility (or the aggregate Commitments pertaining thereto), or in the granting Lender’s rights and obligations hereunder, so long as the amount of the participation interest is not affected thereby and (vi) the consent of the holder of such participation interest shall not be required for amendments or waivers of provisions of the Loan Documents other than those which (A) extend any Amortization Date, any applicable Maturity Date or any other date upon which any payment of money is due to the Lenders, (B) reduce the rate of interest on the Notes, any fee or any other monetary amount payable to the Lenders, (C) reduce the amount of any installment of principal due under the Notes, or (D) release any Guarantor from its Guaranty.
(f) Borrower agrees that upon the occurrence and during the continuance of any Event of Default, each Lender shall be entitled to assign its rights hereunder and under the Loan Documents, or grant participation interests in its rights under this Agreement and the Loan Documents, to any Person, in whole or in any part thereof, notwithstanding any provisions contained herein (including those set forth in subsection (b) above) or in any other Loan Document to the contrary, except that, other than (i) assignments by a Lender to an Affiliate of such Lender or to another Lender or (ii) pledges described in the last sentence of subsection (a) above, no assignment shall be made without the approval of the Administrative Agent.
Appears in 1 contract
Binding Effect; Assignment. (a) This Agreement and the other Loan Documents to which Borrower is a Party party will be binding upon and inure to the benefit of Borrower, the Administrative Agent, each of the Lenders, Lenders and their respective successors and assigns, except that Borrower may not not, except as permitted by Section 7.03, assign its rights hereunder or thereunder or any interest herein or therein without the prior written consent of all the Lenders. Each Lender represents that it is not acquiring its Note with a view to the distribution thereof within the meaning of the Securities Act of 1933, as amended (subject to Lenders and any requirement that disposition of such Note must attempted assignment shall be within the control of such Lender)void. Any Lender may at any time pledge its Note or any other instrument evidencing its rights as a Lender under this Agreement to a Federal Reserve BankBank or, if such Lender is a fund, to any trustee or to any other representative of holders of obligations owed or securities issued by such fund as security for such obligations or securities, but no such pledge shall release that such Lender from its obligations hereunder or grant to such Federal Reserve Bank or trust or other representative the rights of a Lender hereunder absent foreclosure of such pledge, and any transfer to any Person upon the enforcement of such pledge shall be subject to this Section 10.04.
(b) From time to time following the Closing Date, each Lender may assign to one or more Eligible Assignees banks or other financial institutions, each having a combined capital and surplus of at least $250,000,000 (such qualifications being subject to waiver by Borrower and Administrative Agent), all or any portion of its rights and obligations under this Agreement (including all or a portion Commitment and/or Extensions of its Commitment, the Advances owing to it and the Note or Notes held by it)Credit; provided that, subject to subsection (f) below, that (i) such Eligible Assigneeassignment, if not then to a Lender or an Affiliate of the assigning Lender, shall be approved by the Administrative Agent and Borrower consented to (neither of which approvals consents shall not be unreasonably withheld or delayed)withheld) by Borrower at all times other than during the existence of an Event of Default and by Administrative Agent, (ii) such assignment shall be evidenced by an Assignment and Acceptance, a copy of which a duly signed and completed Assignment and Acceptance shall be furnished delivered to the Administrative Agent as hereinbelow providedAgent, (iii) except in the case of an assignment (A) to an Affiliate of the assigning Lender, Lender or to another Lender or (B) of the entire remaining rights and obligations Commitment of the assigning Lender under this AgreementLender, the assignment portion of the Commitment assigned shall not assign a portion of such assigning Lender’s Commitments and/or Advances owing to such assigning Lender that is equivalent to be less than $3,000,000the Minimum Amount therefor, and (iv) the effective date of any such assignment shall be as specified in the Assignment and Acceptance, but not earlier than the date which is five (5) Banking Business Days after the date the Administrative Agent has received the Assignment and Acceptance. Upon obtaining any consent required as set forth in the effective date prior sentence, any forms required by Section 10.20 and payment of such Assignment and Acceptancethe requisite fee described below, the Eligible Assignee assignee named therein shall be a Lender for all purposes of this Agreement, with the Commitments and/or Advances therein set forth and, Agreement to the extent of the Assigned Interest (as defined in such Commitments and/or AdvancesAssignment and Acceptance), and, except for rights and obligations which by their terms survive termination of any Commitments, the assigning Lender shall be released from its any further obligations under this AgreementAgreement to the extent of such Assigned Interest. Upon request, Borrower agrees that it shall execute and deliver (against delivery by new or replacement Notes to the assigning Lender and the assignee Lender to Borrower of such Lender’s Notes) evidence Loans made by them. Administrative Agent's consent to such assignee Lender, Notes evidencing that assignee Lender’s Commitments and/or Advances, any assignment shall not be deemed to constitute any representation or warranty by any Administrative Agent-Related Person as to any matter. Administrative Agent shall record the information contained in the Assignment and to Acceptance in the assigning Lender, Notes evidencing the remaining balance of the Commitments and/or Advances retained by the assigning LenderRegister.
(c) By executing and delivering an Assignment and Acceptance, the Eligible Assignee thereunder acknowledges and agrees that: (i) other than the representation and warranty that it is the legal and beneficial owner of the rights and obligations hereunder being assigned thereby free and clear of any adverse claim, the assigning Lender has made 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 or sufficiency of this Agreement or any other Loan Document; (ii) the assigning Lender has made no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance by Borrower of the Obligations; (iii) it has received a copy of this Agreement, together with copies of the most recent financial statements delivered pursuant to Section 7.1 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) it will, independently and without reliance upon the Administrative Agent or any Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) it appoints and authorizes the Administrative Agent to take such action and to exercise such powers under this Agreement as are delegated to the Administrative Agent by this Agreement; and (vi) 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.
(d) The Administrative Agent shall maintain at the Administrative Agent’s Office a copy of each Assignment and Acceptance delivered to it and a register (the “Register”) of the names and address of each of the Lenders and the Pro Rata Share of the Commitments held by each Lender, giving effect to each Assignment and Acceptance. The Register shall be available during normal business hours for inspection by Borrower or any Lender upon reasonable prior notice to the Administrative Agent. After receipt of a completed Assignment and Acceptance executed by any Lender and an Eligible AssigneeAcceptance, and receipt of an assignment fee of $3,500 from such assignee and/or such assigning Lender or Eligible Assignee(including in the case of assignments to Affiliates of assigning Lenders), the Administrative Agent shall, promptly following the effective date thereof, provide to Borrower and the Lenders a revised Schedule 1.1 2.01 giving effect thereto. Borrower, the Administrative Agent and the Lenders shall deem and treat the Persons listed as Lenders in the Register as the holders and owners of the Pro Rata Shares of the Revolving Facility listed therein for all purposes hereof, and no assignment or transfer of any Lender’s rights and obligations hereunder shall be effective, in each case unless and until an Assignment and Acceptance effecting the assignment or transfer thereof shall have been accepted by the Administrative Agent and recorded in the Register as provided above. Prior to such recordation, all amounts owed with respect to the applicable Pro Rata Share of the Revolving Facility shall be owed to the Lender listed in the Register as the owner thereof, and any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is listed in the Register as a Lender shall be conclusive and binding on any subsequent holder, assignee or transferee of the corresponding Pro Rata Share of the Revolving Facility.
(ed) Each Lender may from time to time time, without the consent of any other Person, grant participations to one or more banks or other financial institutions Persons (including another Lender) in or to all or a any portion of its rights Commitment and/or obligations under this AgreementExtensions of Credit; provided, however, that (i) such Lender’s 's obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) the participating banks bank or other financial institutions institution shall not be a Lender hereunder for any purpose except, if the participation agreement so provides, for the purposes of Sections 3.5, 3.6, 11.11 and 11.21 the increased cost provisions of Section 3 (but only to the extent that the cost of such benefits to Borrower does not exceed the cost which Borrower would have incurred in respect of the such Lender granting such participation absent the participation) and for purposes of Section 10.06, (iv) Borrower, the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s 's rights and obligations under this Agreement, and (v) the participation interest shall be expressed as a percentage of the granting Lender’s Pro Rata Share of the Revolving Facility as it then exists and shall not restrict an increase in the Revolving Facility (or the aggregate Commitments pertaining thereto), or in the granting Lender’s rights and obligations hereunder, so long as the amount of the participation interest is not affected thereby and (vi) the consent of the holder of such participation interest shall not be required for amendments or waivers of provisions of the Loan Documents other than those Documents; provided however, that the assigning Lender may, in any agreement with a participant, give such participant the right to consent (as between the assigning Lender and such participant) to any matter which (A) extend any Amortization Date, any applicable extends the Maturity Date as to such participant or any other date upon which any payment of money is due to the Lenderssuch participant, (B) reduce reduces the rate of interest on the Notes, owing to such participant or any fee or any other monetary amount payable owing to the Lenderssuch participant, or (C) reduce reduces the amount of any installment scheduled payment of principal due under owing to such participant. Any Lender that sells a participation to any Person that is a "foreign corporation, partnership or trust" within the Notes, meaning of the Code shall include in its participation agreement with such Person a covenant by such Person that such Person will comply with the provisions of Section 10.20 as if such Person were a Lender and provide that Administrative Agent and Borrower shall be third party beneficiaries of such covenant. Each Lender that sells or grants a participation shall (Da) release any Guarantor withhold or deduct from its Guaranty.
(f) Borrower agrees that upon each payment to the occurrence and during holder of such participation the continuance amount of any Event of Defaulttax required under applicable law to be withheld or deducted from such payment and not withheld or deducted therefrom by Borrower or Administrative Agent, each Lender shall be entitled to assign its rights hereunder and under the Loan Documents, or grant participation interests in its rights under this Agreement and the Loan Documents, to any Person, in whole or in any part thereof, notwithstanding any provisions contained herein (including those set forth in subsection (b) above) pay the tax so withheld or in any other Loan Document deducted by it to the contraryappropriate taxing authority in accordance with applicable law and (c) indemnify Borrower and Administrative Agent for any losses, except that, other than (i) assignments by cost and expenses that they may incur as a Lender result of any failure to an Affiliate of so withhold or deduct and pay such Lender or to another Lender or (ii) pledges described in the last sentence of subsection (a) above, no assignment shall be made without the approval of the Administrative Agenttax.
Appears in 1 contract
Binding Effect; Assignment. (a) This Agreement and the other Loan Documents to which Borrower is a Party will shall be binding upon and shall inure to the benefit of Borrower, the Administrative Agent, each of the Lenders, parties hereto and thereto and their respective successors and assigns, except that subject to the other restrictions contained in this Section 10.7.
(b) Borrower may not assign its rights hereunder or thereunder or any interest herein or therein without the prior written consent of all the Lenders. Each Lender represents that it is not acquiring its Note with a view to the distribution thereof within the meaning of the Securities Act of 1933, as amended (subject to any requirement that disposition of such Note must be within the control of such Lender)Administrative Agent. Any Lender may at assignment by Borrower without the prior written consent of Administrative Agent shall be void; provided that no Person other than Administrative Agent and the Lenders shall have any time pledge its Note or any other instrument evidencing its rights as a Lender under this Agreement to a Federal Reserve Bank, but no such pledge shall release that Lender from its obligations hereunder or grant to such Federal Reserve Bank the rights of a Lender hereunder absent foreclosure of such pledgesentence.
(bc) From time No Lender shall have the right to time following the Closing Date, each Lender may assign to one or more Eligible Assignees all or any portion of its rights and obligations under this Agreement (including all or a portion of its Commitmentrights or delegate any of its obligations under the Loan Documents without the express prior written consent of Administrative Agent, which consent may be granted or withheld by Administrative Agent in its sole, but reasonable, discretion. In connection with exercise of its discretion, Administrative Agent shall have the right to consider the number of Lenders and the size of the Pro Rata Shares that would result from a proposed assignment, as well as the financial strength and sophistication of the proposed assignee. In any event, the Advances owing to it and the Note or Notes held by it); provided that, subject to subsection (f) below, proposed assignee must be a commercial bank that is either (i) such Eligible Assignee, if not then a Lender or an Affiliate organized under the laws of the assigning LenderUnited States of America or any state thereof, shall be approved by the Administrative Agent and Borrower (neither of which approvals shall be unreasonably withheld or delayed), (ii) organized under the laws of any other nation provided that such assignment shall be evidenced by an Assignment bank has a branch or agency located within the United States of America. If and Acceptance, a copy of which shall be furnished to the extent a Lender receives the consent of Administrative Agent as hereinbelow providedto make such an assignment, (iii) except in Borrower shall execute new Notes to reflect the case of an assignment to an Affiliate changed Pro Rata Shares of the affected Lenders, and the assigning LenderLender and the assignee shall execute such documents to evidence the assignment as Administrative Agent shall reasonably require, to another Lender or including an assumption by the assignee of the entire remaining rights and obligations of the assigning Lender under this Agreement, the assignment shall not assign a portion of such assigning Lender’s Commitments and/or Advances owing to such assigning Lender that is equivalent to less than $3,000,000, and (iv) the effective date of any such assignment shall be as specified in the Assignment and Acceptance, but not earlier than the date which is five (5) Banking Days after the date the Administrative Agent has received the Assignment and Acceptance. Upon the effective date of such Assignment and Acceptance, the Eligible Assignee named therein shall be a Lender for all purposes of this Agreement, with the Commitments and/or Advances therein set forth and, to the extent of such Commitments and/or Advances, the assigning Lender shall be released from its further obligations under this Agreement. Borrower agrees that it shall execute and deliver (against delivery by the assigning Lender to Borrower of such Lender’s Notes) to such assignee Lender, Notes evidencing that assignee Lender’s Commitments and/or Advances, and to the assigning Lender, Notes evidencing the remaining balance of the Commitments and/or Advances retained by the assigning Lender.
(c) By executing and delivering an Assignment and Acceptance, the Eligible Assignee thereunder acknowledges and agrees that: (i) other than the representation and warranty that it is the legal and beneficial owner of the rights and obligations hereunder being assigned thereby free and clear of any adverse claim, the assigning Lender has made 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 or sufficiency of this Agreement or any other Loan Document; (ii) the assigning Lender has made no representation or warranty and assumes no responsibility with respect to the financial condition portion of Borrower or the performance by Borrower of the Obligations; (iii) it has received a copy of this Agreement, together with copies of the most recent financial statements delivered pursuant to Section 7.1 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) it will, independently and without reliance upon the Administrative Agent or any Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) it appoints and authorizes the Administrative Agent to take such action and to exercise such powers under this Agreement as are delegated to the Administrative Agent by this Agreement; and (vi) 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.
(d) The Administrative Agent shall maintain at the Administrative Agent’s Office a copy of each Assignment and Acceptance delivered to it and a register (the “Register”) of the names and address of each of the Lenders and the Pro Rata Share of the Commitments held by each Lender, giving effect to each Assignment Total Commitment and Acceptance. The Register shall be available during normal business hours for inspection by Borrower or any Lender upon reasonable prior notice to the Administrative Agent. After receipt of a completed Assignment outstanding Advances and Acceptance executed by any Lender and an Eligible Assignee, and receipt of an assignment fee of $3,500 from such Lender or Eligible Assignee, the Administrative Agent shallAdvances, promptly following a relinquishment of rights of the effective date thereof, provide assigning Lender with respect to Borrower such portion of the Pro Rata Share of the Total Commitment and the Lenders a revised Schedule 1.1 giving effect thereto. Borrower, the outstanding Advances and Administrative Agent Advances and the Lenders shall deem and treat the Persons listed as Lenders in the Register as the holders and owners a confirmation of the Pro Rata Shares of the Revolving Facility listed therein for assigning Lender and the assignee. Promptly following satisfaction of the foregoing conditions, Administrative Agent shall give notice to Borrower and all purposes hereof, and no assignment or transfer of any Lender’s rights and obligations hereunder shall be effective, in each case unless and until an Assignment and Acceptance effecting the Lenders of the effectiveness of the assignment or transfer thereof shall have been accepted by and of the Administrative Agent and recorded in the Register as provided above. Prior to such recordation, all amounts owed with respect to the applicable revised Pro Rata Share Shares of the Revolving Facility shall be owed to the Lender listed in the Register as the owner thereof, and any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is listed in the Register as a Lender shall be conclusive and binding on any subsequent holder, assignee or transferee of the corresponding Pro Rata Share of the Revolving Facility.
(e) Each Lender may from time to time grant participations to one or more banks or other financial institutions in or to all or a portion of its rights and/or obligations under this Agreement; provided, however, that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) the participating banks or other financial institutions Lenders. Borrower shall not be a obligated to pay or reimburse Administrative Agent or any Lender hereunder (including any assigning Lender or assignee Lender) for any purpose except, if the participation agreement so provides, for the purposes of Sections 3.5, 3.6, 11.11 and 11.21 but only to the extent that the cost of such benefits to Borrower does not exceed the cost which Borrower would have costs incurred in respect of the Lender granting such participation absent the participation, (iv) Borrower, the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement, (v) the participation interest shall be expressed as a percentage of the granting Lender’s Pro Rata Share of the Revolving Facility as it then exists and shall not restrict an increase in the Revolving Facility (any assignment or the aggregate Commitments pertaining thereto), or in the granting Lender’s rights and obligations hereunder, so long as the amount of the participation interest is not affected thereby and (vi) the consent of the holder of such participation interest shall not be required for amendments or waivers of provisions of the Loan Documents other than those which (A) extend any Amortization Date, any applicable Maturity Date or any other date upon which any payment of money is due to the Lenders, (B) reduce the rate of interest on the Notes, any fee or any other monetary amount payable to the Lenders, (C) reduce the amount of any installment of principal due under the Notes, or (D) release any Guarantor from its Guaranty.
(f) Borrower agrees that upon the occurrence and during the continuance of any Event of Default, each Lender shall be entitled to assign its rights hereunder and under the Loan Documents, or grant participation interests in its rights under this Agreement and the Loan Documents, to any Person, in whole or in any part thereof, notwithstanding any provisions contained herein (including those set forth in subsection (b) above) or in any other Loan Document to the contrary, except that, other than (i) assignments prospective assignment by a Lender to an Affiliate of such Lender or to another Lender or (ii) pledges described in the last sentence of subsection (a) above, no assignment shall be made without the approval of the Administrative AgentLender.
Appears in 1 contract
Binding Effect; Assignment. (a) This Agreement and the other Loan Documents to which Borrower is a Party party will be binding upon and inure to the benefit of Borrower, the Lenders and Administrative Agent, each of the Lenders, Agent and their respective successors and assigns, except that that, Borrower may not assign its rights hereunder or thereunder or any interest herein or therein without the prior written consent of all the Lenders. Each Lender represents that it is not acquiring its Note with a view to the distribution thereof within the meaning of the Securities Act of 1933, as amended (subject to Lenders and any requirement that disposition of such Note must attempted assignment shall be within the control of such Lender)void. Any Lender may at any time pledge its Note or any other instrument evidencing its rights as a Lender under this Agreement to a Federal Reserve Bank, but no such pledge shall release that each such Lender from its obligations hereunder or grant to such Federal Reserve Bank the rights of a Lender hereunder absent foreclosure of such pledge.
(b) From time to time following the Closing Date, each Lender may assign to one or more Eligible Assignees all or any portion of its rights and obligations under this Agreement (including all or a portion Commitment and/or Extensions of its Commitment, the Advances owing to it and the Note or Notes held by it)Credit; provided that, subject to subsection (f) below, that (i) such Eligible Assigneeassignment, if not then to a Lender or an Affiliate of the assigning Lender, shall be approved consented to by Borrower at all times other than during the existence of a Default or Event of Default and by Administrative Agent and Issuing Lender (which approval of Borrower (neither of which approvals shall not be unreasonably withheld or delayedwithheld), (ii) such assignment shall be evidenced by an Assignment and Acceptance, a copy of which a duly signed and completed Assignment and Acceptance shall be furnished delivered to the Administrative Agent as hereinbelow providedAgent, (iii) except in the case of an assignment (A) to an Affiliate of the assigning Lender, Lender or to another Lender or (B) of the entire remaining rights and obligations Commitment of the assigning Lender under this AgreementLender, the assignment portion of the Commitment assigned shall not assign a portion of such assigning Lender’s Commitments and/or Advances owing to such assigning Lender that is equivalent to be less than $3,000,0005,000,000, and (iv) the effective date of any such assignment shall be as specified in the Assignment and Acceptance, but not earlier than the date which is five (5) Banking Business Days after the date the Administrative Agent has received the Assignment and Acceptance. Upon any required consent by Administrative Agent, Issuing Lender and Borrower to such assignment and payment of the effective date of such Assignment and Acceptancerequisite fee described below, the Eligible Assignee assignee named therein shall be a Lender for all purposes of this Agreement, with the Commitments and/or Advances Pro Rata Share therein set forth and, to the extent of such Commitments and/or AdvancesPro Rata Share, the assigning Lender shall be released from its further obligations under this Agreement. Borrower agrees that it shall execute and deliver upon request (against delivery by the assigning Lender to Borrower of the Note, if any, previously issued to such assigning Lender’s Notes, or, if any such Note is lost or destroyed, an affidavit as to such fact and a lost note indemnity from such assigning Lender with respect to such Note) to such assignee Lender, one or more Notes evidencing that such assignee Lender’s Commitments and/or AdvancesLoans, and to the assigning LenderLender if requested, one or more Notes evidencing the remaining balance of the Commitments and/or Advances Loans under any Commitment retained by the assigning Lender. Administrative Agent’s consent to any assignment shall not be deemed to constitute any representation or warranty by any Administrative Agent-Related Person as to any matter. For purposes hereof, each mutual fund that is an Affiliate of a Lender shall be deemed to be a single Eligible Assignee, whether or not such fund is managed by the same fund manager as other mutual funds that are Affiliates of the same Lender.
(c) By executing and delivering an Assignment and Acceptance, the Eligible Assignee thereunder acknowledges and agrees that: (i) other than the representation and warranty that it is the legal and beneficial owner of the rights and obligations hereunder being assigned thereby free and clear of any adverse claim, the assigning Lender has made 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 or sufficiency of this Agreement or any other Loan Document; (ii) the assigning Lender has made no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance by Borrower of the Obligations; (iii) it has received a copy of this Agreement, together with copies of the most recent financial statements delivered pursuant to Section 7.1 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) it will, independently and without reliance upon the Administrative Agent or any Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) it appoints and authorizes the Administrative Agent to take such action and to exercise such powers under this Agreement as are delegated to the Administrative Agent by this Agreement; and (vi) 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.
(d) The Administrative Agent shall maintain at the Administrative Agent’s Office a copy of each Assignment and Acceptance delivered to it and a register (the “Register”) of the names and address of each of the Lenders and the Pro Rata Share of the Commitments held by each Lender, giving effect to each Assignment and Acceptance. The Register shall be available during normal business hours for inspection by Borrower or any Lender upon reasonable prior notice to the Administrative Agent. After receipt of a completed Assignment and Acceptance executed by any Lender and an Eligible AssigneeAcceptance, and receipt of an assignment fee of $3,500 (unless such fee is waived by the Administrative Agent) from such Lender or Eligible AssigneeAssignee (including in the case of assignments to Affiliates of assigning Lenders), the Administrative Agent shall, promptly following the effective date thereof, provide to Borrower and the Lenders a revised Schedule 1.1 10.2 giving effect thereto. Borrower, the Administrative Agent and the Lenders shall deem and treat the Persons listed as Lenders in the Register as the holders and owners of the Pro Rata Shares of the Revolving Facility listed therein for all purposes hereof, and no assignment or transfer of any Lender’s rights and obligations hereunder shall be effective, in each case unless and until an Assignment and Acceptance effecting the assignment or transfer thereof shall have been accepted by the Administrative Agent and recorded in the Register as provided above. Prior to such recordation, all amounts owed with respect to the applicable Pro Rata Share of the Revolving Facility shall be owed to the Lender listed in the Register as the owner thereof, and any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is listed in the Register as a Lender shall be conclusive and binding on any subsequent holder, assignee or transferee of the corresponding Pro Rata Share of the Revolving Facility.
(ed) Each such Lender may from time to time time, without the consent of any other Person, grant participations to one or more banks or other financial institutions in or to Person (including another Lender) of all or a any portion of its rights and/or obligations under this AgreementPro Rata Share of its Commitment or Extensions of Credit; provided, however, that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) the participating banks or other financial institutions shall not be a Lender hereunder for any purpose except, if the participation agreement so provides, for the purposes of Sections 3.5, 3.6, 11.11 and 11.21 Section 3 (but only to the extent that the cost of such benefits to Borrower does not exceed the cost which Borrower would have incurred in respect of the such Lender granting such participation absent the participation) and subject to Sections 10.5 and 10.6, (iv) Borrower, the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement, (v) the participation interest shall be expressed as a percentage of the granting Lender’s Pro Rata Share of the Revolving Facility as it then exists and agreement shall not restrict an increase in the Revolving Facility (or the aggregate Commitments pertaining thereto)combined Commitments, or in the granting Lender’s rights and obligations hereunderPro Rata Share, so long as the amount of the participation interest is not affected thereby thereby, and (vi) the consent of the holder of such participation interest shall not be required for amendments or waivers of provisions of the Loan Documents other than those Documents; provided, however, that the assigning Lender may, in any agreement with a participant, give such participant the right to consent to any matter which (A) extend any Amortization Date, any applicable extends the Maturity Date as to such participant or any other date upon which any payment of money is due to the Lenderssuch participant, (B) reduce reduces the rate of interest on the Notesowing to such participant, any fee or any other monetary amount payable owing to the Lenderssuch participant, or (C) reduce reduces the amount of any installment of principal due under owing to such participant. Any Lender that sells a participation to any Person that is a “foreign corporation, partnership or trust” within the Notes, or (D) release any Guarantor from meaning of the Code shall include in its Guaranty.
(f) participation agreement with such Person a covenant by such Person that such Person will comply with the provisions of Section 10.22 as if such Person were a Lender and provide that Administrative Agent and Borrower agrees that upon the occurrence and during the continuance of any Event of Default, each Lender shall be entitled to assign its rights hereunder and under the Loan Documents, or grant participation interests in its rights under this Agreement and the Loan Documents, to any Person, in whole or in any part thereof, notwithstanding any provisions contained herein (including those set forth in subsection (b) above) or in any other Loan Document to the contrary, except that, other than (i) assignments by a Lender to an Affiliate third party beneficiaries of such Lender or to another Lender or (ii) pledges described in the last sentence of subsection (a) above, no assignment shall be made without the approval of the Administrative Agentcovenant.
Appears in 1 contract
Binding Effect; Assignment. (a) This Agreement and the other Loan Documents to which Borrower is a Party will be binding upon and inure to the benefit of Borrower, the Administrative Agent, each of the Lenders, and their respective successors and assigns, except that Borrower may not assign its their rights hereunder or thereunder or any interest herein or therein without the prior written consent of all the Lenders. Any attempted assignment by Borrower in contravention of this Section 12.8(a) shall be null and void. Each Lender represents that it is not acquiring its Note Notes with a view to the distribution thereof within the meaning of the Securities Act of 1933, as amended (subject to any requirement that disposition of such Note Notes must be within the control of such Lender). Any Lender may at any time pledge its Note Notes or any other instrument evidencing its rights as a Lender under this Agreement to a Federal Reserve Bank, but no such pledge shall release that Lender from its obligations hereunder or grant to such Federal Reserve Bank the rights of a Lender hereunder absent foreclosure of such pledge.
(b) From time to time following the Closing Date, each Lender may assign to one or more Eligible Assignees all or any portion of its rights and obligations under this Agreement (including all or a portion of its Commitment, the Advances owing to it and the Note or Notes held by it)Pro Rata Share; provided that, subject to subsection (f) below, that (i) such Eligible Assignee, if not then a Lender or an Affiliate of the assigning Lender, shall be approved by each of the Administrative Agent and (if no Event of Default then exists) Borrower (neither of which approvals shall be unreasonably withheld or delayed), (ii) such assignment shall be evidenced by an Assignment and AcceptanceAgreement, a copy of which shall be furnished to the Administrative Agent as hereinbelow provided, (iii) except in the case of an assignment to an Affiliate of the assigning Lender, to another Lender or of the entire remaining rights and obligations Commitments of the assigning Lender under this AgreementLender, the assignment shall not assign a portion Pro Rata Share of such assigning Lender’s the Commitments and/or Advances owing to such assigning Lender that is equivalent to less than $3,000,000, and (iv) the effective date of any such assignment shall be as specified in the Assignment and AcceptanceAgreement, but not earlier than the date which is five (5) Banking Business Days after the date the Administrative Agent has received the Assignment and AcceptanceAgreement. Upon the effective date of such Assignment and AcceptanceAgreement, the Eligible Assignee named therein shall be a Lender for all purposes of this Agreement, with the Commitments and/or Advances Pro Rata Share therein set forth and, to the extent of such Commitments and/or AdvancesPro Rata Share, the assigning Lender shall be released from its further obligations under this Agreement. Borrower agrees that it shall execute and deliver (against delivery by the assigning Lender to Borrower of such Lender’s its relevant Notes) to such assignee Lender, Notes evidencing that assignee Lender’s Commitments and/or Advances's Pro Rata Share, and to the assigning Lender, a Note or Notes evidencing the remaining balance Pro Rata Share of the Commitments and/or Advances Commitments, if any, retained by the assigning Lender.
(c) By executing and delivering an Assignment and AcceptanceAgreement, the Eligible Assignee thereunder acknowledges and agrees that: (i) other than the representation and warranty that it is the legal and beneficial owner of the rights and obligations hereunder Pro Rata Share being assigned thereby free and clear of any adverse claim, the assigning Lender has made 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 or sufficiency of this Agreement or any other Loan Document; (ii) the assigning Lender has made no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance by Borrower of the Obligations; (iii) it has received a copy of this Agreement, together with copies of the most recent financial statements delivered pursuant to Section 7.1 8.1 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and AcceptanceAgreement; (iv) it will, independently and without reliance upon the Administrative Agent or any Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) it appoints and authorizes the Administrative Agent to take such action and to exercise such powers under this Agreement as are delegated to the Administrative Agent by this Agreement; and (vi) 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.
(d) The Administrative Agent shall maintain at the Administrative Agent’s 's Office a copy of each Assignment and Acceptance Agreement delivered to it and a register (the “"Register”") of the names and address of each of the Lenders and the Pro Rata Share of the Commitments held by each Lender, giving effect to each Assignment and Acceptance. The Register shall be available during normal business hours for inspection by Borrower or any Lender upon reasonable prior notice to the Administrative Agent. After receipt of a completed Assignment and Acceptance executed by any Lender and an Eligible Assignee, and receipt of an assignment fee of $3,500 from such Lender or Eligible Assignee, the Administrative Agent shall, promptly following the effective date thereof, provide to Borrower and the Lenders a revised Schedule 1.1 giving effect thereto. Borrower, the Administrative Agent and the Lenders shall deem and treat the Persons listed as Lenders in the Register as the holders and owners of the Pro Rata Shares of the Revolving Facility listed therein for all purposes hereof, and no assignment or transfer of any Lender’s rights and obligations hereunder shall be effective, in each case unless and until an Assignment and Acceptance effecting the assignment or transfer thereof shall have been accepted by the Administrative Agent and recorded in the Register as provided above. Prior to such recordation, all amounts owed with respect to the applicable Pro Rata Share of the Revolving Facility shall be owed to the Lender listed in the Register as the owner thereof, and any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is listed in the Register as a Lender shall be conclusive and binding on any subsequent holder, assignee or transferee of the corresponding Pro Rata Share of the Revolving Facility.
(e) Each Lender may from time to time grant participations to one or more banks or other financial institutions in or to all or a portion of its rights and/or obligations under this Agreement; provided, however, that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) the participating banks or other financial institutions shall not be a Lender hereunder for any purpose except, if the participation agreement so provides, for the purposes of Sections 3.5, 3.6, 11.11 and 11.21 but only to the extent that the cost of such benefits to Borrower does not exceed the cost which Borrower would have incurred in respect of the Lender granting such participation absent the participation, (iv) Borrower, the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement, (v) the participation interest shall be expressed as a percentage of the granting Lender’s Pro Rata Share of the Revolving Facility as it then exists and shall not restrict an increase in the Revolving Facility (or the aggregate Commitments pertaining thereto), or in the granting Lender’s rights and obligations hereunder, so long as the amount of the participation interest is not affected thereby and (vi) the consent of the holder of such participation interest shall not be required for amendments or waivers of provisions of the Loan Documents other than those which (A) extend any Amortization Date, any applicable Maturity Date or any other date upon which any payment of money is due to the Lenders, (B) reduce the rate of interest on the Notes, any fee or any other monetary amount payable to the Lenders, (C) reduce the amount of any installment of principal due under the Notes, or (D) release any Guarantor from its Guaranty.
(f) Borrower agrees that upon the occurrence and during the continuance of any Event of Default, each Lender shall be entitled to assign its rights hereunder and under the Loan Documents, or grant participation interests in its rights under this Agreement and the Loan Documents, to any Person, in whole or in any part thereof, notwithstanding any provisions contained herein (including those set forth in subsection (b) above) or in any other Loan Document to the contrary, except that, other than (i) assignments by a Lender to an Affiliate of such Lender or to another Lender or (ii) pledges described in the last sentence of subsection (a) above, no assignment shall be made without the approval of the Administrative Agent.each
Appears in 1 contract
Samples: Reducing Revolving Loan Agreement (Station Casinos Inc)
Binding Effect; Assignment. (a) This Agreement and the other Loan Documents to which Borrower is a Party will be binding upon and inure to the benefit of Borrower, the Administrative Agent, the Collateral Agent, each of the Lenders, and their respective successors and assigns, except that Borrower may not assign its rights hereunder or thereunder or any interest herein or therein without the prior written consent of all the Lenders. Each Lender represents that it is not acquiring its Note with a view to the distribution thereof within the meaning of the Securities Act of 1933, as amended (subject to any requirement that disposition of such Note must be within the control of such Lender). Any Lender may at any time pledge its Note or any other instrument evidencing its rights as a Lender under this Agreement to a Federal Reserve Bank, but no such pledge shall release that Lender from its obligations hereunder or grant to such Federal Reserve Bank the rights of a Lender hereunder absent foreclosure of such pledge.
(b) From time to time following the Closing Date, each Lender may assign to one or more Eligible Assignees all or any portion of its rights and obligations under this Agreement (including all or a portion Pro Rata Share of its Commitment, the Advances owing to it and the Note or Notes held by it)Commitments; provided that, subject to subsection (f) below, that (i) such Eligible Assignee, if not then a Lender or an Affiliate of the assigning Lender, shall be approved by the Administrative Agent and (if no Event of Default then exists) Borrower (neither of which approvals shall be unreasonably withheld or delayed), (ii) such assignment shall be evidenced by an a Commitment Assignment and Acceptance, a copy of which shall be furnished to the Administrative Agent as hereinbelow provided, (iii) except in the case of an assignment to an Affiliate of the assigning Lender, to another Lender or of the entire remaining rights and obligations Commitments of the assigning Lender under this AgreementLender, the assignment shall not assign a portion Pro Rata Share of such assigning Lender’s the Commitments and/or Advances owing to such assigning Lender that is equivalent to less than $3,000,000, 5,000,000 and (iv) the effective date of any such assignment shall be as specified in the Commitment Assignment and Acceptance, but not earlier than the date which is five (5) Banking Days after the date the Administrative Agent has received the Commitment Assignment and Acceptance. Upon the effective date of such Commitment Assignment and Acceptance, the Eligible Assignee named therein shall be a Lender for all purposes of this Agreement, with the Pro Rata Share of the Commitments and/or Advances therein set forth and, to the extent of such Commitments and/or AdvancesPro Rata Share, the assigning Lender shall be released from its further obligations under this Agreement. Borrower agrees that it shall execute and deliver (against delivery by the assigning Lender to Borrower of such Lender’s its Notes) to such assignee Lender, Notes evidencing that assignee Lender’s Commitments and/or Advances's Pro Rata Share of the Commitments, and to the assigning Lender, Notes evidencing the remaining balance of the Commitments and/or Advances Pro Rata Share retained by the assigning Lender.
(c) By executing and delivering an a Commitment Assignment and Acceptance, the Eligible Assignee thereunder acknowledges and agrees that: (i) other than the representation and warranty that it is the legal and beneficial owner of the rights and obligations hereunder Pro Rata Share of the Commitments being assigned thereby free and clear of any adverse claim, the assigning Lender has made 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 or sufficiency of this Agreement or any other Loan Document; (ii) the assigning Lender has made no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance by Borrower of the Obligations; (iii) it has received a copy of this Agreement, together with copies of the most recent financial statements delivered pursuant to Section 7.1 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Commitment Assignment and Acceptance; (iv) it will, independently and without reliance upon the Administrative Agent, the Collateral Agent or any Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) it appoints and authorizes the Administrative Agent and the Collateral Agent to take such action and to exercise such powers under this Agreement as are delegated to the Administrative Agent and the Collateral Agent by this Agreement; and (vi) 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.
(d) The Administrative Agent shall maintain at the Administrative Agent’s 's Office a copy of each Commitment Assignment and Acceptance delivered to it and a register (the “"Register”") of the names and address of each of the Lenders and the Pro Rata Share of the Commitments held by each Lender, giving effect to each Commitment Assignment and Acceptance. The Register shall be available during normal business hours for inspection by Borrower or any Lender upon reasonable prior notice to the Administrative Agent. After receipt of a completed Commitment Assignment and Acceptance executed by any Lender and an Eligible Assignee, and receipt of an assignment fee of $3,500 2,500 from such Lender or Eligible Assignee, the Administrative Agent shall, promptly following the effective date thereof, provide to Borrower and the Lenders a revised Schedule 1.1 giving effect thereto. Borrower, the Administrative Agent, the Collateral Agent and the Lenders shall deem and treat the Persons listed as Lenders in the Register as the holders and owners of the Pro Rata Shares Share of the Revolving Facility Commitments listed therein for all purposes hereof, and no assignment or transfer of any Lender’s rights and obligations hereunder such Pro Rata Share of the Commitments shall be effective, in each case unless and until an a Commitment Assignment and Acceptance effecting the assignment or transfer thereof shall have been accepted by the Administrative Agent and recorded in the Register as provided above. Prior to such recordation, all amounts owed with respect to the applicable Pro Rata Share of the Revolving Facility Commitments shall be owed to the Lender listed in the Register as the owner thereof, and any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is listed in the Register as a Lender shall be conclusive and binding on any subsequent holder, assignee or transferee of the corresponding Pro Rata Share of the Revolving FacilityCommitments.
(e) Each Lender may from time to time grant participations to one or more banks or other financial institutions in or to all or a portion of its rights and/or obligations under this AgreementPro Rata Share of the Commitments; provided, however, that (i) such Lender’s 's obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) the participating banks or other financial institutions shall not be a Lender hereunder for any purpose except, if the participation agreement so provides, for the purposes of Sections 3.53.6, 3.63.7, 11.11 and 11.21 11.22 but only to the extent that the cost of such benefits to Borrower does not exceed the cost which Borrower would have incurred in respect of the such Lender granting such participation absent the participation, (iv) Borrower, the Administrative Agent Agent, the Collateral Agent, and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s 's rights and obligations under this Agreement, (v) the participation interest shall be expressed as a percentage of the granting Lender’s 's Pro Rata Share of the Revolving Facility Commitments as it then exists and shall not restrict an increase in the Revolving Facility (or the aggregate Commitments pertaining thereto)Commitments, or in the granting Lender’s rights and obligations hereunder's Pro Rata Share of the Commitments, so long as the amount of the participation interest is not affected thereby thereby, (vi) the holder of the participation interest shall abide by the confidentiality provisions set forth herein and (vivii) the consent of the holder of such participation interest shall not be required for amendments or waivers of provisions of the Loan Documents other than those which (A) extend any Amortization Date, any applicable the Revolving Loan Maturity Date or any other date upon which any payment of money is due to the Lenders, (B) reduce the rate of interest on the Notes, any fee or any other monetary amount payable to the Lenders, (C) reduce the amount of any installment of principal due under the Notes, or (D) release any Guarantor Subsidiary Guaranty, or (E) release any material portion of the Collateral from the Lien of the Collateral Documents, except if such release of Collateral occurs in connection with a Disposition permitted under Section 6.2 or grant of a purchase-money Lien of the type specified in clause (s) of the definition of "Permitted Encumbrances" (unless the holder of such Lien does not prohibit a subordinate Lien on the acquired property or assets, in which case the Collateral Agent shall subordinate its Guaranty.
(f) Borrower agrees that upon Lien on such acquired property or assets in a manner acceptable to the occurrence and during holder of the continuance purchase-money Lien without the need for the consent of any Event of Default, each Lender shall be entitled to assign its rights hereunder and under the Loan Documents, or grant participation interests in its rights under this Agreement and the Loan Documents, to any PersonLender), in whole which case such release shall not require the consent of any of the Lenders or in of any part thereof, notwithstanding any provisions contained herein (including those set forth in subsection (b) above) or in any other Loan Document to the contrary, except that, other than (i) assignments by holder of a Lender to an Affiliate of such Lender or to another Lender or (ii) pledges described participation interest in the last sentence of subsection (a) above, no assignment shall be made without the approval of the Administrative AgentCommitments.
Appears in 1 contract
Binding Effect; Assignment. (a) This Agreement and the other Loan Documents to which Borrower is a Party will shall be binding upon upon, and -------------------------- inure to the benefit of Borrowerof, the Administrative Agent, each of the Lenders, Buyer and Seller and their respective successors successors, legal representatives and assignsassigns as permitted in accordance with this Article 15.
1. Except as expressly provided with respect to rights of indemnification under Article 2 and with respect to the rights of Employees under Article 5.4, except that Borrower nothing herein shall create or be deemed to create any third party beneficiary rights in any person or entity not a party to this Agreement. Prior to the Closing hereunder, no assignment of this Agreement or of any rights or obligations hereunder may not assign its rights hereunder be made by Seller (by operation of law or thereunder or any interest herein or therein otherwise), other than to a wholly-owned subsidiary of Seller, without the prior written consent of all the Lenders. Each Lender represents Buyer, provided that it is not acquiring its Note with a view to the distribution thereof within the meaning of the Securities Act of 1933, as amended (subject to any requirement that disposition of such Note must be within the control of such Lender). Any Lender may at any time pledge its Note or any other instrument evidencing its rights as a Lender under this Agreement to a Federal Reserve Bank, but no such pledge shall release that Lender from its obligations hereunder or grant to such Federal Reserve Bank the rights of a Lender hereunder absent foreclosure of such pledge.
(b) From time to time following the Closing Date, each Lender may assign to one or more Eligible Assignees all or any portion of its rights and obligations under this Agreement (including all or a portion of its Commitment, the Advances owing to it and the Note or Notes held by it); provided that, subject to subsection (f) below, (i) such Eligible Assignee, if not then a Lender or an Affiliate of the assigning Lender, shall be approved by the Administrative Agent and Borrower (neither of which approvals shall be unreasonably withheld or delayed), (ii) such assignment shall be evidenced by an Assignment and Acceptance, a copy relieve Seller of which shall be furnished its obligations hereunder. Prior to the Administrative Agent as hereinbelow providedClosing hereunder, (iii) except in the case of an assignment to an Affiliate of the assigning Lender, to another Lender or of the entire remaining rights and obligations of the assigning Lender under this Agreement, the assignment shall Buyer may not assign a portion of such assigning Lender’s Commitments and/or Advances owing to such assigning Lender that is equivalent to less than $3,000,000, and (iv) the effective date of any such assignment shall be as specified in the Assignment and Acceptance, but not earlier than the date which is five (5) Banking Days after the date the Administrative Agent has received the Assignment and Acceptance. Upon the effective date of such Assignment and Acceptance, the Eligible Assignee named therein shall be a Lender for all purposes of this Agreement, with the Commitments and/or Advances therein set forth and, to the extent of such Commitments and/or Advances, the assigning Lender shall be released from its further obligations under this Agreement. Borrower agrees that it shall execute and deliver (against delivery by the assigning Lender to Borrower of such Lender’s Notes) to such assignee Lender, Notes evidencing that assignee Lender’s Commitments and/or Advances, and to the assigning Lender, Notes evidencing the remaining balance of the Commitments and/or Advances retained by the assigning Lender.
(c) By executing and delivering an Assignment and Acceptance, the Eligible Assignee thereunder acknowledges and agrees that: (i) other than the representation and warranty that it is the legal and beneficial owner of the rights and obligations hereunder being assigned thereby free and clear of any adverse claim, the assigning Lender has made 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 or sufficiency of this Agreement or any rights or obligations hereunder (by operation of law or otherwise), other Loan Document; (ii) than to a wholly-owned subsidiary of Buyer and other than an assignment of Buyer's rights hereunder as collateral to secure the assigning Lender has made no representation or warranty and assumes no responsibility with respect to Financing, without the financial condition written consent of Borrower or Seller, provided that any such assignment by Buyer will not relieve Buyer of its obligations hereunder. Following the performance by Borrower Closing, each party hereto may assign its rights hereunder without the consent of the Obligations; other party hereto, except that in no event may Seller or Buyer assign any of its rights or obligations under any of Article 2, Article 5.4, Article 5.5 or Article 12 to any party (iii) it has received other than to a copy purchaser of this Agreement, together with copies of the most recent financial statements delivered pursuant to Section 7.1 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) it will, independently and without reliance upon the Administrative Agent all or any Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) it appoints and authorizes the Administrative Agent to take such action and to exercise such powers under this Agreement as are delegated to the Administrative Agent by this Agreement; and (vi) it will perform in accordance with their terms substantially all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(d) The Administrative Agent shall maintain at the Administrative Agent’s Office a copy of each Assignment and Acceptance delivered to it and a register (the “Register”) assets of the names and address of each assigning party or to an affiliate of the Lenders and the Pro Rata Share of the Commitments held assigning party which is controlled by each Lendersuch party, giving effect to each Assignment and Acceptance. The Register shall be available during normal business hours for inspection by Borrower or any Lender upon reasonable prior notice to the Administrative Agent. After receipt of a completed Assignment and Acceptance executed by any Lender and an Eligible Assignee, and receipt of an which assignment fee of $3,500 from such Lender or Eligible Assignee, the Administrative Agent shall, promptly following the effective date thereof, provide to Borrower and the Lenders a revised Schedule 1.1 giving effect thereto. Borrower, the Administrative Agent and the Lenders shall deem and treat the Persons listed as Lenders in the Register as the holders and owners of the Pro Rata Shares of the Revolving Facility listed therein for all purposes hereof, and no assignment or transfer of any Lender’s rights and obligations hereunder shall be effective, in each case unless and until an Assignment and Acceptance effecting the assignment or transfer thereof shall have been accepted by the Administrative Agent and recorded in the Register as provided above. Prior to such recordation, all amounts owed with respect to the applicable Pro Rata Share of the Revolving Facility shall be owed to the Lender listed in the Register as the owner thereof, and any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is listed in the Register as a Lender shall be conclusive and binding on any subsequent holder, assignee or transferee of the corresponding Pro Rata Share of the Revolving Facility.
(e) Each Lender may from time to time grant participations to one or more banks or other financial institutions in or to all or a portion of its rights and/or obligations under this Agreement; provided, however, that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto effective only for the performance of such obligations, (iii) the participating banks or other financial institutions shall not be a Lender hereunder for any purpose except, if the participation agreement so provides, for the purposes of Sections 3.5, 3.6, 11.11 and 11.21 but only to the extent that the cost of such benefits to Borrower does not exceed the cost which Borrower would have incurred in respect of the Lender granting such participation absent the participation, (iv) Borrower, the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement, (v) the participation interest shall be expressed as a percentage of the granting Lender’s Pro Rata Share of the Revolving Facility as it then exists and shall not restrict an increase in the Revolving Facility (or the aggregate Commitments pertaining thereto), or in the granting Lender’s rights and obligations hereunder, so long as the amount of assigning party retains such control) without the participation interest is not affected thereby and (vi) the prior written consent of Seller or Buyer, as the holder of such participation interest case may be, which consent shall not be unreasonably withheld. Any attempted assignment without the required for amendments or waivers of provisions of the Loan Documents other than those which (A) extend any Amortization Date, any applicable Maturity Date or any other date upon which any payment of money is due to the Lenders, (B) reduce the rate of interest on the Notes, any fee or any other monetary amount payable to the Lenders, (C) reduce the amount of any installment of principal due under the Notes, or (D) release any Guarantor from its Guaranty.
(f) Borrower agrees that upon the occurrence and during the continuance of any Event of Default, each Lender consent shall be entitled to assign its rights hereunder and under the Loan Documents, or grant participation interests in its rights under this Agreement and the Loan Documents, to any Person, in whole or in any part thereof, notwithstanding any provisions contained herein (including those set forth in subsection (b) above) or in any other Loan Document to the contrary, except that, other than (i) assignments by a Lender to an Affiliate of such Lender or to another Lender or (ii) pledges described in the last sentence of subsection (a) above, no assignment shall be made without the approval of the Administrative Agentvoid.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Wesley Jessen Holding Inc)
Binding Effect; Assignment. (a) This Agreement and the other Loan Documents to which Borrower is a Party will shall be binding upon and inure to the benefit of the Borrower, the Administrative Agent, Agent and each of the LendersLender, and their respective successors and permitted assigns, except that the Borrower may shall not have the right to assign its rights hereunder or thereunder or any interest herein or therein without the prior written consent of all the Administrative Agent and the Lenders. Each Lender represents that it is not acquiring its Note with a view to , and any assignment by the distribution thereof within the meaning Borrower in violation of the Securities Act of 1933, as amended this Section 9.8 shall be null and void.
(subject to any requirement that disposition of such Note must be within the control of such Lender). b) Any Lender may at any time pledge its Note time, without the consent of the Administrative Agent, assign all or any other instrument evidencing portion of its rights as a Lender under this Agreement and any Loan Note to a Federal Reserve Bank, but ; provided that no such assignment or pledge shall release that the transferor Lender from its obligations hereunder or grant to such Federal Reserve Bank the rights of a Lender hereunder absent foreclosure of such pledgehereunder.
(bc) From time Subject to time following the Closing Dateterms of the Acknowledgment Agreement, each Lender may assign to one or more Eligible Assignees banks or other entities all or any part or portion of, or may grant participations to one or more banks or other entities in all or any part or portion of its rights and obligations under this Agreement hereunder (including all its Loan Notes or a portion its Advances) with the prior written consent of its Commitment(x) the Borrower (such consent not to be unreasonably withheld, conditioned, or delayed), provided that the Advances owing Borrower shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to the Administrative Agent within five (5) Business Days after having received notice thereof, and provided further that no consent of the Note or Notes held by it); provided that, subject Borrower shall be required for an assignment to subsection (f) below, (i) such Eligible Assignee, if not then a Lender or an Affiliate of a Lender or, if an Event of Default has occurred and is continuing and (y) the assigning LenderAdministrative Agent; provided that
(i) each party to such assignment shall execute and deliver an Assignment and Assumption to the Administrative Agent, and
(ii) shall be approved by to (x) a bank, other financial institution or lender which is reasonably acceptable to the Administrative Agent, (y) a “qualified institutional buyer”, as defined in Rule 144A under the Securities Act of 1933, as amended, reasonably acceptable to the Administrative Agent or (z) any other Person (other than the Borrower a natural Person or a holding company, investment vehicle or trust for, or owned and Borrower operated by or for the primary benefit of natural persons or any Affiliates of the foregoing) reasonably satisfactory to the Administrative Agent. Upon, and to the extent of, any assignment (neither unless otherwise stated therein) made by any Lender hereunder, the assignee or purchaser of which approvals shall be unreasonably withheld or delayed), (ii) such assignment shall be evidenced by an Assignment and Acceptance, a copy of which shall be furnished to the Administrative Agent as hereinbelow provided, (iii) except in the case of an assignment to an Affiliate of the assigning Lender, to another Lender or of the entire remaining rights and obligations of the assigning Lender under this Agreement, the assignment shall not assign a portion of such assigning Lender’s Commitments and/or Advances owing to such assigning Lender that is equivalent to less than $3,000,000, and (iv) the effective date of any such assignment shall be as specified in the Assignment and Acceptance, but not earlier than the date which is five (5) Banking Days after the date the Administrative Agent has received the Assignment and Acceptance. Upon the effective date of such Assignment and Acceptance, the Eligible Assignee named therein shall be a Lender hereunder for all purposes of this AgreementAgreement and shall have all the rights, with the Commitments and/or Advances therein set forth and, to the extent of such Commitments and/or Advances, the assigning Lender shall be released from its further obligations under this Agreement. Borrower agrees that it shall execute and deliver (against delivery by the assigning Lender to Borrower of such Lender’s Notes) to such assignee Lender, Notes evidencing that assignee Lender’s Commitments and/or Advances, and to the assigning Lender, Notes evidencing the remaining balance of the Commitments and/or Advances retained by the assigning Lender.
(c) By executing and delivering an Assignment and Acceptance, the Eligible Assignee thereunder acknowledges and agrees that: (i) other than the representation and warranty that it is the legal and beneficial owner of the rights benefits and obligations hereunder being assigned thereby free and clear of any adverse claim, (including the assigning Lender has made no representation or warranty and assumes no responsibility with respect obligation to any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness or sufficiency of this Agreement or any other Loan Document; (ii) the assigning Lender has made no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance by Borrower of the Obligations; (iii) it has received a copy of this Agreement, together with copies of the most recent financial statements delivered provide documentation pursuant to Section 7.1 and such other documents and information 2.14(g)) of a Lender hereunder. The Administrative Agent, acting solely for this purpose as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) it will, independently and without reliance upon the Administrative Agent or any Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) it appoints and authorizes the Administrative Agent to take such action and to exercise such powers under this Agreement as are delegated to the Administrative Agent by this Agreement; and (vi) it will perform in accordance with their terms all an agent of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(d) The Administrative Agent Borrower, shall maintain at the Administrative Agent’s Office a copy one of each Assignment and Acceptance delivered to it and its offices a register (the “Register”) for the recordation of the names and address of each addresses of the Lenders and the Pro Rata Share outstanding principal amounts (and accrued interest) of the Commitments held by each Lender, giving effect Advances owing to each Assignment Lender pursuant to the terms hereof from time to time and Acceptanceany assignment of outstanding Advances. The entries in the Register shall be available during normal business hours for inspection by Borrower or any Lender upon reasonable prior notice to the Administrative Agent. After receipt of a completed Assignment and Acceptance executed by any Lender and an Eligible Assigneeconclusive absent manifest error, and receipt of an assignment fee of $3,500 from such Lender or Eligible Assignee, the Administrative Agent shall, promptly following the effective date thereof, provide to Borrower and the Lenders a revised Schedule 1.1 giving effect thereto. Borrower, the Administrative Agent and the Lenders shall deem and treat the Persons listed as Lenders in the Register as the holders and owners of the Pro Rata Shares of the Revolving Facility listed therein for all purposes hereof, and no assignment or transfer of any Lender’s rights and obligations hereunder shall be effective, in each case unless and until an Assignment and Acceptance effecting the assignment or transfer thereof shall have been accepted by the Administrative Agent and Person whose name is recorded in the Register as provided above. Prior to such recordation, all amounts owed with respect pursuant to the applicable Pro Rata Share of the Revolving Facility shall be owed to the Lender listed in the Register as the owner thereof, and any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is listed in the Register terms hereof as a Lender hereunder for all purposes of this Agreement. The Register shall be conclusive available for inspection by the Borrower and binding on any subsequent holderLender, assignee or transferee of the corresponding Pro Rata Share of the Revolving Facility.
(e) Each Lender may at any reasonable time and from time to time grant participations upon reasonable prior notice. Any Lender may sell participation interests in its Advances and obligations hereunder (each such recipient of a participation a “Participant”); provided that after giving effect to one or more banks or other financial institutions in or to all or a portion the sale of its rights and/or obligations under this Agreement; providedsuch participation, however, that (i) such LenderXxxxxx’s obligations under this Agreement hereunder and rights to consent to any waiver hereunder or amendment hereof shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) the participating banks or other financial institutions shall not be a all amounts payable to such Lender hereunder for and all rights to consent to any purpose except, waiver hereunder or amendment hereof shall be determined as if the participation agreement so provides, for the purposes of Sections 3.5, 3.6, 11.11 and 11.21 but only to the extent that the cost of such benefits to Borrower does Xxxxxx had not exceed the cost which Borrower would have incurred in respect of the Lender granting sold such participation absent interest, and the participation, (iv) Borrower, Borrower and the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender and not be obligated to deal with such participant. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the outstanding principal amounts (and accrued interest) of each Participant’s interest in the Advances or other obligations under the Transaction Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any Advances or its other obligations under any Transaction Document) to any Person except to the extent that such disclosure is necessary to establish that such Advances or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations and Proposed Treasury Regulations Section 1.163-5(b) (or any amended or successor version). The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent shall have no responsibility for maintaining a Participant Register. Each recipient of a participation shall, to the fullest extent permitted by law, have the same rights, benefits and obligations (including the obligation to provide documentation pursuant to Section 2.14(g) (it being understood that the documentation required under Section 2.14(g) shall be delivered to the participating Lender)), hereunder with respect to the rights and benefits so participated as it would have if it were a Lender hereunder, except that no Participant shall be entitled to receive any greater payment under Sections 2.11 or 2.14 than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation. Notwithstanding any other provision of this Agreement to the contrary, a Lender may pledge as collateral, or grant a security interest in, all or any portion of its rights in, to and under this Agreement to (i) a security trustee in connection with the funding by such Lender’s rights and Lender of Advances or (ii) a Federal Reserve Bank to secure obligations to such Federal Reserve Bank, in each case without the consent of the Borrower; provided that no such pledge or grant shall release such Lender from its obligations under this Agreement, (v) the participation interest shall be expressed as a percentage of the granting Lender’s Pro Rata Share of the Revolving Facility as it then exists and shall not restrict an increase in the Revolving Facility (or the aggregate Commitments pertaining thereto), or in the granting Lender’s rights and obligations hereunder, so long as the amount of the participation interest is not affected thereby and (vi) the consent of the holder of such participation interest shall not be required for amendments or waivers of provisions of the Loan Documents other than those which (A) extend any Amortization Date, any applicable Maturity Date or any other date upon which any payment of money is due to the Lenders, (B) reduce the rate of interest on the Notes, any fee or any other monetary amount payable to the Lenders, (C) reduce the amount of any installment of principal due under the Notes, or (D) release any Guarantor from its Guaranty.
(f) Borrower agrees that upon the occurrence and during the continuance of any Event of Default, each Lender shall be entitled to assign its rights hereunder and under the Loan Documents, or grant participation interests in its rights under this Agreement and the Loan Documents, to any Person, in whole or in any part thereof, notwithstanding any provisions contained herein (including those set forth in subsection (b) above) or in any other Loan Document to the contrary, except that, other than (i) assignments by a Lender to an Affiliate of such Lender or to another Lender or (ii) pledges described in the last sentence of subsection (a) above, no assignment shall be made without the approval of the Administrative Agent.
Appears in 1 contract
Samples: Credit Agreement (UWM Holdings Corp)
Binding Effect; Assignment. (a) This Agreement and the other Loan Documents to which Borrower is a Party will be binding upon and inure to the benefit of Borrower, the Administrative Agent, the Issuing Lender, each of the Lenders, and their respective successors and assigns, except that Borrower ------ may not assign its respective rights hereunder or thereunder or any interest herein or therein without the prior written consent of all the Lenders. Each Lender represents that it is not acquiring its Note with a view to the distribution thereof within the meaning of the Securities Act of 1933, as amended (subject to any requirement that disposition of such Note must be within the control of such Lender). Any Lender may at any time pledge its Note or any other instrument evidencing its rights as a Lender under this Agreement to a Federal Reserve Bank, but no such pledge shall release that Lender from its obligations hereunder or grant to such Federal Reserve Bank the rights of a Lender hereunder absent foreclosure of such pledge.
(b) From time to time following the Closing Datetime, each Lender may assign to one or more Eligible Assignees all or any portion of its rights and obligations under this Agreement (including all or a portion of its CommitmentPro Rata Share, the Advances owing to it and the Note or Notes held by it); provided that, subject to subsection (f) below, that -------- (i) such Eligible Assignee, if not then a Lender or an Affiliate of the assigning Lender, shall be approved by each of the Administrative Agent and (if no Event of Default then exists) Borrower (neither none of which approvals shall be unreasonably withheld or delayed), (ii) such assignment shall be evidenced by an Assignment and AcceptanceAgreement, a copy of which shall be furnished to the Administrative Agent as hereinbelow provided, (iii) except in the case ------ of an assignment to an Affiliate of the assigning Lender, to another Lender or of the entire remaining rights and obligations Commitment of the assigning Lender under this AgreementLender, the assignment shall not assign a portion of such assigning Lender’s Commitments and/or Advances owing to such assigning Lender Pro Rata Share that is equivalent to less than $3,000,00010,000,000, and (iv) the effective date of any such assignment shall be as specified in the Assignment and AcceptanceAgreement, but not earlier than the date which is five (5) Banking Business Days after the date the Administrative Agent has received the Assignment Agreement, and Acceptance(v) shall be of a constant and non-varying percentage of the Pro Rata Share of the assigning Lender. Upon the effective date of such Assignment and AcceptanceAgreement, the Eligible Assignee named therein shall be a Lender for all purposes of this Agreement, with the Commitments and/or Advances therein Pro Rata Share set forth therein and, to the extent of such Commitments and/or AdvancesPro Rata Share, the assigning Lender shall be released from its further obligations under this Agreement. Borrower agrees that it Borrower shall execute and deliver (against delivery by the assigning Lender to Borrower of such Lender’s Notesits Note) to such assignee Lender, Notes a Note evidencing that assignee Lender’s Commitments and/or Advances's Pro Rata Share, and to the assigning Lender, Notes a Note evidencing the remaining balance of the Commitments and/or Advances Pro Rata Share retained by the assigning Lender.
(c) By executing and delivering an Assignment and AcceptanceAgreement, the Eligible Assignee thereunder acknowledges and agrees that: (i) other than the representation and warranty that it is the legal and beneficial owner of the rights and obligations hereunder Pro Rata Share being assigned thereby free and clear of any adverse claim, the assigning Lender has made 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 or sufficiency of this Agreement or any other Loan Document; (ii) the assigning Lender has made no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or its Subsidiaries or the performance by Borrower and its Subsidiaries of the Obligations; (iii) it has received a copy of this Agreement, together with copies of the most recent financial statements delivered pursuant to Section 7.1 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and AcceptanceAgreement; (iv) it will, independently and without reliance upon the Administrative Agent or any Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) it appoints and authorizes the Administrative Agent to take such action and to exercise such powers under this Agreement as are delegated to the Administrative Agent by this Agreement; and (vi) 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.
(d) The Administrative Agent shall maintain at the Administrative Agent’s 's Office a copy of each Assignment and Acceptance Agreement delivered to it and a register (the “"Register”") of the names and address of each of the Lenders and the Pro Rata Share of the Commitments held by each Lender, giving effect to each Assignment and AcceptanceAgreement. The Register shall be available during normal business hours for inspection by Borrower or any Lender upon reasonable prior notice to the Administrative Agent. After receipt of a completed Assignment and Acceptance Agreement executed by any Lender and an Eligible Assignee, and receipt of an assignment fee of $3,500 from such Lender or Eligible Assignee, the Administrative Agent shall, promptly following the effective date thereof, provide to Borrower and the Lenders a revised Schedule 1.1 giving effect thereto. Borrower, the Administrative Agent Borrower and the Lenders Creditors shall deem and treat the Persons listed as Lenders in the Register as the holders and owners of the Pro Rata Shares of the Revolving Facility Share listed therein for all purposes hereof, and no assignment or transfer of any Lender’s rights and obligations hereunder such Pro Rata Share shall be effective, in each case unless and until an Assignment and Acceptance Agreement effecting the assignment or transfer thereof shall have been accepted by the Administrative Agent and recorded in the Register as provided above. Prior to such recordation, all amounts owed with respect to the applicable Pro Rata Share of the Revolving Facility shall be owed to the Lender listed in the Register as the owner thereof, and any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is listed in the Register as a Lender shall be conclusive and binding on any subsequent holder, assignee or transferee of the corresponding Pro Rata Share of the Revolving FacilityShare.
(e) Each Lender may from time to time grant participations to one or more banks or other financial institutions (including another --------- Lender) in or to all or a portion of its rights and/or obligations under this AgreementPro Rata Share; provided, however, that (i) -------- ------- such Lender’s 's obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) the participating banks or other financial institutions shall not be a Lender hereunder for any purpose except, if the participation agreement so provides, for the purposes of ------ Sections 3.53.7, 3.63.8, 11.11 and 11.21 11.22 but only to the extent that the cost of such benefits to Borrower does not exceed the cost which Borrower would have incurred in respect of the such Lender granting such participation absent the participation, (iv) Borrower, the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s 's rights and obligations under this Agreement, (v) the participation interest shall be expressed as a percentage of the granting Lender’s 's Pro Rata Share of the Revolving Facility as it then exists and shall not restrict an increase in the Revolving Facility (or the aggregate Commitments pertaining thereto)Commitment, or in the granting Lender’s rights and obligations hereunder's Pro Rata Share, so long as the amount of the participation interest is not affected thereby thereby, and (vi) the consent of the holder of such participation interest shall not be required for amendments or waivers of provisions of the Loan Documents other than those which (A) ----- ---- extend any Amortization Reduction Date, any applicable the Maturity Date or any other date upon which any payment of money is due to the Lenders, (B) reduce the rate of interest on the Notes, any fee or any other monetary amount payable to the Lenders, (C) reduce the amount of any installment of principal due under the Notes, or (D) release any Guarantor from its Guarantythe Guaranty or collateral for the Obligations (except to the extent permitted under Section 11.2(d), or (E) change the definition of "Requisite Lenders."
(f) Notwithstanding anything in this Section to the contrary, the rights of the Lenders to make assignments of, and grant participations in, their Pro Rata Shares of the Commitment shall be subject to the approval of any Gaming Board, to the extent required by applicable Gaming Laws, and to compliance with applicable securities laws, if any.
(g) Notwithstanding anything to the contrary contained herein, any Lender (a "Granting Lender") may grant to a special purpose funding vehicle (an "SPC") of such Granting Lender, identified as such in writing from time to time by the Granting Lender to the Administrative Agent and the Borrower agrees the option to provide all or any part of any Loan or Advance that such Granting Lender would otherwise be obligated to make pursuant to Sections 2.1, 2.2 or 2.3, provided that (i) nothing herein shall constitute a commitment to make any Loan by any SPC, (ii) if an SPC elects not to exercise such option or otherwise fails to provide all or any part of such Loan, the Granting Lender shall be obligated to make such Loan pursuant to the terms hereof, and (iii) the rights of any such SPC shall be derivative of the rights of the Granting Lender, and each SPC shall be subject to all of the restrictions upon the occurrence Granting Lender herein contained. Each SPC shall be conclusively presumed to have made arrangements with its Granting Lender for the exercise of voting and during other rights hereunder in a manner which is acceptable to the continuance of any Event of DefaultSPC, and the Administrative Agent, the other Creditors, Borrower and each Lender other Party shall be entitled to assign rely upon and deal solely with the Granting Lender with respect to Loans and Advances made by or through its rights SPC. The making of a Loan by an SPC hereunder shall utilize the Commitment of the Granting Lender to the same extent, and under as if, such Loan were made by the Loan Documents, Granting Lender. Each party hereto hereby agrees that no SPC shall be liable for any indemnity or grant participation interests in its rights similar payment obligation under this Agreement (all liability for which shall remain with the related Granting Lender). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the Loan Documentspayment in full of all outstanding senior indebtedness of any SPC, to it will not institute against, or join any Personother person in instituting against, in whole such SPC any bankruptcy, reorganization, arrangement, insolvency or in liquidation proceedings or similar proceedings under the laws of the United States or any part State thereof, provided that the Granting Lender for each SPC hereby -------- ---- agrees to indemnify, save, and hold harmless each other party hereto for any loss, cost, damage and expense arising out of their inability to institute any such proceeding against its SPC. In addition, notwithstanding any provisions contained herein (including those set forth in subsection (b) above) or in any other Loan Document anything to the contrarycontrary contained in this Section 11.8, except that, other than any SPC may (i) assignments by with notice to, but without the prior written consent of, the Borrower or the Administrative Agent and without paying any processing fee therefor, assign all or a Lender portion of its interests in any Loans to an Affiliate of such its Granting Lender or to another any financial institutions providing liquidity and/or credit facilities to or for the account of such SPC to fund the Loans made by such SPC or to support the securities (if any) issued by such SPC to fund such Loans (but nothing contained herein shall be construed in derogation of the obligation of the Granting Lender to make Loans hereunder), provided that -------- ---- neither the consent of the SPC or of any such assignee shall be required for amendments or waivers of provisions of the Loan Documents except for those amendments or waivers for which the consent of participants is required under Section 11.8(e)(vi), and (ii) pledges disclose on a confidential basis (in the same manner described in the last sentence Section 11.14) any non-public information relating to its Loans to any rating agency, commercial paper dealer or provider of subsection (a) abovea surety, no assignment shall be made without the approval of the Administrative Agentguarantee or credit or liquidity enhancement to such SPC.
Appears in 1 contract
Samples: Loan Agreement (MGM Grand Inc)
Binding Effect; Assignment. (a) This Agreement and the other Loan Documents to which Borrower is a Party party will be binding upon and inure to the benefit of Borrower, the Administrative Agent, each of the LendersBanks, and their respective successors and assigns, except that that, Borrower may not assign its rights hereunder or thereunder or any interest herein or therein without the prior written consent of all the LendersBanks. Each Lender Bank represents that it is not acquiring its Note Loans with a view to the distribution thereof within the meaning of the Securities Act of 1933, as amended (subject to any requirement that disposition of such Note Loans must be within the control of such LenderBank). Any Lender Bank may at any time pledge its Note or any other instrument evidencing its rights as a Lender Bank under this Agreement to a Federal Reserve Bank, but no such pledge shall release that Lender Bank from its obligations hereunder or grant to such Federal Reserve Bank the rights of a Lender Bank hereunder absent foreclosure of such pledge.
(b) From time to time following the Closing Date, each Lender Bank may assign to one or more Eligible Assignees all or any portion of its Pro Rata Share; provided that (i) such assignment shall be of a constant, and not a varying, percentage of all of the assigning Bank's rights and obligations under this Agreement (including all or a portion of its Commitment, the Advances other than any right to make Loans owing to it and the Note or Notes held by it); provided that, subject to subsection (f) below, (i) such Eligible Assigneeii), if not then to a Lender Bank or an Affiliate of the assigning LenderBank, shall be approved consented to by Borrower at all times other than during the existence of an Event of Default and the Administrative Agent and (which approval of Borrower (neither of which approvals shall not be unreasonably withheld or delayed), (iiiii) such assignment shall be evidenced by an Assignment and Acceptance, a copy of which a Notice of Assignment and Acceptance shall be furnished delivered to the Administrative Agent as hereinbelow providedAgent, (iiiiv) except in the case of an assignment to an Affiliate of the assigning LenderBank, to another Lender Bank or of the entire remaining rights and obligations Commitment of the assigning Lender under this AgreementBank, the assignment shall not assign a portion of such assigning Lender’s Commitments and/or Advances owing to such assigning Lender that is Pro Rata Share equivalent to less than $3,000,000the Minimum Amount therefor, and (ivv) the effective date of any such assignment shall be as specified in the Notice of Assignment and Acceptance, but not earlier than the date which is five (5) Banking Business Days after the date the Administrative Agent has received the Notice of Assignment and Acceptance. Upon acceptance by the effective date Administrative Agent of such Notice Assignment and Acceptance, the Eligible Assignee named therein shall be a Lender Bank for all purposes of this Agreement, with the Commitments and/or Advances Pro Rata Share therein set forth and, to the extent of such Commitments and/or AdvancesPro Rata Share, the assigning Lender Bank shall be released from its further obligations under this Agreement. Borrower agrees that it shall execute and deliver upon request (against delivery by the assigning Lender Bank to Borrower of such Lender’s Notesany Note) to such assignee LenderBank, one or more Notes evidencing that assignee Lender’s Commitments and/or AdvancesBank's Pro Rata Share, and to the assigning LenderBank if requested, one or more Notes evidencing the remaining balance of the Commitments and/or Advances Pro Rata Share retained by the assigning LenderBank.
(c) By executing and delivering an a Notice of Assignment and Acceptance, the Eligible Assignee thereunder acknowledges and agrees that: (i) other than the representation and warranty that it is the legal and beneficial owner of the rights and obligations hereunder Pro Rata Share being assigned thereby free and clear of any adverse claim, the assigning Lender Bank has made 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 or sufficiency of this Agreement or any other Loan Document; (ii) the assigning Lender Bank has made no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance by Borrower of the Obligations; (iii) it has received a copy of this Agreement, together with copies of the most recent financial statements (Credit Agreement) 70 77 delivered pursuant to Section 7.1 6.1 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) it will, independently and without reliance upon the Administrative Agent or any Lender Bank and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) it appoints and authorizes the Administrative Agent to take such action and to exercise such powers under this Agreement as are delegated to the Administrative Agent by this Agreement; and (vi) 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 LenderBank.
(d) The Administrative Agent shall maintain at the Administrative Agent’s Office a copy of each Assignment and Acceptance delivered to it and a register (the “Register”) of the names and address of each of the Lenders and the Pro Rata Share of the Commitments held by each Lender, giving effect to each Assignment and Acceptance. The Register shall be available during normal business hours for inspection by Borrower or any Lender upon reasonable prior notice to the Administrative Agent. After receipt of a completed Notice of Assignment and Acceptance executed by any Lender and an Eligible AssigneeAcceptance, and receipt of an assignment fee of $3,500 from such Lender or Eligible Assignee, the Administrative Agent shall, promptly following the effective date thereof, provide to Borrower and the Lenders Banks a revised Schedule 1.1 10.6 giving effect thereto. Borrower, the Administrative Agent and the Lenders shall deem and treat the Persons listed as Lenders in the Register as the holders and owners of the Pro Rata Shares of the Revolving Facility listed therein for all purposes hereof, and no assignment or transfer of any Lender’s rights and obligations hereunder shall be effective, in each case unless and until an Assignment and Acceptance effecting the assignment or transfer thereof shall have been accepted by the Administrative Agent and recorded in the Register as provided above. Prior to such recordation, all amounts owed with respect to the applicable Pro Rata Share of the Revolving Facility shall be owed to the Lender listed in the Register as the owner thereof, and any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is listed in the Register as a Lender shall be conclusive and binding on any subsequent holder, assignee or transferee of the corresponding Pro Rata Share of the Revolving Facility.
(e) Each Lender Bank may from time to time grant participations to one or more banks or other financial institutions (including another Bank) in or to all or a portion of its rights and/or obligations under this AgreementPro Rata Share; provided, however, that (i) such Lender’s Bank's obligations under this Agreement shall remain unchanged, (ii) such Lender Bank shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) the participating banks or other financial institutions shall not be a Lender Bank hereunder for any purpose except, if the participation agreement so provides, for the purposes of Sections 3.5, 3.6, 11.11 and 11.21 Section 3 (but only to the extent that the cost of such benefits to Borrower does not exceed the cost which Borrower would have incurred in respect of the Lender granting such participation Bank absent the participation) and Section 10.9 (subject to Section 10.10), (iv) Borrower, the Administrative Agent and the other Lenders Banks shall continue to deal solely and directly with such Lender Bank in connection with such Lender’s Bank's rights and obligations under this Agreement, (v) the participation interest shall be expressed as a percentage of the granting Lender’s Pro Rata Share of the Revolving Facility as it then exists and shall not restrict an increase in the Revolving Facility (or the aggregate Commitments pertaining thereto), Commitment or in the granting Lender’s rights and obligations hereunderBank's Pro Rata Share, so long as the amount of the participation interest is not affected thereby and (vi) the consent of the holder of such participation interest shall not be required for amendments or waivers of provisions of the Loan Documents other than those which (A) extend any Amortization the Tranche A Maturity Date or Tranche B Maturity Date, any applicable Maturity Date as applicable, as to such participant or any other date upon which any payment of money is due to the Lenderssuch participant, (B) reduce the rate of interest on the Notesowing to such participant, any fee or any other monetary amount payable owing to the Lenderssuch participant, (C) reduce the amount of any installment of principal due under the Notes, owing to such participant or (D) release any Guarantor from its Guarantyguarantor.
(f) Borrower agrees that upon the occurrence and during the continuance of any Event of Default, each Lender shall be entitled to assign its rights hereunder and under the Loan Documents, or grant participation interests in its rights under this Agreement and the Loan Documents, to any Person, in whole or in any part thereof, notwithstanding any provisions contained herein (including those set forth in subsection (b) above) or in any other Loan Document to the contrary, except that, other than (i) assignments by a Lender to an Affiliate of such Lender or to another Lender or (ii) pledges described in the last sentence of subsection (a) above, no assignment shall be made without the approval of the Administrative Agent.
Appears in 1 contract
Samples: Credit Agreement (Flowserve Corp)
Binding Effect; Assignment. (a) This Agreement and the other Loan Documents to which Borrower is a Party will shall be binding upon and inure to the benefit of Borrower, the Administrative Agent, each of the Lenders, Parties and their respective successors and permitted assigns. Except as set forth in Section 12.9(c) and as otherwise expressly provided in this Agreement, except that Borrower may nothing herein shall create or be deemed to create any third party beneficiary rights in any Person or entity not assign its rights hereunder or thereunder or any interest herein or therein a Party to this Agreement. This Agreement shall not be assignable by either party without the prior written consent of all the Lenders. Each Lender represents other parties, except that it is not acquiring its Note with a view at or prior to the distribution thereof within the meaning of the Securities Act of 1933Closing, as amended (subject to any requirement that disposition of such Note must be within the control of such Lender). Any Lender Purchaser may at any time pledge its Note or any other instrument evidencing assign its rights as a Lender and delegate its duties under this Agreement to a Federal Reserve Bankone or more Affiliates; provided, but no that such pledge assignment shall release that Lender from its not discharge the obligations of Purchaser hereunder or grant to until the Closing Date, after which such Federal Reserve Bank obligations shall be the rights sole responsibility of a Lender hereunder absent foreclosure the assignee of such pledgePurchaser.
(b) From time to time following The Parties acknowledge and agree that, upon the Closing Date, each Lender may assign to one or more Eligible Assignees all or any portion effective date of its rights and obligations under this Agreement (including all or a portion of its Commitmentthe Parent’s chapter 11 plan, the Advances owing Post-Consummation Trust referred to it in such Plan shall succeed to any and the Note or Notes held by it); provided that, subject to subsection (f) below, (i) such Eligible Assignee, if not then a Lender or an Affiliate of the assigning Lender, shall be approved by the Administrative Agent and Borrower (neither of which approvals shall be unreasonably withheld or delayed), (ii) such assignment shall be evidenced by an Assignment and Acceptance, a copy of which shall be furnished to the Administrative Agent as hereinbelow provided, (iii) except in the case of an assignment to an Affiliate of the assigning Lender, to another Lender or of the entire remaining all continuing rights and obligations of the assigning Lender Sellers under this Agreement. Without limiting the foregoing, the assignment shall not assign a portion of such assigning Lender’s Commitments and/or Advances owing to such assigning Lender that is equivalent to less than $3,000,000, on and (iv) the effective date of any such assignment shall be as specified in the Assignment and Acceptance, but not earlier than the date which is five (5) Banking Days after the date the Administrative Agent has received the Assignment and Acceptance. Upon the effective date of such Assignment plan, (i) all payments to be made to the Sellers hereunder shall be made to the Post-Consummation Trust, (ii) all entitlements and Acceptanceremedies available to, and all elections and determinations to be made by and all obligations to be undertaken by, the Eligible Assignee named therein Sellers shall be a Lender for all purposes of this Agreementavailable to, with made by and undertaken by the Commitments and/or Advances therein set forth and, to Post- Consummation Trust and (iii) the extent of such Commitments and/or Advances, the assigning Lender Post-Consummation Trust shall be released from entitled to enforce all such rights and undertake such obligations in its further obligations under this Agreement. Borrower agrees that it shall execute and deliver (against delivery by the assigning Lender to Borrower of such Lender’s Notes) to such assignee Lender, Notes evidencing that assignee Lender’s Commitments and/or Advances, and to the assigning Lender, Notes evidencing the remaining balance of the Commitments and/or Advances retained by the assigning Lenderown name.
(c) By executing The Parties acknowledge and delivering an Assignment agree that the Prepetition Agent is a third party beneficiary of, and Acceptanceshall be entitled to enforce in its own name, the Eligible Assignee thereunder acknowledges and agrees that: (i) other than the representation and warranty requirement for delivery of an Equity Agreement in accordance with Section 4.2(r) (it being agreed by the Parties that it is such requirement shall not be waived by Sellers without the legal and beneficial owner consent of the rights Prepetition Agent) and obligations hereunder being assigned thereby free and clear of any adverse claim, the assigning Lender has made 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 or sufficiency of this Agreement or any other Loan Document; (ii) the assigning Lender has made no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance by Borrower of the Obligations; (iii) it has received a copy of this Agreement, together with copies of the most recent financial statements delivered pursuant to Section 7.1 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) it will, independently and without reliance upon the Administrative Agent or any Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) it appoints and authorizes the Administrative Agent to take such action and to exercise such powers under this Agreement as are delegated to the Administrative Agent by this Agreement; and (vi) 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.
(d) The Administrative Agent shall maintain at the Administrative Agent’s Office a copy of each Assignment and Acceptance delivered to it and a register (the “Register”) of the names and address of each of the Lenders and the Pro Rata Share of the Commitments held by each Lender, giving effect to each Assignment and Acceptance. The Register shall be available during normal business hours for inspection by Borrower or any Lender upon reasonable prior notice to the Administrative Agent. After receipt of a completed Assignment and Acceptance executed by any Lender and an Eligible Assignee, and receipt of an assignment fee of $3,500 from such Lender or Eligible Assignee, the Administrative Agent shall, promptly following the effective date thereof, provide to Borrower and the Lenders a revised Schedule 1.1 giving effect thereto. Borrower, the Administrative Agent and the Lenders shall deem and treat the Persons listed as Lenders in the Register as the holders and owners of the Pro Rata Shares of the Revolving Facility listed therein for all purposes hereof, and no assignment or transfer of any Lender’s rights and obligations hereunder shall be effective, in each case unless and until an Assignment and Acceptance effecting the assignment or transfer thereof shall have been accepted by the Administrative Agent and recorded in the Register as provided above. Prior to such recordation, all amounts owed with respect to the applicable Pro Rata Share of the Revolving Facility shall be owed to the Lender listed in the Register as the owner thereof, and any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is listed in the Register as a Lender shall be conclusive and binding on any subsequent holder, assignee or transferee of the corresponding Pro Rata Share of the Revolving Facility.
(e) Each Lender may from time to time grant participations to one or more banks or other financial institutions in or to all or a portion of its rights and/or obligations under this Agreement; provided, however, that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) the participating banks or other financial institutions shall not be a Lender hereunder for any purpose except, if the participation agreement so provides, for the purposes of Sections 3.5, 3.6, 11.11 and 11.21 but only to the extent that the cost of such benefits to Borrower does not exceed the cost which Borrower would have incurred in respect of the Lender granting such participation absent the participation, (iv) Borrower, the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement, (v) the participation interest shall be expressed as a percentage of the granting Lender’s Pro Rata Share of the Revolving Facility as it then exists and shall not restrict an increase in the Revolving Facility (or the aggregate Commitments pertaining thereto), or in the granting Lender’s rights and obligations hereunder, so long as the amount of the participation interest is not affected thereby and (vi) the consent of the holder of such participation interest shall not be required for amendments or waivers of provisions of the Loan Documents other than those which (A) extend any Amortization Date, any applicable Maturity Date or any other date upon which any payment of money is due to the Lenders, (B) reduce the rate of interest on the Notes, any fee or any other monetary amount payable to the Lenders, (C) reduce the amount of any installment of principal due under the Notes, or (D) release any Guarantor from its GuarantySection 8.20.
(f) Borrower agrees that upon the occurrence and during the continuance of any Event of Default, each Lender shall be entitled to assign its rights hereunder and under the Loan Documents, or grant participation interests in its rights under this Agreement and the Loan Documents, to any Person, in whole or in any part thereof, notwithstanding any provisions contained herein (including those set forth in subsection (b) above) or in any other Loan Document to the contrary, except that, other than (i) assignments by a Lender to an Affiliate of such Lender or to another Lender or (ii) pledges described in the last sentence of subsection (a) above, no assignment shall be made without the approval of the Administrative Agent.
Appears in 1 contract
Samples: Asset Purchase Agreement
Binding Effect; Assignment. (a) This Agreement and the other Loan Documents to which Borrower is a Party will shall be binding upon and inure to the benefit of Borrower, the Administrative Agent, each of the Lenders, parties and their respective successors and permitted assigns. Except as expressly provided herein, this Agreement is for the sole benefit of the parties and their respective successors and permitted assigns and nothing herein expressed or implied will give or be construed to give any Person, other than the parties and such successors and permitted assigns, except any legal or equitable rights hereunder; provided, however, that Borrower the parties hereto specifically acknowledge and agree that (i) the provisions of Section 6.6 hereof are intended to be for the benefit of, and shall be enforceable by, all indemnitees (in all of their capacities) affected thereby; and (ii) this Agreement is intended to be for the benefit of, and shall be enforceable in all respects by the Stockholders’ Representative on behalf of the Stockholders; provided, no assignment of this Agreement or of any rights or obligations hereunder may not assign its rights hereunder be made by any party hereto, directly or thereunder indirectly (by operation of Law or any interest herein or therein otherwise), without the prior written consent of all the Lenders. Each Lender represents that it is not acquiring its Note with a view to other parties hereto and any attempted assignment without the distribution thereof within the meaning of the Securities Act of 1933, as amended (subject to any requirement that disposition of such Note must be within the control of such Lender). Any Lender may at any time pledge its Note or any other instrument evidencing its rights as a Lender under this Agreement to a Federal Reserve Bank, but no such pledge shall release that Lender from its obligations hereunder or grant to such Federal Reserve Bank the rights of a Lender hereunder absent foreclosure of such pledge.
(b) From time to time following the Closing Date, each Lender may assign to one or more Eligible Assignees all or any portion of its rights and obligations under this Agreement (including all or a portion of its Commitment, the Advances owing to it and the Note or Notes held by it); provided that, subject to subsection (f) below, (i) such Eligible Assignee, if not then a Lender or an Affiliate of the assigning Lender, required consents shall be approved by the Administrative Agent and Borrower (neither of which approvals shall be unreasonably withheld or delayed), (ii) such assignment shall be evidenced by an Assignment and Acceptance, a copy of which shall be furnished to the Administrative Agent as hereinbelow provided, (iii) except in the case of an assignment to an Affiliate of the assigning Lender, to another Lender or of the entire remaining rights and obligations of the assigning Lender under this Agreement, the assignment shall not assign a portion of such assigning Lender’s Commitments and/or Advances owing to such assigning Lender that is equivalent to less than $3,000,000, and (iv) the effective date of any such assignment shall be as specified in the Assignment and Acceptance, but not earlier than the date which is five (5) Banking Days after the date the Administrative Agent has received the Assignment and Acceptance. Upon the effective date of such Assignment and Acceptance, the Eligible Assignee named therein shall be a Lender for all purposes of this Agreement, with the Commitments and/or Advances therein set forth and, to the extent of such Commitments and/or Advances, the assigning Lender shall be released from its further obligations under this Agreement. Borrower agrees that it shall execute and deliver (against delivery by the assigning Lender to Borrower of such Lender’s Notes) to such assignee Lender, Notes evidencing that assignee Lender’s Commitments and/or Advances, and to the assigning Lender, Notes evidencing the remaining balance of the Commitments and/or Advances retained by the assigning Lender.
(c) By executing and delivering an Assignment and Acceptance, the Eligible Assignee thereunder acknowledges and agrees that: (i) other than the representation and warranty that it is the legal and beneficial owner of the rights and obligations hereunder being assigned thereby free and clear of any adverse claim, the assigning Lender has made 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 or sufficiency of this Agreement or any other Loan Document; (ii) the assigning Lender has made no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance by Borrower of the Obligations; (iii) it has received a copy of this Agreement, together with copies of the most recent financial statements delivered pursuant to Section 7.1 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) it will, independently and without reliance upon the Administrative Agent or any Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) it appoints and authorizes the Administrative Agent to take such action and to exercise such powers under this Agreement as are delegated to the Administrative Agent by this Agreement; and (vi) 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.
(d) The Administrative Agent shall maintain at the Administrative Agent’s Office a copy of each Assignment and Acceptance delivered to it and a register (the “Register”) of the names and address of each of the Lenders and the Pro Rata Share of the Commitments held by each Lender, giving effect to each Assignment and Acceptance. The Register shall be available during normal business hours for inspection by Borrower or any Lender upon reasonable prior notice to the Administrative Agent. After receipt of a completed Assignment and Acceptance executed by any Lender and an Eligible Assignee, and receipt of an assignment fee of $3,500 from such Lender or Eligible Assignee, the Administrative Agent shall, promptly following the effective date thereof, provide to Borrower and the Lenders a revised Schedule 1.1 giving effect thereto. Borrower, the Administrative Agent and the Lenders shall deem and treat the Persons listed as Lenders in the Register as the holders and owners of the Pro Rata Shares of the Revolving Facility listed therein for all purposes hereof, and no assignment or transfer of any Lender’s rights and obligations hereunder shall be effective, in each case unless and until an Assignment and Acceptance effecting the assignment or transfer thereof shall have been accepted by the Administrative Agent and recorded in the Register as provided above. Prior to such recordation, all amounts owed with respect to the applicable Pro Rata Share of the Revolving Facility shall be owed to the Lender listed in the Register as the owner thereof, and any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is listed in the Register as a Lender shall be conclusive and binding on any subsequent holder, assignee or transferee of the corresponding Pro Rata Share of the Revolving Facility.
(e) Each Lender may from time to time grant participations to one or more banks or other financial institutions in or to all or a portion of its rights and/or obligations under this Agreementvoid; provided, however, that (i) such Lender’s obligations under this Agreement shall remain unchangedBuyer and Merger Sub may assign their respective rights, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) the participating banks or other financial institutions shall not be a Lender hereunder for any purpose except, if the participation agreement so provides, for the purposes of Sections 3.5, 3.6, 11.11 and 11.21 but only to the extent that the cost of such benefits to Borrower does not exceed the cost which Borrower would have incurred in respect of the Lender granting such participation absent the participation, (iv) Borrower, the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement, (v) the participation interest shall be expressed as a percentage of the granting Lender’s Pro Rata Share of the Revolving Facility as it then exists and shall not restrict an increase in the Revolving Facility (or the aggregate Commitments pertaining thereto), or in the granting Lender’s rights interests and obligations hereunder, so long as the amount of the participation interest is not affected thereby and (vi) without the consent of the holder of such participation interest shall not be required for amendments or waivers of provisions of the Loan Documents other than those which (A) extend any Amortization DatePerson, any applicable Maturity Date or any other date upon which any payment of money is due to the Lenders, (B) reduce the rate of interest on the Notes, any fee or any other monetary amount payable to the Lenders, (C) reduce the amount an Affiliate. No assignment of any installment of principal due under obligations hereunder shall relieve the Notes, or (D) release any Guarantor from its Guaranty.
(f) Borrower agrees that upon the occurrence and during the continuance parties hereto of any Event such obligations. Notwithstanding the foregoing, Buyer and Merger Sub may assign all of Default, each Lender shall be entitled to assign its rights hereunder and under the Loan Documents, or grant participation interests in its their respective rights under this Agreement and the Loan Documents, for collateral security purposes to any Person, in whole lender providing financing to Buyer or in Merger Sub but no such assignment shall relieve Buyer or Merger Sub of any part thereof, notwithstanding any provisions contained herein (including those set forth in subsection (b) above) liability or in any other Loan Document obligation hereunder. Notwithstanding anything to the contrarycontrary contained in this Agreement, except thatSection 3.3, other than Section 10.3, Section 10.5, Section 10.10, 10.11(a), and this Section 10.8 shall insure to the benefit of the Senior Lenders and their successors and assigns, each of whom are intended to be third party beneficiaries hereof and thereof (i) assignments by a Lender to an Affiliate it being understood and agreed that the provisions of such Lender or to another Lender or (ii) pledges described in sections will be enforceable by the last sentence of subsection (a) above, no assignment shall be made without the approval of the Administrative AgentSenior Lenders).
Appears in 1 contract
Samples: Merger Agreement (Plug Power Inc)
Binding Effect; Assignment. (a) This Agreement and the other Loan Documents to which Borrower is a Party will shall be binding upon and shall inure to the benefit of Borrower, the Administrative Agent, each of the Lenders, Parties and their respective permitted successors and assigns. No Party may assign or delegate, except that Borrower may not assign its rights hereunder by operation of law or thereunder otherwise, all or any interest herein portion of its rights, obligations, or therein liabilities under this Agreement without the prior written consent of all the Lenders. Each Lender represents that it is not acquiring its Note with a view to the distribution thereof within the meaning of the Securities Act of 1933other Party; provided, as amended however, that: (subject to any requirement that disposition of such Note must be within the control of such Lender). Any Lender may at any time pledge its Note or any other instrument evidencing its rights as a Lender under this Agreement to a Federal Reserve Bank, but no such pledge shall release that Lender from its obligations hereunder or grant to such Federal Reserve Bank the rights of a Lender hereunder absent foreclosure of such pledge.
(ba) From time to time following the Closing Date, each Lender Purchaser may assign to one or more Eligible Assignees all or any portion of its rights and obligations under this Agreement (including all or a portion of its Commitment, the Advances owing to it and the Note or Notes held by it); provided that, subject to subsection (f) below, (i) such Eligible Assignee, if not then a Lender or an Affiliate of the assigning Lender, shall be approved by the Administrative Agent and Borrower (neither of which approvals shall be unreasonably withheld or delayed), (ii) such assignment shall be evidenced by an Assignment and Acceptance, a copy of which shall be furnished to the Administrative Agent as hereinbelow provided, (iii) except in the case of an assignment to an Affiliate of the assigning Lender, to another Lender or of the entire remaining rights and obligations of the assigning Lender under this Agreement, the assignment shall not assign a portion of such assigning Lender’s Commitments and/or Advances owing to such assigning Lender that is equivalent to less than $3,000,000, and (iv) the effective date of any such assignment shall be as specified in the Assignment and Acceptance, but not earlier than the date which is five (5) Banking Days after the date the Administrative Agent has received the Assignment and Acceptance. Upon the effective date of such Assignment and Acceptance, the Eligible Assignee named therein shall be a Lender for all purposes of this Agreement, with the Commitments and/or Advances therein set forth and, to the extent of such Commitments and/or Advances, the assigning Lender shall be released from its further obligations under this Agreement. Borrower agrees that it shall execute and deliver (against delivery by the assigning Lender to Borrower of such Lender’s Notes) to such assignee Lender, Notes evidencing that assignee Lender’s Commitments and/or Advances, and to the assigning Lender, Notes evidencing the remaining balance of the Commitments and/or Advances retained by the assigning Lender.
(c) By executing and delivering an Assignment and Acceptance, the Eligible Assignee thereunder acknowledges and agrees that: (i) other than the representation and warranty that it is the legal and beneficial owner of the rights and obligations hereunder being assigned thereby free and clear of any adverse claim, the assigning Lender has made 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 or sufficiency of this Agreement or any other Loan Document; (ii) the assigning Lender has made no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance by Borrower of the Obligations; (iii) it has received a copy of this Agreement, together with copies of the most recent financial statements delivered pursuant to Section 7.1 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) it will, independently and without reliance upon the Administrative Agent or any Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) it appoints and authorizes the Administrative Agent to take such action and to exercise such powers under this Agreement as are delegated to the Administrative Agent by this Agreement; and (vi) 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.
(d) The Administrative Agent shall maintain at the Administrative Agent’s Office a copy of each Assignment and Acceptance delivered to it and a register (the “Register”) of the names and address of each of the Lenders and the Pro Rata Share of the Commitments held by each Lender, giving effect to each Assignment and Acceptance. The Register shall be available during normal business hours for inspection by Borrower or any Lender upon reasonable prior notice to the Administrative Agent. After receipt of a completed Assignment and Acceptance executed by any Lender and an Eligible Assignee, and receipt of an assignment fee of $3,500 from such Lender or Eligible Assignee, the Administrative Agent shall, promptly following the effective date thereof, provide to Borrower and the Lenders a revised Schedule 1.1 giving effect thereto. Borrower, the Administrative Agent and the Lenders shall deem and treat the Persons listed as Lenders in the Register as the holders and owners of the Pro Rata Shares of the Revolving Facility listed therein for all purposes hereof, and no assignment or transfer of any Lender’s rights and obligations hereunder shall be effective, in each case unless and until an Assignment and Acceptance effecting the assignment or transfer thereof shall have been accepted by the Administrative Agent and recorded in the Register as provided above. Prior to such recordation, all amounts owed with respect to the applicable Pro Rata Share of the Revolving Facility shall be owed to the Lender listed in the Register as the owner thereof, and any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is listed in the Register as a Lender shall be conclusive and binding on any subsequent holder, assignee or transferee of the corresponding Pro Rata Share of the Revolving Facility.
(e) Each Lender may from time to time grant participations part hereof to one or more banks or other financial institutions in or to all or a portion of its rights and/or obligations under this AgreementAffiliates without the consent of Novartis; provided, however, that and (b) Novartis may (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) the participating banks or other financial institutions shall not be a Lender hereunder for any purpose except, if the participation agreement so provides, for the purposes of Sections 3.5, 3.6, 11.11 and 11.21 but only to the extent that the cost of such benefits to Borrower does not exceed the cost which Borrower would have incurred in respect of the Lender granting such participation absent the participation, (iv) Borrower, the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s assign its rights and obligations under this AgreementAgreement or any part hereof to one or more of its Affiliates without the consent of Purchaser; and (ii) assign this Agreement in its entirety to a successor to all or substantially all of its business or assets to which this Agreement relates. Notwithstanding the foregoing, (v) at any time after the participation interest shall be expressed as a percentage end of the granting Lender’s Pro Rata Share of the Revolving Facility as it then exists and shall not restrict an increase in the Revolving Facility (or the aggregate Commitments pertaining thereto)applicable Phase 1 Period for each Product, or in the granting Lender’s Purchaser may assign its rights and obligations hereunderunder ARTICLE 9 of this Agreement to one or more of its Affiliates or to a Third Party successor in interest to all or substantially all of Purchaser’s business or assets related to such Product, so long as the amount of the participation interest is not affected thereby and (vi) in each case, without the consent of Novartis. Notwithstanding the holder foregoing or anything to the contrary in this Agreement, Purchaser shall be permitted, without the consent of such participation interest shall not be required for amendments Novartis, to assign any or waivers all of provisions of the Loan Documents other than those which its rights pursuant to this Agreement to its lenders (A) extend any Amortization Date, any applicable Maturity Date or any other date upon which agent therefor) as collateral security; provided that (i) notwithstanding any payment such assignment, Purchaser shall remain responsible for all of money is due to the Lenderstheir respective obligations hereunder, and (Bii) reduce the rate of interest on the Notes, any fee or any other monetary amount payable to the Lenders, (C) reduce the amount of any installment of principal due under the Notes, or (D) release any Guarantor from its Guaranty.
(f) Borrower agrees that upon the occurrence and during the continuance of any Event of Default, each Lender such financing sources shall be entitled to assign its have no greater rights hereunder and under the Loan Documents, or grant participation interests in than Purchaser. Any permitted assignee shall assume all obligations of its rights assignor under this Agreement and the Loan Documents, to any Person, in whole (or in any part thereof, notwithstanding any provisions contained herein (including those set forth in subsection (b) above) or in any other Loan Document related to the contrary, except that, other than (i) assignments by a Lender to an Affiliate of such Lender or to another Lender or (ii) pledges described assigned portion in the last sentence case of subsection (a) abovea partial assignment), and no permitted assignment shall relieve the assignor of liability hereunder. Any purported assignment without such prior written consent shall be made without the approval void and of the Administrative Agentno force or effect.
Appears in 1 contract
Binding Effect; Assignment. (a) This Agreement and the other Loan Documents to which Borrower each of the Credit Parties is a Party party will be binding upon and inure to the benefit of Borrowereach Credit Party, the Administrative Agent, each of the Lenders, and their respective successors and assigns, except that Borrower (i) no Credit Party may not assign its rights hereunder or thereunder or any interest herein or therein without the prior written consent of all the Lenders. Each , and (ii) no Lender represents that it is not acquiring may assign or transfer its Note rights or obligations hereunder except in accordance with a view to the distribution thereof within the meaning of the Securities Act of 1933, as amended (subject to any requirement that disposition of such Note must be within the control of such Lender)this Section. Any Lender may at any time pledge its Note or any other instrument evidencing its rights as a Lender under this Agreement Agreement, including to a Federal Reserve Bank, but no such pledge shall release that Lender from its obligations hereunder or grant to such Federal Reserve Bank the rights of a Lender hereunder absent foreclosure of such pledge.
(b) From time to time following the Closing Date, each Lender may assign to one or more Eligible Assignees assignees all or any portion of its rights and obligations under this Agreement (including all or a portion of its Commitment, the Advances owing to it and the Note or Notes held by it)Pro Rata Share; provided that, subject to subsection (f) below, that (i) so long as no Default or Event of Default has occurred and is continuing such assignee shall be an Eligible AssigneeAssignee and, if such assignee is not then a Lender or Lender, an Affiliate of a Lender or a CLO, any such assignment shall require the assigning Lender, shall be approved by prior written consent of the Administrative Agent and Borrower (neither of which approvals shall be unreasonably withheld or delayed)Company, (ii) any such assignment shall be evidenced by an Assignment and Acceptance, a copy require the prior written consent of which shall be furnished to the Administrative Agent as hereinbelow providedAgent, (iii) any such assignment shall require the written consent of each Issuing Bank, (iv) except in the case of an assignment to an Affiliate of the assigning Lender, to a CLO administered or managed by the assigning Lender or an Affiliate of the assigning Lender, to another Lender or of the entire remaining rights and obligations Commitment of the assigning Lender under this Agreement, Lender; the assignment shall not assign a portion of such assigning Lender’s Commitments and/or Advances owing to such assigning Lender that Pro Rata Share which is equivalent to less than $3,000,000, the Minimum Amount therefore and (ivv) in no event shall any assignment be made to the Company or any of its Subsidiaries. No consent required by this section 11.05(b) shall be unreasonably withheld or delayed; it being understood that it shall not be deemed unreasonable to withhold such consent if based solely on the desire to avoid the payment of additional costs or taxes. A copy of a Notice of Assignment and Acceptance shall be delivered to the Administrative Agent with respect to any assignment. The effective date of any such assignment shall be as specified in the Notice of Assignment and Acceptance, but not earlier than the date which is five (5) Banking Business Days after the date the Administrative Agent has received the Notice of Assignment and Acceptance. Upon the effective date of such Assignment and Acceptance, the Eligible Assignee named therein shall be a Lender for all purposes of this Agreement, with the Commitments and/or Advances therein set forth and, to the extent of such Commitments and/or Advances, the assigning Lender shall be released from its further obligations under this Agreement. Borrower agrees that it shall execute and deliver (against delivery by the assigning Lender to Borrower of such Lender’s Notes) to such assignee Lender, Notes evidencing that assignee Lender’s Commitments and/or Advances, and to the assigning Lender, Notes evidencing the remaining balance of the Commitments and/or Advances retained by the assigning Lender.
(c) By executing and delivering an Assignment and Acceptance, the Eligible Assignee thereunder acknowledges and agrees that: (i) other than the representation and warranty that it is the legal and beneficial owner of the rights and obligations hereunder being assigned thereby free and clear of any adverse claim, the assigning Lender has made 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 or sufficiency of this Agreement or any other Loan Document; (ii) the assigning Lender has made no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance by Borrower of the Obligations; (iii) it has received a copy of this Agreement, together with copies of the most recent financial statements delivered pursuant to Section 7.1 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) it will, independently and without reliance upon the Administrative Agent or any Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) it appoints and authorizes the Administrative Agent to take such action and to exercise such powers under this Agreement as are delegated to the Administrative Agent by this Agreement; and (vi) 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.
(d) The Administrative Agent shall maintain at the Administrative Agent’s Office a copy of each Assignment and Acceptance delivered to it and a register (the “Register”) of the names and address of each of the Lenders and the Pro Rata Share of the Commitments held by each Lender, giving effect to each Assignment and Acceptance. The Register shall be available during normal business hours for inspection by Borrower or any Lender upon reasonable prior notice to the Administrative Agent. After receipt of a completed Assignment and Acceptance executed by any Lender and an Eligible Assignee, and receipt of an assignment fee of $3,500 from such Lender or Eligible Assignee, the Administrative Agent shall, promptly following the effective date thereof, provide to Borrower and the Lenders a revised Schedule 1.1 giving effect thereto. Borrower, the Administrative Agent and the Lenders shall deem and treat the Persons listed as Lenders in the Register as the holders and owners of the Pro Rata Shares of the Revolving Facility listed therein for all purposes hereof, and no assignment or transfer of any Lender’s rights and obligations hereunder shall be effective, in each case unless and until an Assignment and Acceptance effecting the assignment or transfer thereof shall have been accepted by the Administrative Agent and recorded in the Register as provided above. Prior to such recordation, all amounts owed with respect to the applicable Pro Rata Share of the Revolving Facility shall be owed to the Lender listed in the Register as the owner thereof, and any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is listed in the Register as a Lender shall be conclusive and binding on any subsequent holder, assignee or transferee of the corresponding Pro Rata Share of the Revolving Facility.
(e) Each Lender may from time to time grant participations to one or more banks or other financial institutions in or to all or a portion of its rights and/or obligations under this Agreement; provided, however, that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) the participating banks or other financial institutions shall not be a Lender hereunder for any purpose except, if the participation agreement so provides, for the purposes of Sections 3.5, 3.6, 11.11 and 11.21 but only to the extent that the cost of such benefits to Borrower does not exceed the cost which Borrower would have incurred in respect of the Lender granting such participation absent the participation, (iv) Borrower, the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement, (v) the participation interest shall be expressed as a percentage of the granting Lender’s Pro Rata Share of the Revolving Facility as it then exists and shall not restrict an increase in the Revolving Facility (or the aggregate Commitments pertaining thereto), or in the granting Lender’s rights and obligations hereunder, so long as the amount of the participation interest is not affected thereby and (vi) the consent of the holder of such participation interest shall not be required for amendments or waivers of provisions of the Loan Documents other than those which (A) extend any Amortization Date, any applicable Maturity Date or any other date upon which any payment of money is due to the Lenders, (B) reduce the rate of interest on the Notes, any fee or any other monetary amount payable to the Lenders, (C) reduce the amount of any installment of principal due under the Notes, or (D) release any Guarantor from its Guaranty.
(f) Borrower agrees that upon the occurrence and during the continuance of any Event of Default, each Lender shall be entitled to assign its rights hereunder and under the Loan Documents, or grant participation interests in its rights under this Agreement and the Loan Documents, to any Person, in whole or in any part thereof, notwithstanding any provisions contained herein (including those set forth in subsection (b) above) or in any other Loan Document to the contrary, except that, other than (i) assignments by a Lender to an Affiliate of such Lender or to another Lender or (ii) pledges described in the last sentence of subsection (a) above, no assignment shall be made without the approval of the Administrative Agent.
Appears in 1 contract
Samples: Credit Agreement (SAIC, Inc.)
Binding Effect; Assignment. Except as provided in Articles X and XI with respect to the indemnification of indemnified parties hereunder, nothing in this Agreement shall create or be deemed to create any third party beneficiary rights in any Person not a party to this Agreement. Notwithstanding anything in Articles X or XI or elsewhere in this Agreement to the contrary, the rights of any third party beneficiary under such Articles may be affected by and shall be subject at all times to the terms of any amendments, supplements, modifications and waivers entered into by the parties hereto in accordance with Section 12.4. Except as contemplated by Section 7.20, no assignment of this Agreement or of any rights or obligations hereunder may be made by any Seller Entity or Purchaser (by operation of law or otherwise) without the prior written consent of the other parties hereto and any attempted assignment without such required consent shall be void and unenforceable; provided, however, that (a) This any Seller Entity may assign this Agreement and any or all rights or obligations hereunder (i) prior to the other Loan Documents Closing to any Designated Affiliate of Seller and (ii) subsequent to Closing to any Person and (b) Purchaser may assign this Agreement and any or all rights or obligations hereunder (including Purchaser’s rights to purchase the BPP Stock or any of the Transferred Assets and assume the Assumed Liabilities and Purchaser’s and BPP’s rights to seek indemnification hereunder) (i) to any Designated Affiliate(s) of Purchaser, (ii) to any Person from which it has borrowed money as security for obligations to such lender in respect of the financing arrangements entered into in connection with the transactions contemplated hereby and any refinancings, extensions, refundings or renewals thereof; (iii) subsequent to the Closing, to any Person to whom Purchaser transfers one or more of the Xxxxx and any related assets; provided, however, that the Seller Entities shall not thereafter be required to deal with such assignee hereunder, but will continue to be entitled to deal solely with Purchaser and that no such assignment shall result in any expansion or reduction of the Seller Entities’ Liabilities under this Agreement or any Ancillary Agreement or require any Seller Entity, or Affiliates or Representatives thereof to incur any Liability or Loss not otherwise agreed to hereunder or (iv) subsequent to the Closing, to any Person to which Borrower is Purchaser or any of its Affiliates sells all or substantially all of the Transferred Assets and BPP Retained Assets and which executes a Party will written assumption of all of Purchaser’s liabilities and obligations hereunder in favor of the Seller Entities. Notwithstanding the foregoing, except for an assignment under clause (b)(i) of the third sentence of this Section 12.8, the obligations of the Seller Entities under Sections 10.3(b)(i)(A) and (B) shall not be assignable under any circumstances, by operation of law or otherwise, directly or indirectly, without Seller’s prior written consent, which shall not be unreasonably withheld or delayed. Any party assigning this Agreement or any of its rights hereunder prior or subsequent to Closing shall remain responsible for all of its liabilities and obligations hereunder. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of Borrower, and be enforceable by the Administrative Agent, each of the Lenders, parties and their respective successors and permitted assigns. Upon any such permitted assignment, except that Borrower may not assign its rights hereunder or thereunder or any interest herein or therein without the prior written consent of all the Lenders. Each Lender represents that it is not acquiring its Note with a view to the distribution thereof within the meaning of the Securities Act of 1933, as amended (subject to any requirement that disposition of such Note must be within the control of such Lender). Any Lender may at any time pledge its Note or any other instrument evidencing its rights as a Lender under references in this Agreement to a Federal Reserve BankPurchaser or to the Seller Entities, but no such pledge shall release that Lender from its obligations hereunder or grant to such Federal Reserve Bank the rights of a Lender hereunder absent foreclosure of such pledge.
(b) From time to time following the Closing Date, each Lender may assign to one or more Eligible Assignees all or any portion of its rights and obligations under this Agreement (including all or a portion of its Commitment, the Advances owing to it and the Note or Notes held by it); provided that, subject to subsection (f) below, (i) such Eligible Assignee, if not then a Lender or an Affiliate of the assigning Lenderas applicable, shall be approved by the Administrative Agent and Borrower (neither of which approvals shall be unreasonably withheld or delayed), (ii) such assignment shall be evidenced by an Assignment and Acceptance, a copy of which shall be furnished also apply to the Administrative Agent as hereinbelow provided, (iii) except in the case of an assignment to an Affiliate of the assigning Lender, to another Lender or of the entire remaining rights and obligations of the assigning Lender under this Agreement, the assignment shall not assign a portion of such assigning Lender’s Commitments and/or Advances owing to such assigning Lender that is equivalent to less than $3,000,000, and (iv) the effective date of any such assignment shall be as specified in assignee unless the Assignment and Acceptance, but not earlier than the date which is five (5) Banking Days after the date the Administrative Agent has received the Assignment and Acceptance. Upon the effective date of such Assignment and Acceptance, the Eligible Assignee named therein shall be a Lender for all purposes of this Agreement, with the Commitments and/or Advances therein set forth and, to the extent of such Commitments and/or Advances, the assigning Lender shall be released from its further obligations under this Agreement. Borrower agrees that it shall execute and deliver (against delivery by the assigning Lender to Borrower of such Lender’s Notes) to such assignee Lender, Notes evidencing that assignee Lender’s Commitments and/or Advances, and to the assigning Lender, Notes evidencing the remaining balance of the Commitments and/or Advances retained by the assigning Lendercontext otherwise requires.
(c) By executing and delivering an Assignment and Acceptance, the Eligible Assignee thereunder acknowledges and agrees that: (i) other than the representation and warranty that it is the legal and beneficial owner of the rights and obligations hereunder being assigned thereby free and clear of any adverse claim, the assigning Lender has made 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 or sufficiency of this Agreement or any other Loan Document; (ii) the assigning Lender has made no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance by Borrower of the Obligations; (iii) it has received a copy of this Agreement, together with copies of the most recent financial statements delivered pursuant to Section 7.1 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) it will, independently and without reliance upon the Administrative Agent or any Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) it appoints and authorizes the Administrative Agent to take such action and to exercise such powers under this Agreement as are delegated to the Administrative Agent by this Agreement; and (vi) 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.
(d) The Administrative Agent shall maintain at the Administrative Agent’s Office a copy of each Assignment and Acceptance delivered to it and a register (the “Register”) of the names and address of each of the Lenders and the Pro Rata Share of the Commitments held by each Lender, giving effect to each Assignment and Acceptance. The Register shall be available during normal business hours for inspection by Borrower or any Lender upon reasonable prior notice to the Administrative Agent. After receipt of a completed Assignment and Acceptance executed by any Lender and an Eligible Assignee, and receipt of an assignment fee of $3,500 from such Lender or Eligible Assignee, the Administrative Agent shall, promptly following the effective date thereof, provide to Borrower and the Lenders a revised Schedule 1.1 giving effect thereto. Borrower, the Administrative Agent and the Lenders shall deem and treat the Persons listed as Lenders in the Register as the holders and owners of the Pro Rata Shares of the Revolving Facility listed therein for all purposes hereof, and no assignment or transfer of any Lender’s rights and obligations hereunder shall be effective, in each case unless and until an Assignment and Acceptance effecting the assignment or transfer thereof shall have been accepted by the Administrative Agent and recorded in the Register as provided above. Prior to such recordation, all amounts owed with respect to the applicable Pro Rata Share of the Revolving Facility shall be owed to the Lender listed in the Register as the owner thereof, and any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is listed in the Register as a Lender shall be conclusive and binding on any subsequent holder, assignee or transferee of the corresponding Pro Rata Share of the Revolving Facility.
(e) Each Lender may from time to time grant participations to one or more banks or other financial institutions in or to all or a portion of its rights and/or obligations under this Agreement; provided, however, that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) the participating banks or other financial institutions shall not be a Lender hereunder for any purpose except, if the participation agreement so provides, for the purposes of Sections 3.5, 3.6, 11.11 and 11.21 but only to the extent that the cost of such benefits to Borrower does not exceed the cost which Borrower would have incurred in respect of the Lender granting such participation absent the participation, (iv) Borrower, the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement, (v) the participation interest shall be expressed as a percentage of the granting Lender’s Pro Rata Share of the Revolving Facility as it then exists and shall not restrict an increase in the Revolving Facility (or the aggregate Commitments pertaining thereto), or in the granting Lender’s rights and obligations hereunder, so long as the amount of the participation interest is not affected thereby and (vi) the consent of the holder of such participation interest shall not be required for amendments or waivers of provisions of the Loan Documents other than those which (A) extend any Amortization Date, any applicable Maturity Date or any other date upon which any payment of money is due to the Lenders, (B) reduce the rate of interest on the Notes, any fee or any other monetary amount payable to the Lenders, (C) reduce the amount of any installment of principal due under the Notes, or (D) release any Guarantor from its Guaranty.
(f) Borrower agrees that upon the occurrence and during the continuance of any Event of Default, each Lender shall be entitled to assign its rights hereunder and under the Loan Documents, or grant participation interests in its rights under this Agreement and the Loan Documents, to any Person, in whole or in any part thereof, notwithstanding any provisions contained herein (including those set forth in subsection (b) above) or in any other Loan Document to the contrary, except that, other than (i) assignments by a Lender to an Affiliate of such Lender or to another Lender or (ii) pledges described in the last sentence of subsection (a) above, no assignment shall be made without the approval of the Administrative Agent.
Appears in 1 contract
Samples: Asset and Stock Purchase Agreement (Georgia Pacific Corp)
Binding Effect; Assignment. (a) This Agreement and the other Loan Documents to which Borrower is and the Co-Borrowers are a Party will be binding upon and inure to the exclusive benefit of Borrower, the Administrative AgentCo-Borrowers, each of the LendersCreditors, and their respective successors and assigns, except that Borrower and the Co- ------ Borrowers may not assign its their respective rights hereunder or thereunder or any interest herein or therein without the prior written consent of all the LendersBanks. Each Lender Bank represents that it is not acquiring its Note Notes with a view to the distribution thereof within the meaning of the Securities Act of 1933, as amended (subject to any requirement that disposition of such Note its Notes must be within the control of such LenderBank). Any Lender Bank may at any time pledge its Note Notes or any other instrument evidencing its rights as a Lender Bank under this Agreement to a Federal Reserve Bank, but no such pledge shall release that Lender Bank from its obligations hereunder or grant to such Federal Reserve Bank the rights of a Lender Bank hereunder absent foreclosure of such pledge.
(b) From time to time following the Closing Datetime, each Lender Bank may assign to one or more Eligible Assignees all or any portion of its rights and obligations under this Agreement (including all or a portion of its CommitmentPro Rata Share, the Advances owing to it and the Note or Notes held by it); provided that, subject to subsection (f) below, that -------- (i) such Eligible Assignee, if not then a Lender Bank or an Affiliate of the assigning LenderBank, shall be approved by each of the Administrative Agent and (if no Event of Default then exists) Borrower and the Co-Borrowers (neither none of which approvals shall be unreasonably withheld or delayed), (ii) such assignment shall be evidenced by an Assignment and AcceptanceAgreement, a copy of which shall be furnished to the Administrative Agent as hereinbelow provided, (iii) except in the case of an assignment to an Affiliate of the assigning Lender------ Bank, to another Lender Bank or of the entire remaining rights and obligations Commitment of the assigning Lender under this AgreementBank, the assignment shall not assign a portion of such assigning Lender’s Commitments and/or Advances owing to such assigning Lender Pro Rata Share that is equivalent to less than $3,000,0005,000,000, and (iv) the effective date of any such assignment shall be as specified in the Assignment and AcceptanceAgreement, but not earlier than the date which is five (5) Banking Days after the date the Administrative Agent has received the Assignment Agreement, (v) such assignment shall be of a constant and Acceptancenon-varying percentage of the Pro Rata Share of the assigning Bank, and (vi) the assignor Bank shall have paid a $3500 assignment fee to the Administrative Agent. Upon the effective date of such Assignment and AcceptanceAgreement, the Eligible Assignee named therein shall be a Lender Bank for all purposes of this Agreement, with the Commitments and/or Advances therein Pro Rata Share set forth therein and, to the extent of such Commitments and/or AdvancesPro Rata Share, the assigning Lender Bank shall be released from its further obligations under this Agreement. Borrower agrees and the Co-Borrowers agree that it they shall execute and deliver (against delivery by the assigning Lender Bank to Borrower of such Lender’s Notesits Committed Advance Note) to such assignee LenderBank, Notes a Committed Advance Note evidencing that assignee Lender’s Commitments and/or AdvancesBank's Pro Rata Share and a Competitive Advance Note, and to the assigning LenderBank, Notes a Committed Advance Note evidencing the remaining balance of the Commitments and/or Advances Pro Rata Share retained by the assigning LenderBank.
(c) By executing and delivering an a Assignment and AcceptanceAgreement, the Eligible Assignee thereunder acknowledges and agrees that: (i) other than the representation and warranty that it is the legal and beneficial owner of the rights and obligations hereunder Pro Rata Share being assigned thereby free and clear of any adverse claim, the assigning Lender Bank has made 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 or sufficiency of this Agreement or any other Loan Document; (ii) the assigning Lender Bank has made no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or its Subsidiaries or the performance by Borrower and its Subsidiaries of the Obligations; (iii) it has received a copy of this Agreement, together with copies of the most recent financial statements delivered pursuant to Section 7.1 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and AcceptanceAgreement; (iv) it will, independently and without reliance upon the Administrative Agent or any Lender Bank and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) it appoints and authorizes the Administrative Agent to take such action and to exercise such powers under this Agreement as are delegated to the Administrative Agent by this Agreement; and (vi) 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 LenderBank.
(d) The Administrative Agent shall maintain at the Administrative Agent’s 's Office a copy of each Assignment and Acceptance Agreement delivered to it and a register (the “"Register”") of the names and address of each of the Lenders Banks and the Pro Rata Share of the Commitments held by each LenderBank, giving effect to each Assignment and AcceptanceAgreement. The Register shall be available during normal business hours for inspection by Borrower Borrower, the Co-Borrowers or any Lender Bank upon reasonable prior notice to the Administrative Agent. After receipt of a completed Assignment and Acceptance executed by any Lender and an Eligible Assignee, and receipt of an assignment fee of $3,500 from such Lender or Eligible Assignee, the Administrative Agent shall, promptly following the effective date thereof, provide to Borrower and the Lenders a revised Schedule 1.1 giving effect thereto. Borrower, the Administrative Agent Co-Borrowers and the Lenders Creditors shall deem and treat the Persons listed as Lenders Banks in the Register as the holders and owners of the Pro Rata Shares of the Revolving Facility Share listed therein for all purposes hereof, and no assignment or transfer of any Lender’s rights and obligations hereunder such Pro Rata Share shall be effective, in each case unless and until an a Assignment and Acceptance Agreement effecting the assignment or transfer thereof shall have been accepted by the Administrative Agent and recorded in the Register as provided above. Prior to such recordation, all amounts owed with respect to the applicable Pro Rata Share of the Revolving Facility shall be owed to the Lender Bank listed in the Register as the owner thereof, and any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is listed in the Register as a Lender Bank shall be conclusive and binding on any subsequent holder, assignee or transferee of the corresponding Pro Rata Share of the Revolving FacilityShare.
(e) Each Lender Bank may from time to time grant participations to one or more banks or other financial institutions (including another Bank) in or to all or a --------- portion of its rights and/or obligations under this AgreementPro Rata Share (or in Competitive Advances made by that Bank); provided, however, that (i) such Lender’s Bank's obligations under this -------- ------- Agreement shall remain unchanged, (ii) such Lender Bank shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) the participating banks or other financial institutions shall not be a Lender Bank hereunder for any purpose except, if the participation ------ agreement so provides, for the purposes of Sections 3.53.7, 3.63.8, 11.11 and 11.21 11.22 but only to the extent that the cost of such benefits to Borrower and the Co-Borrowers does not exceed the cost which Borrower and the Co- Borrowers would have incurred in respect of the Lender granting such participation Bank absent the participation, (iv) Borrower, the Co-Borrowers, the Administrative Agent and the other Lenders Banks shall continue to deal solely and directly with such Lender Bank in connection with such Lender’s Bank's rights and obligations under this Agreement, (v) the participation interest shall be expressed as a percentage of the granting Lender’s Bank's Pro Rata Share of the Revolving Facility as it then exists and shall not restrict an increase in the Revolving Facility (or the aggregate Commitments pertaining thereto)Commitment, or in the granting Lender’s rights and obligations hereunderBank's Pro Rata Share, so long as the amount of the participation interest is not affected thereby thereby, and (vi) the consent of the holder of such participation interest shall not be required for amendments or waivers of provisions of the Loan Documents other than those which (A) extend any Amortization Date, any applicable the Maturity Date or ---------- any other date upon which any payment of money is due to the LendersBanks, (B) reduce the rate of interest on the Notes, any fee or any other monetary amount payable to the LendersBanks, (C) reduce the amount of any installment of principal due under the Notes, or (D) release any Guarantor from its the Guaranty, or (E) change the definition of "Requisite Banks."
(f) Borrower agrees Notwithstanding anything in this Section to the contrary, the rights of the Banks to make assignments of, and grant participations in, their Pro Rata Shares of the Commitment shall be subject to the approval of any Gaming Board, to the extent required by applicable Gaming Laws, and to compliance with applicable securities laws, if any.
(g) Notwithstanding anything to the contrary contained herein, any Bank (a "Granting Bank") may grant to one or more SPC's established or maintained by that Granting Bank the option to provide all or any part of any Loan or Advance that such Granting Bank would otherwise be obligated to make pursuant to Sections 2.1, 2.2, 2.3 or 2.5, provided that (i) nothing herein shall constitute a commitment to make any Loan by any SPC, (ii) if a SPC elects not to exercise such option or otherwise fails to provide all or any part of such Loan, the Granting Bank shall be obligated to make such Loan pursuant to the terms hereof, and (iii) the rights of any such SPC shall be derivative of the rights of the Granting Bank, and each SPC shall be subject to all of the restrictions upon the occurrence Granting Bank herein contained. Each SPC shall be conclusively presumed to have made arrangements with its Granting Bank for the exercise of voting and during other rights hereunder in a manner which is acceptable to the continuance of any Event of DefaultSPC, and the Administrative Agent, the other Creditors, Borrower, the Co-Borrowers and each Lender other Party shall be entitled to assign rely upon and deal solely with the Granting Bank with respect to Loans and Advances made by or through its rights SPC. The making of a Loan by a SPC hereunder shall utilize the Commitment of the Granting Bank (and, if such Loan is a Competitive Advance, shall be deemed to utilize the Commitments of all the Banks) to the same extent, and under as if, such Loan were made by the Loan Documents, Granting Bank. Each party hereto hereby agrees that no SPC shall be liable for any indemnity or grant participation interests in its rights similar payment obligation under this Agreement (all liability for which shall remain with the related Granting Bank). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the Loan Documentspayment in full of all outstanding senior indebtedness of any SPC, to it will not institute against, or join any Personother person in instituting against, in whole such SPC any bankruptcy, reorganization, arrangement, insolvency or in liquidation proceedings or similar proceedings under the laws of the United States or any part State thereof, provided that the -------- ---- Granting Bank for each SPC hereby agrees to indemnify, save, and hold harmless each other party hereto for any loss, cost, damage and expense arising out of their inability to institute any such proceeding against its SPC. In addition, notwithstanding any provisions contained herein (including those set forth in subsection (b) above) or in any other Loan Document anything to the contrarycontrary contained in this Section 11.8, except that, other than any SPC may (i) assignments by with notice to, but without the prior written consent of, the Borrower, the Co-Borrowers or the Administrative Agent and without paying any processing fee therefor, assign all or a Lender portion of its interests in any Loans to an Affiliate its Granting Bank or to any financial institutions providing liquidity and/or credit facilities to or for the account of such Lender SPC to fund the Loans made by such SPC or to another Lender support the securities (if any) issued by such SPC to fund such Loans (but nothing contained herein shall be construed in derogation of the obligation of the Granting Bank to make Loans hereunder), provided that neither the -------- ---- consent of the SPC or of any such assignee shall be required for amendments or waivers of provisions of the Loan Documents except for those amendments or waivers for which the consent of participants is required under Section 11.8(e)(vi), and (ii) pledges disclose on a confidential basis (in the same manner described in the last sentence Section 11.14) any non-public information relating to its Loans to any rating agency, commercial paper dealer or provider of subsection (a) abovea surety, no assignment shall be made without the approval of the Administrative Agentguarantee or credit or liquidity enhancement to such SPC.
Appears in 1 contract
Samples: Loan Agreement (MGM Grand Inc)
Binding Effect; Assignment. (a) This Agreement and the other Loan Documents to which Borrower is a Party party will be binding upon and inure to the benefit of Borrower, the Administrative Agent, each of the Lenders, Lenders and their respective successors and assigns, except that Borrower may not not, except as permitted by Section 7.03, assign its rights hereunder or thereunder or any interest herein or therein without the prior written consent of all the Lenders. Each Lender represents that it is not acquiring its Note with a view to the distribution thereof within the meaning of the Securities Act of 1933, as amended (subject to Lenders and any requirement that disposition of such Note must attempted assignment shall be within the control of such Lender)void. Any Lender may at any time pledge its Note or any other instrument evidencing its rights as a Lender under this Agreement to a Federal Reserve BankBank or, if such Lender is a fund, to any trustee or to any other representative of holders of obligations owed or securities issued by such fund as security for such obligations or securities, but no such pledge shall release that such Lender from its obligations hereunder or grant to such Federal Reserve Bank or trust or other representative the rights of a Lender hereunder absent foreclosure of such pledge, and any transfer to any Person upon the enforcement of such pledge shall be subject to this Section 10.04.
(b) From time to time following the Closing Date, each Lender may assign to one or more Eligible Assignees banks or other financial institutions (with any such bank or other financial institution, other than an Affiliate of the assigning Lender, being required to have a combined capital and surplus of at least $250,000,000 (such qualifications being subject to waiver by Borrower and Administrative Agent)) all or any portion of its rights and obligations under this Agreement (including all or a portion Commitment and/or Extensions of its Commitment, the Advances owing to it and the Note or Notes held by it)Credit; provided that, subject to subsection (f) below, that (i) such Eligible Assigneeassignment, if not then to a Lender or an Affiliate of the assigning Lender, shall be approved by the Administrative Agent and Borrower consented to (neither of which approvals consents shall not be unreasonably withheld or delayed)withheld) by Borrower at all times other than during the existence of an Event of Default and by Administrative Agent, (ii) such assignment shall be evidenced by an Assignment and Acceptance, a copy of which a duly signed and completed Assignment and Acceptance shall be furnished delivered to the Administrative Agent as hereinbelow providedAgent, (iii) except in the case of an assignment (A) to an Affiliate of the assigning Lender, Lender or to another Lender or (B) of the entire remaining rights and obligations Commitment of the assigning Lender under this AgreementLender, the assignment portion of the Commitment assigned shall not assign a portion of such assigning Lender’s Commitments and/or Advances owing to such assigning Lender that is equivalent to be less than $3,000,000the Minimum Amount therefor, and (iv) the effective date of any such assignment shall be as specified in the Assignment and Acceptance, but not earlier than the date which is five (5) Banking Business Days after the date the Administrative Agent has received the Assignment and Acceptance. Upon obtaining any consent required as set forth in the effective date prior sentence, any forms required by Section 10.20 and payment of such Assignment and Acceptancethe requisite fee described below, the Eligible Assignee assignee named therein shall be a Lender for all purposes of this Agreement, with the Commitments and/or Advances therein set forth and, Agreement to the extent of the Assigned Interest (as defined in such Commitments and/or AdvancesAssignment and Acceptance), and, except for rights and obligations which by their terms survive termination of any Commitments, the assigning Lender shall be released from its any further obligations under this AgreementAgreement to the extent of such Assigned Interest. Upon request, Borrower agrees that it shall execute and deliver (against delivery by new or replacement Notes to the assigning Lender and the assignee Lender to Borrower of such Lender’s Notes) evidence Loans made by them. Administrative Agent's consent to such assignee Lender, Notes evidencing that assignee Lender’s Commitments and/or Advances, any assignment shall not be deemed to constitute any representation or warranty by any Administrative Agent-Related Person as to any matter. Administrative Agent shall record the information contained in the Assignment and to Acceptance in the assigning Lender, Notes evidencing the remaining balance of the Commitments and/or Advances retained by the assigning LenderRegister.
(c) By executing and delivering an Assignment and Acceptance, the Eligible Assignee thereunder acknowledges and agrees that: (i) other than the representation and warranty that it is the legal and beneficial owner of the rights and obligations hereunder being assigned thereby free and clear of any adverse claim, the assigning Lender has made 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 or sufficiency of this Agreement or any other Loan Document; (ii) the assigning Lender has made no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance by Borrower of the Obligations; (iii) it has received a copy of this Agreement, together with copies of the most recent financial statements delivered pursuant to Section 7.1 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) it will, independently and without reliance upon the Administrative Agent or any Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) it appoints and authorizes the Administrative Agent to take such action and to exercise such powers under this Agreement as are delegated to the Administrative Agent by this Agreement; and (vi) 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.
(d) The Administrative Agent shall maintain at the Administrative Agent’s Office a copy of each Assignment and Acceptance delivered to it and a register (the “Register”) of the names and address of each of the Lenders and the Pro Rata Share of the Commitments held by each Lender, giving effect to each Assignment and Acceptance. The Register shall be available during normal business hours for inspection by Borrower or any Lender upon reasonable prior notice to the Administrative Agent. After receipt of a completed Assignment and Acceptance executed by any Lender and an Eligible AssigneeAcceptance, and receipt of an assignment fee of $3,500 from such assignee and/or such assigning Lender or Eligible Assignee(including in the case of assignments to Affiliates of assigning Lenders), the Administrative Agent shall, promptly following the effective date thereof, provide to Borrower and the Lenders a revised Schedule 1.1 2.01 giving effect thereto. Borrower, the Administrative Agent and the Lenders shall deem and treat the Persons listed as Lenders in the Register as the holders and owners of the Pro Rata Shares of the Revolving Facility listed therein for all purposes hereof, and no assignment or transfer of any Lender’s rights and obligations hereunder shall be effective, in each case unless and until an Assignment and Acceptance effecting the assignment or transfer thereof shall have been accepted by the Administrative Agent and recorded in the Register as provided above. Prior to such recordation, all amounts owed with respect to the applicable Pro Rata Share of the Revolving Facility shall be owed to the Lender listed in the Register as the owner thereof, and any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is listed in the Register as a Lender shall be conclusive and binding on any subsequent holder, assignee or transferee of the corresponding Pro Rata Share of the Revolving Facility.
(ed) Each Lender may from time to time time, without the consent of any other Person, grant participations to one or more banks or other financial institutions Persons (including another Lender) in or to all or a any portion of its rights Commitment and/or obligations under this AgreementExtensions of Credit; provided, however, that (i) such Lender’s 's obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) the participating banks bank or other financial institutions institution shall not be a Lender hereunder for any purpose except, if the participation agreement so provides, for the purposes of Sections 3.5, 3.6, 11.11 and 11.21 the increased cost provisions of Section 3 (but only to the extent that the cost of such benefits to Borrower does not exceed the cost which Borrower would have incurred in respect of the such Lender granting such participation absent the participation) and for purposes of Section 10.06, (iv) Borrower, the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s 's rights and obligations under this Agreement, and (v) the participation interest shall be expressed as a percentage of the granting Lender’s Pro Rata Share of the Revolving Facility as it then exists and shall not restrict an increase in the Revolving Facility (or the aggregate Commitments pertaining thereto), or in the granting Lender’s rights and obligations hereunder, so long as the amount of the participation interest is not affected thereby and (vi) the consent of the holder of such participation interest shall not be required for amendments or waivers of provisions of the Loan Documents other than those Documents; provided however, that the assigning Lender may, in any agreement with a participant, give such participant the right to consent (as between the assigning Lender and such participant) to any matter which (A) extend any Amortization Date, any applicable extends the Maturity Date as to such participant or any other date upon which any payment of money is due to the Lenderssuch participant, (B) reduce reduces the rate of interest on the Notes, owing to such participant or any fee or any other monetary amount payable owing to the Lenderssuch participant, or (C) reduce reduces the amount of any installment scheduled payment of principal due under owing to such participant. Any Lender that sells a participation to any Person that is a "foreign corporation, partnership or trust" within the Notes, meaning of the Code shall include in its participation agreement with such Person a covenant by such Person that such Person will comply with the provisions of Section 10.20 as if such Person were a Lender and provide that Administrative Agent and Borrower shall be third party beneficiaries of such covenant. Each Lender that sells or grants a participation shall (Da) release any Guarantor withhold or deduct from its Guaranty.
(f) Borrower agrees that upon each payment to the occurrence and during holder of such participation the continuance amount of any Event of Defaulttax required under applicable law to be withheld or deducted from such payment and not withheld or deducted therefrom by Borrower or Administrative Agent, each Lender shall be entitled to assign its rights hereunder and under the Loan Documents, or grant participation interests in its rights under this Agreement and the Loan Documents, to any Person, in whole or in any part thereof, notwithstanding any provisions contained herein (including those set forth in subsection (b) above) pay the tax so withheld or in any other Loan Document deducted by it to the contraryappropriate taxing authority in accordance with applicable law and (c) indemnify Borrower and Administrative Agent for any losses, except that, other than (i) assignments by cost and expenses that they may incur as a Lender result of any failure to an Affiliate of so withhold or deduct and pay such Lender or to another Lender or (ii) pledges described in the last sentence of subsection (a) above, no assignment shall be made without the approval of the Administrative Agenttax.
Appears in 1 contract
Samples: 364 Day Revolving Credit Agreement (Comcast Cable Communications Inc)
Binding Effect; Assignment. (a) This Agreement and the other Loan Documents to which Borrower is a Party will be binding upon and inure to the benefit of Borrower, the Administrative Agent, each of the Lenders, and their respective successors and assigns, except that Borrower may not assign its ------ rights hereunder or thereunder or any interest herein or therein without the prior written consent of all the Lenders. Each Lender represents that it is not acquiring its Note with a view to the distribution thereof within the meaning of the Securities Act of 1933, as amended (subject to any requirement that disposition of such Note must be within the control of such Lender). Any Lender may at any time pledge its Note or any other instrument evidencing its rights as a Lender under this Agreement to a Federal Reserve Bank, but no such pledge shall release that Lender from its obligations hereunder or grant to such Federal Reserve Bank the rights of a Lender hereunder absent foreclosure of such pledge.
(b) From time to time following the Closing Date, each Lender may assign to one or more Eligible Assignees all or any portion of its rights and obligations under this Agreement (including all or a portion Pro Rata Share of its Commitment, the Advances owing to it and the Note or Notes held by it)Commitments; provided that, subject to subsection (f) below, that (i) such Eligible Assignee, if -------- not then a Lender or an Affiliate of the assigning Lender, shall be approved by the Administrative Agent and (if no Event of Default then exists) Borrower (neither of which approvals shall be unreasonably withheld or delayed), (ii) such assignment shall be evidenced by an a Commitments Assignment and Acceptance, a copy of which shall be furnished to the Administrative Agent as hereinbelow provided, (iii) except in the case of an assignment to an Affiliate of the ------ assigning Lender, to another Lender or of the entire remaining rights and obligations Commitments of the assigning Lender under this AgreementLender, the assignment shall not assign a portion Pro Rata Share of such assigning Lender’s the Commitments and/or Advances owing to such assigning Lender that is equivalent to less than $3,000,000, 5,000,000 and (iv) the effective date of any such assignment shall be as specified in the Commitments Assignment and Acceptance, but not earlier than the date which is five (5) Banking Days after the date the Administrative Agent has received the Commitments Assignment and Acceptance. Upon the effective date of such Commitments Assignment and Acceptance, the Eligible Assignee named therein shall be a Lender for all purposes of this Agreement, with the Pro Rata Share of the Commitments and/or Advances therein set forth and, to the extent of such Commitments and/or AdvancesPro Rata Share, the assigning Lender shall be released from its further obligations under this Agreement. Borrower agrees that it shall execute and deliver (against delivery by the assigning Lender to Borrower of such Lender’s Notesits Note) to such assignee Lender, Notes evidencing that assignee Lender’s Commitments and/or Advances's Pro Rata Share of the Commitments, and to the assigning Lender, Notes evidencing the remaining balance of the Commitments and/or Advances Pro Rata Share retained by the assigning Lender.
(c) By executing and delivering an a Commitments Assignment and Acceptance, the Eligible Assignee thereunder acknowledges and agrees that: (i) other than the representation and warranty that it the assigning Lender is the legal and beneficial owner of the rights and obligations hereunder Pro Rata Share of the Commitments being assigned thereby free and clear of any Lien or other adverse claim, the assigning Lender has made 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 or sufficiency of this Agreement or any other Loan Document; (ii) the assigning Lender has made no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance by Borrower of the Obligations; (iii) it has received a copy of this Agreement, together with copies of the most recent financial statements delivered pursuant to Section 7.1 and such other documents and information --- as it has deemed appropriate to make its own credit analysis and decision to enter into such Commitments Assignment and Acceptance; (iv) it will, independently and without reliance upon the Administrative Agent or any Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) it appoints and authorizes the Administrative Agent to take such action and to exercise such powers under this Agreement as are delegated to the Administrative Agent by this Agreement; and (vi) 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.
(d) The Administrative Agent shall maintain at the Administrative Agent’s Office a copy of each Assignment and Acceptance delivered to it and a register (the “Register”) of the names and address of each of the Lenders and the Pro Rata Share of the Commitments held by each Lender, giving effect to each Assignment and Acceptance. The Register shall be available during normal business hours for inspection by Borrower or any Lender upon reasonable prior notice to the Administrative Agent. After receipt of a completed Assignment and Acceptance executed by any Lender and an Eligible Assignee, and receipt of an assignment fee of $3,500 from such Lender or Eligible Assignee, the Administrative Agent shall, promptly following the effective date thereof, provide to Borrower and the Lenders a revised Schedule 1.1 giving effect thereto. Borrower, the Administrative Agent and the Lenders shall deem and treat the Persons listed as Lenders in the Register as the holders and owners of the Pro Rata Shares of the Revolving Facility listed therein for all purposes hereof, and no assignment or transfer of any Lender’s rights and obligations hereunder shall be effective, in each case unless and until an Assignment and Acceptance effecting the assignment or transfer thereof shall have been accepted by the Administrative Agent and recorded in the Register as provided above. Prior to such recordation, all amounts owed with respect to the applicable Pro Rata Share of the Revolving Facility shall be owed to the Lender listed in the Register as the owner thereof, and any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is listed in the Register as a Lender shall be conclusive and binding on any subsequent holder, assignee or transferee of the corresponding Pro Rata Share of the Revolving Facility.
(e) Each Lender may from time to time grant participations to one or more banks or other financial institutions in or to all or a portion of its rights and/or obligations under this Agreement; provided, however, that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) the participating banks or other financial institutions shall not be a Lender hereunder for any purpose except, if the participation agreement so provides, for the purposes of Sections 3.5, 3.6, 11.11 and 11.21 but only to the extent that the cost of such benefits to Borrower does not exceed the cost which Borrower would have incurred in respect of the Lender granting such participation absent the participation, (iv) Borrower, the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement, (v) the participation interest shall be expressed as a percentage of the granting Lender’s Pro Rata Share of the Revolving Facility as it then exists and shall not restrict an increase in the Revolving Facility (or the aggregate Commitments pertaining thereto), or in the granting Lender’s rights and obligations hereunder, so long as the amount of the participation interest is not affected thereby and (vi) the consent of the holder of such participation interest shall not be required for amendments or waivers of provisions of the Loan Documents other than those which (A) extend any Amortization Date, any applicable Maturity Date or any other date upon which any payment of money is due to the Lenders, (B) reduce the rate of interest on the Notes, any fee or any other monetary amount payable to the Lenders, (C) reduce the amount of any installment of principal due under the Notes, or (D) release any Guarantor from its Guaranty.
(f) Borrower agrees that upon the occurrence and during the continuance of any Event of Default, each Lender shall be entitled to assign its rights hereunder and under the Loan Documents, or grant participation interests in its rights under this Agreement and the Loan Documents, to any Person, in whole or in any part thereof, notwithstanding any provisions contained herein (including those set forth in subsection (b) above) or in any other Loan Document to the contrary, except that, other than (i) assignments by a Lender to an Affiliate of such Lender or to another Lender or (ii) pledges described in the last sentence of subsection (a) above, no assignment shall be made without the approval of the Administrative Agent.this
Appears in 1 contract
Binding Effect; Assignment. (a) This Agreement and the other Loan Documents to which Borrower is a Party party will be binding upon and inure to the benefit of Borrower, the Administrative Agent, each of the Lenders, Lenders and their respective successors and assigns, except that that, Borrower may not assign its rights hereunder or thereunder or any interest herein or therein without the prior written consent of all the Lenders. Each Lender represents that it is not acquiring its Note with a view to the distribution thereof within the meaning of the Securities Act of 1933, as amended (subject to Lenders and any requirement that disposition of such Note must attempted assignment shall be within the control of such Lender)void. Any Lender may at any time pledge its Note or any other instrument evidencing its rights as a Lender under this Agreement to a Federal Reserve BankLender, but no such pledge shall release that Lender from its obligations hereunder or grant to such Federal Reserve Bank Lender the rights of a Lender hereunder absent foreclosure of such pledge.
(b) From time to time following the Closing Date, each Lender may assign to one or more Eligible Assignees all or any portion of its rights and obligations under this Agreement (including all or a portion Pro Rata Share of its Commitment, the Advances owing to it and the Note or Notes held by it)Commitment and/or Extensions of Credit; provided that, subject to subsection (f) below, that (i) such Eligible Assigneeassignment, if not then to a Lender or an Affiliate of the assigning Lender, shall be approved consented to by Borrower (with notice to Guarantor as, and subject to, the provisions of paragraph 7 of the Guaranty) at all times other than during the existence of a Default or Event of Default and Administrative Agent and Issuing Lender (which approval of Borrower (neither of which approvals shall not be unreasonably withheld or delayed), (ii) such assignment shall be evidenced by an Assignment and Acceptance, a copy of which a duly signed and completed Notice of Assignment and Acceptance shall be furnished delivered to the Administrative Agent as hereinbelow providedAgent, (iii) except in the case of an assignment to an Affiliate of the assigning Lender, to another Lender or of the entire remaining rights and obligations Commitment of the assigning Lender under this AgreementLender, the assignment shall not assign a portion of such assigning Lender’s Commitments and/or Advances owing to such assigning Lender that is Pro Rata Share equivalent to less than $3,000,000the Minimum Amount therefor, (iv) after giving effect to such assignment, the assigning Lender continues to hold the Minimum Amount, and (ivv) the effective date of any such assignment shall be as specified in the Notice of Assignment and Acceptance, but not earlier than the date which is five (5) Banking Business Days after the date the Administrative Agent has received the Notice of Assignment and Acceptance. Upon the effective date acceptance by Administrative Agent of such Notice Assignment and AcceptanceAcceptance and consent thereto by Administrative Agent and Issuing Lender and payment of the requisite fee described below, the Eligible Assignee named therein shall be a Lender for all purposes of this Agreement, with the Commitments and/or Advances Pro Rata Share therein set forth and, to the extent of such Commitments and/or AdvancesPro Rata Share, the assigning Lender shall be released from its further obligations under this Agreement. Borrower agrees that it shall execute and deliver upon request (against delivery by the assigning Lender to Borrower of such Lender’s Notesany Note) to such assignee Lender, one or more Notes evidencing that assignee Lender’s Commitments and/or Advances's Pro Rata Share, and to the assigning LenderLender if requested, one or more Notes evidencing the remaining balance of the Commitments and/or Advances Pro Rata Share retained by the assigning Lender. Administrative Agent's consent to and acceptance of any assignment shall not be deemed to constitute any representation or warranty by any Administrative Agent-Related Person as to any matter.
(c) By executing and delivering an Assignment and Acceptance, the Eligible Assignee thereunder acknowledges and agrees that: (i) other than the representation and warranty that it is the legal and beneficial owner of the rights and obligations hereunder being assigned thereby free and clear of any adverse claim, the assigning Lender has made 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 or sufficiency of this Agreement or any other Loan Document; (ii) the assigning Lender has made no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance by Borrower of the Obligations; (iii) it has received a copy of this Agreement, together with copies of the most recent financial statements delivered pursuant to Section 7.1 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) it will, independently and without reliance upon the Administrative Agent or any Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) it appoints and authorizes the Administrative Agent to take such action and to exercise such powers under this Agreement as are delegated to the Administrative Agent by this Agreement; and (vi) 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.
(d) The Administrative Agent shall maintain at the Administrative Agent’s Office a copy of each Assignment and Acceptance delivered to it and a register (the “Register”) of the names and address of each of the Lenders and the Pro Rata Share of the Commitments held by each Lender, giving effect to each Assignment and Acceptance. The Register shall be available during normal business hours for inspection by Borrower or any Lender upon reasonable prior notice to the Administrative Agent. After receipt of a completed Notice of Assignment and Acceptance executed by any Lender and an Eligible AssigneeAcceptance, and receipt of an assignment fee of $3,500 from such Lender or Eligible AssigneeAssignee (including Affiliates of assigning Lenders), the Administrative Agent shall, promptly following the effective date thereof, provide to Borrower and the Lenders a revised Schedule 1.1 11.02 giving effect thereto. Borrower, the Administrative Agent and the Lenders shall deem and treat the Persons listed as Lenders in the Register as the holders and owners of the Pro Rata Shares of the Revolving Facility listed therein for all purposes hereof, and no assignment or transfer of any Lender’s rights and obligations hereunder shall be effective, in each case unless and until an Assignment and Acceptance effecting the assignment or transfer thereof shall have been accepted by the Administrative Agent and recorded in the Register as provided above. Prior to such recordation, all amounts owed with respect to the applicable Pro Rata Share of the Revolving Facility shall be owed to the Lender listed in the Register as the owner thereof, and any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is listed in the Register as a Lender shall be conclusive and binding on any subsequent holder, assignee or transferee of the corresponding Pro Rata Share of the Revolving Facility.
(ed) Each Lender may from time to time grant participations to one or more banks or other financial institutions in or to Person (including another Lender) all or a any portion of its rights Pro Rata Share of its Commitment and/or obligations under this AgreementExtensions of Credit; provided, however, that (i) such Lender’s 's obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) the participating banks or other financial institutions shall not be a Lender hereunder for any purpose except, if the participation agreement so provides, for the purposes of Sections 3.5, 3.6, 11.11 and 11.21 Section 4 (but only to the extent that the cost of such benefits to Borrower does not exceed the cost which Borrower would have incurred in respect of the such Lender granting such participation absent the participation) and subject to Sections 11.05 and 11.06, (iv) Borrower, the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s 's rights and obligations under this Agreement, (v) the participation interest shall be expressed as a percentage of the granting Lender’s Pro Rata Share of the Revolving Facility as it then exists and shall not restrict an increase in the Revolving Facility (or the aggregate Commitments pertaining thereto), Commitment or in the granting Lender’s rights and obligations hereunder's Pro Rata Share, so long as the amount of the participation interest is not affected thereby thereby, and (vi) the consent of the holder of such participation interest shall not be required for amendments or waivers of provisions of the Loan Documents other than those Documents; provided, however, that the assigning Lender may, in any agreement with a participant, give such participant the right to consent to any matter which (A) extend any Amortization Date, any applicable extends the Maturity Date as to such participant or any other date upon which any payment of money is due to the Lenderssuch participant, (B) reduce reduces the rate of interest on the Notesowing to such participant, any fee or any other monetary amount payable owing to the Lenderssuch participant, or (C) reduce reduces the amount of any installment of principal due under the Notes, or (D) release any Guarantor from its Guarantyowing to such participant.
(f) Borrower agrees that upon the occurrence and during the continuance of any Event of Default, each Lender shall be entitled to assign its rights hereunder and under the Loan Documents, or grant participation interests in its rights under this Agreement and the Loan Documents, to any Person, in whole or in any part thereof, notwithstanding any provisions contained herein (including those set forth in subsection (b) above) or in any other Loan Document to the contrary, except that, other than (i) assignments by a Lender to an Affiliate of such Lender or to another Lender or (ii) pledges described in the last sentence of subsection (a) above, no assignment shall be made without the approval of the Administrative Agent.
Appears in 1 contract
Binding Effect; Assignment. (a) This 12.8.1 Subject to the terms of Section 10, this Agreement and the other Loan Documents to which Borrower is a Party party will be binding upon and inure to the benefit of Borrower, the Administrative Agent, each of the Lenders, Lenders and their respective successors and assigns, except that Borrower may not assign its rights hereunder or thereunder or any interest herein or therein without the prior written consent of all the Lenders. Each Lender represents that it is not acquiring its Note with a view to the distribution thereof within the meaning of the Securities Act of 1933, as amended (subject to any requirement that disposition of such Note must be within the control of such Lender). Any Lender may at any time pledge its Note or any other instrument evidencing its rights as a Lender lender under this Agreement to a Federal Reserve Bank, but no such pledge shall release that Lender from its obligations hereunder or grant to such Federal Reserve Bank the rights of a Lender hereunder absent foreclosure of such pledge.
(b) 12.8.2 From time to time following the Closing Date, each Lender may assign to one or more Eligible Assignees all or any portion of its rights and obligations under this Agreement (including all or a portion Pro Rata Share of its the Revolving Commitment, the Advances owing to it and the Note or Notes held by it); provided that, subject to subsection that (f) below, (ia) such Eligible Assignee, if not then a Lender or an Affiliate of the assigning Lender, assignment shall be approved by the Administrative Agent and Borrower (neither and, provided no Default or Event of Default then exists, Borrower, which approvals approval(s) shall not be unreasonably withheld withheld, conditioned or delayed), ; (iib) such assignment shall be evidenced by an a Commitment Assignment and Acceptance, a copy of which shall be furnished to the Administrative Agent as hereinbelow provided, provided and made available to Borrower upon its request; (iiic) except in the case of an assignment (i) to an Affiliate of the assigning Lender, Lender or to another Lender or (ii) of the entire remaining rights and obligations Revolving Commitment of the assigning Lender under this AgreementLender, the assignment shall not assign a portion Pro Rata Share of such assigning Lender’s the Revolving Commitments and/or Advances owing to such assigning Lender that is equivalent to less than $3,000,000, and 5,000,000; (ivd) the effective date of any such assignment shall be as specified in the Commitment Assignment and Acceptance, but not earlier than the date which is five (5) Banking Business Days after the date the Administrative Agent has received the Commitment Assignment and Acceptance; and (e) such Eligible Assignee shall execute an Alternative Dispute Resolution Agreement, in form and substance satisfactory to Agent. Upon the effective date of such Commitment Assignment and Acceptance, the Eligible Assignee named therein shall be a Lender for all purposes of this Agreement, with the Pro Rata Share of the Revolving Commitments and/or Advances therein set forth and, to the extent of such Commitments and/or AdvancesPro Rata Share, the assigning Lender shall be released from its further obligations under this Agreement. Borrower agrees that it shall execute and deliver (against delivery by the assigning Lender to Borrower of such Lender’s Notesits Revolving Note) to such assignee Lender, Notes a Revolving Note evidencing that assignee Lender’s Commitments and/or Advances, and to the assigning Lender, Notes evidencing the remaining balance of the Commitments and/or Advances retained by the assigning Lender.
(c) By executing and delivering an Assignment and Acceptance, the Eligible Assignee thereunder acknowledges and agrees that: (i) other than the representation and warranty that it is the legal and beneficial owner of the rights and obligations hereunder being assigned thereby free and clear of any adverse claim, the assigning Lender has made 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 or sufficiency of this Agreement or any other Loan Document; (ii) the assigning Lender has made no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance by Borrower of the Obligations; (iii) it has received a copy of this Agreement, together with copies of the most recent financial statements delivered pursuant to Section 7.1 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) it will, independently and without reliance upon the Administrative Agent or any Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) it appoints and authorizes the Administrative Agent to take such action and to exercise such powers under this Agreement as are delegated to the Administrative Agent by this Agreement; and (vi) 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.
(d) The Administrative Agent shall maintain at the Administrative Agent’s Office a copy of each Assignment and Acceptance delivered to it and a register (the “Register”) of the names and address of each of the Lenders and the Pro Rata Share of the Commitments held by each Lender, giving effect to each Assignment and Acceptance. The Register shall be available during normal business hours for inspection by Borrower or any Lender upon reasonable prior notice to the Administrative Agent. After receipt of a completed Assignment and Acceptance executed by any Lender and an Eligible Assignee, and receipt of an assignment fee of $3,500 from such Lender or Eligible Assignee, the Administrative Agent shall, promptly following the effective date thereof, provide to Borrower and the Lenders a revised Schedule 1.1 giving effect thereto. Borrower, the Administrative Agent and the Lenders shall deem and treat the Persons listed as Lenders in the Register as the holders and owners of the Pro Rata Shares of the Revolving Facility listed therein for all purposes hereof, and no assignment or transfer of any Lender’s rights and obligations hereunder shall be effective, in each case unless and until an Assignment and Acceptance effecting the assignment or transfer thereof shall have been accepted by the Administrative Agent and recorded in the Register as provided above. Prior to such recordation, all amounts owed with respect to the applicable Pro Rata Share of the Revolving Facility shall be owed to the Lender listed in the Register as the owner thereof, and any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is listed in the Register as a Lender shall be conclusive and binding on any subsequent holder, assignee or transferee of the corresponding Pro Rata Share of the Revolving Facility.
(e) Each Lender may from time to time grant participations to one or more banks or other financial institutions in or to all or a portion of its rights and/or obligations under this Agreement; provided, however, that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) the participating banks or other financial institutions shall not be a Lender hereunder for any purpose except, if the participation agreement so provides, for the purposes of Sections 3.5, 3.6, 11.11 and 11.21 but only to the extent that the cost of such benefits to Borrower does not exceed the cost which Borrower would have incurred in respect of the Lender granting such participation absent the participation, (iv) Borrower, the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement, (v) the participation interest shall be expressed as a percentage of the granting Lender’s Pro Rata Share of the Revolving Facility as it then exists Commitment, and shall not restrict an increase in the Revolving Facility (or the aggregate Commitments pertaining thereto), or in the granting Lender’s rights and obligations hereunder, so long as the amount of the participation interest is not affected thereby and (vi) the consent of the holder of such participation interest shall not be required for amendments or waivers of provisions of the Loan Documents other than those which (A) extend any Amortization Date, any applicable Maturity Date or any other date upon which any payment of money is due to the Lendersassigning Lender, (B) reduce a Revolving Note evidencing the rate of interest on Pro Rata Share retained by the Notes, any fee or any other monetary amount payable to the Lenders, (C) reduce the amount of any installment of principal due under the Notes, or (D) release any Guarantor from its Guarantyassigning Lender.
(f) Borrower agrees that upon the occurrence and during the continuance of any Event of Default, each Lender shall be entitled to assign its rights hereunder and under the Loan Documents, or grant participation interests in its rights under this Agreement and the Loan Documents, to any Person, in whole or in any part thereof, notwithstanding any provisions contained herein (including those set forth in subsection (b) above) or in any other Loan Document to the contrary, except that, other than (i) assignments by a Lender to an Affiliate of such Lender or to another Lender or (ii) pledges described in the last sentence of subsection (a) above, no assignment shall be made without the approval of the Administrative Agent.
Appears in 1 contract
Samples: Loan Agreement (Dts, Inc.)
Binding Effect; Assignment. (a) This Agreement and the other Loan Documents to which Borrower is a Party will be binding upon and inure to the benefit of Borrower, the Administrative Agent, each of the Lenders, and their respective successors and assigns, except that Borrower may not assign its rights hereunder or thereunder or any interest herein or therein without the prior written consent of all the Lenders. Each Lender represents that it is not acquiring its Note with a view to the distribution thereof within the meaning of the Securities Act of 1933, as amended (subject to any requirement that disposition of such Note must be within the control of such Lender). Any Lender may at any time pledge its Note or any other instrument evidencing its rights as a Lender under this Agreement to a Federal Reserve Bank, but no such pledge shall release that Lender from its obligations hereunder or grant to such Federal Reserve Bank the rights of a Lender hereunder absent foreclosure of such pledge.
(b) From time to time following the Closing Date, each Lender may assign to one or more Eligible Assignees all or any portion of its rights and obligations under this Agreement (including all or a portion of its Revolving Commitment, the Advances owing to it and the Note or Notes held by it); provided that, subject to subsection (f) below, (i) such Eligible Assignee, if not then a Lender or an Affiliate of the assigning Lender, shall be approved by the Administrative Agent and Borrower (neither of which approvals shall be unreasonably withheld or delayed), (ii) such assignment shall be evidenced by an Assignment and Acceptance, a copy of which shall be furnished to the Administrative Agent as hereinbelow provided, (iii) except in the case of an assignment to an Affiliate of the assigning Lender, to another Lender or of the entire remaining rights and obligations of the assigning Lender under this Agreement, the assignment shall not assign a portion of such assigning Lender’s 's Commitments and/or Advances owing to such assigning Lender that is equivalent to less than $3,000,0005,000,000, and (iv) the effective date of any such assignment shall be as specified in the Assignment and Acceptance, but not earlier than the date which is five (5) Banking Days after the date the Administrative Agent has received the Assignment and Acceptance. Upon the effective date of such Assignment and Acceptance, the Eligible Assignee named therein shall be a Lender for all purposes of this Agreement, with the Commitments and/or Advances therein set forth and, to the extent of such Commitments and/or Advances, the assigning Lender shall be released from its further obligations under this Agreement. Borrower agrees that it shall execute and deliver (against delivery by the assigning Lender to Borrower of such Lender’s 's Notes) to such assignee Lender, Notes evidencing that assignee Lender’s 's Commitments and/or Advances, and to the assigning Lender, Notes evidencing the remaining balance of the Commitments and/or Advances retained by the assigning Lender.
(c) By executing and delivering an Assignment and Acceptance, the Eligible Assignee thereunder acknowledges and agrees that: (i) other than the representation and warranty that it is the legal and beneficial owner of the rights and obligations hereunder being assigned thereby free and clear of any adverse claim, the assigning Lender has made 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 or sufficiency of this Agreement or any other Loan Document; (ii) the assigning Lender has made no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance by Borrower of the Obligations; (iii) it has received a copy of this Agreement, together with copies of the most recent financial statements delivered pursuant to Section 7.1 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) it will, independently and without reliance upon the Administrative Agent or any Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) it appoints and authorizes the Administrative Agent to take such action and to exercise such powers under this Agreement as are delegated to the Administrative Agent by this Agreement; and (vi) 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.
(d) The Administrative Agent shall maintain at the Administrative Agent’s 's Office a copy of each Assignment and Acceptance delivered to it and a register (the “"Register”") of the names and address of each of the Lenders and the Pro Rata Share of the Commitments held by each Lender, giving effect to each Assignment and Acceptance. The Register shall be available during normal business hours for inspection by Borrower or any Lender upon reasonable prior notice to the Administrative Agent. After receipt of a completed Assignment and Acceptance executed by any Lender and an Eligible Assignee, and receipt of an assignment fee of $3,500 from such Lender or Eligible Assignee, the Administrative Agent shall, promptly following the effective date thereof, provide to Borrower and the Lenders a revised Schedule 1.1 giving effect thereto. Borrower, the Administrative Agent and the Lenders shall deem and treat the Persons listed as Lenders in the Register as the holders and owners of the Pro Rata Shares of the Revolving Facility Facilities listed therein for all purposes hereof, and no assignment or transfer of any Lender’s 's rights and obligations hereunder shall be effective, in each case unless and until an Assignment and Acceptance effecting the assignment or transfer thereof shall have been accepted by the Administrative Agent and recorded in the Register as provided above. Prior to such recordation, all amounts owed with respect to the applicable Pro Rata Share Shares of the Revolving Facility Facilities shall be owed to the Lender listed in the Register as the owner thereof, and any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is listed in the Register as a Lender shall be conclusive and binding on any subsequent holder, assignee or transferee of the corresponding Pro Rata Share Shares of any of the Revolving FacilityFacilities.
(e) Each Lender may from time to time grant participations to one or more banks or other financial institutions in or to all or a portion of its rights and/or obligations under this Agreement; provided, however, that (i) such Lender’s 's obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) the participating banks or other financial institutions shall not be a Lender hereunder for any purpose except, if the participation agreement so provides, for the purposes of Sections 3.5, 3.6, 11.11 and 11.21 but only to the extent that the cost of such benefits to Borrower does not exceed the cost which Borrower would have incurred in respect of the Lender granting such participation absent the participation, (iv) Borrower, the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s 's rights and obligations under this Agreement, (v) the participation interest shall be expressed as a percentage of the granting Lender’s 's Pro Rata Share of the Revolving each applicable Facility as it then exists and shall not restrict an increase in the Revolving Facility Facilities (or the aggregate Commitments pertaining thereto), or in the granting Lender’s 's rights and obligations hereunder, so long as the amount of the participation interest is not affected thereby and (vi) the consent of the holder of such participation interest shall not be required for amendments or waivers of provisions of the Loan Documents other than those which (A) extend any Amortization Date, any applicable Maturity Date or any other date upon which any payment of money is due to the Lenders, (B) reduce the rate of interest on the Notes, any fee or any other monetary amount payable to the Lenders, (C) reduce the amount of any installment of principal due under the Notes, or (D) release any Guarantor from its Guaranty.
(f) Borrower agrees that upon the occurrence and during the continuance of any Event of Default, each Lender shall be entitled to assign its rights hereunder and under the Loan Documents, or grant participation interests in its rights under this Agreement and the Loan Documents, to any Person, in whole or in any part thereof, notwithstanding any provisions contained herein (including those set forth in subsection (b) above) or in any other Loan Document to the contrary, except that, other than (i) assignments by a Lender to an Affiliate of such Lender or to another Lender or (ii) pledges described in the last sentence of subsection (a) above, no assignment shall be made without the approval of the Administrative Agent.
Appears in 1 contract
Binding Effect; Assignment. (aA) This Agreement and the other Loan Documents to which Borrower is a Party will shall be binding upon and inure to the benefit of Borrower, the Administrative Agent, each of the Lenders, and Banks and their respective successors and assigns, except that Borrower may shall not have the right to assign its rights hereunder or thereunder or any interest herein or therein without the prior written consent of all each Bank.
(B) Each Bank may, in the Lenders. Each Lender represents that it is not acquiring ordinary course of its Note business and in accordance with a view to the distribution thereof within the meaning of the Securities Act of 1933applicable law, as amended (subject to any requirement that disposition of such Note must be within the control of such Lender). Any Lender may at any time pledge its Note or any other instrument evidencing its rights as a Lender under this Agreement to a Federal Reserve Bank, but no such pledge shall release that Lender from its obligations hereunder or grant to such Federal Reserve Bank the rights of a Lender hereunder absent foreclosure of such pledge.
(b) From time to time following the Closing Date, each Lender may assign to one or more Eligible Assignees all or any portion of its rights and obligations under this Agreement (including all or a portion of its Commitment, the Advances owing to it and the Note or Notes held by it); provided that, subject to subsection (f) below, (i) such Eligible Assignee, if not then a Lender or an Affiliate of the assigning Lender, shall be approved by the Administrative Agent and Borrower (neither of which approvals shall be unreasonably withheld or delayed), (ii) such assignment shall be evidenced by an Assignment and Acceptance, a copy of which shall be furnished to the Administrative Agent as hereinbelow provided, (iii) except in the case of an assignment to an Affiliate of the assigning Lender, to another Lender or of the entire remaining rights and obligations of the assigning Lender under this Agreement, the assignment shall not assign a portion of such assigning Lender’s Commitments and/or Advances owing to such assigning Lender that is equivalent to less than $3,000,000, and (iv) the effective date of any such assignment shall be as specified in the Assignment and Acceptance, but not earlier than the date which is five (5) Banking Days after the date the Administrative Agent has received the Assignment and Acceptance. Upon the effective date of such Assignment and Acceptance, the Eligible Assignee named therein shall be a Lender for all purposes of this Agreement, with the Commitments and/or Advances therein set forth and, to the extent of such Commitments and/or Advances, the assigning Lender shall be released from its further obligations under this Agreement. Borrower agrees that it shall execute and deliver (against delivery by the assigning Lender to Borrower of such Lender’s Notes) to such assignee Lender, Notes evidencing that assignee Lender’s Commitments and/or Advances, and to the assigning Lender, Notes evidencing the remaining balance of the Commitments and/or Advances retained by the assigning Lender.
(c) By executing and delivering an Assignment and Acceptance, the Eligible Assignee thereunder acknowledges and agrees that: (i) other than the representation and warranty that it is the legal and beneficial owner of the rights and obligations hereunder being assigned thereby free and clear of any adverse claim, the assigning Lender has made 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 or sufficiency of this Agreement or any other Loan Document; (ii) the assigning Lender has made no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance by Borrower of the Obligations; (iii) it has received a copy of this Agreement, together with copies of the most recent financial statements delivered pursuant to Section 7.1 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) it will, independently and without reliance upon the Administrative Agent or any Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) it appoints and authorizes the Administrative Agent to take such action and to exercise such powers under this Agreement as are delegated to the Administrative Agent by this Agreement; and (vi) 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.
(d) The Administrative Agent shall maintain at the Administrative Agent’s Office a copy of each Assignment and Acceptance delivered to it and a register (the “Register”) of the names and address of each of the Lenders and the Pro Rata Share of the Commitments held by each Lender, giving effect to each Assignment and Acceptance. The Register shall be available during normal business hours for inspection by Borrower or any Lender upon reasonable prior notice to the Administrative Agent. After receipt of a completed Assignment and Acceptance executed by any Lender and an Eligible Assignee, and receipt of an assignment fee of $3,500 from such Lender or Eligible Assignee, the Administrative Agent shall, promptly following the effective date thereof, provide to Borrower and the Lenders a revised Schedule 1.1 giving effect thereto. Borrower, the Administrative Agent and the Lenders shall deem and treat the Persons listed as Lenders in the Register as the holders and owners of the Pro Rata Shares of the Revolving Facility listed therein for all purposes hereof, and no assignment or transfer of any Lender’s rights and obligations hereunder shall be effective, in each case unless and until an Assignment and Acceptance effecting the assignment or transfer thereof shall have been accepted by the Administrative Agent and recorded in the Register as provided above. Prior to such recordation, all amounts owed with respect to the applicable Pro Rata Share of the Revolving Facility shall be owed to the Lender listed in the Register as the owner thereof, and any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is listed in the Register as a Lender shall be conclusive and binding on any subsequent holder, assignee or transferee of the corresponding Pro Rata Share of the Revolving Facility.
(e) Each Lender may from time to time grant participations to one or more banks or other financial institutions in or to entities ("Purchasers") all or a portion any part of the Loan and its rights and/or and obligations under its Note and under this Agreement, which assignment shall be in an amount of not less than $5,000,000 pursuant to a form of assignment acceptable to Agent, such Bank and such Purchaser. Unless an Event of Default has occurred and is continuing, the consent of Borrower shall be required prior to an assignment becoming effective with respect to a Purchaser which is not an affiliate of Bank. Such consent shall not be unreasonably withheld. The Bank making such an Assignment shall pay the Administrative Agent an administrative fee in connection with each such assignment equal to $3,500.
(C) Upon delivery to Agent and Borrower of a notice of assignment, together with any consent required by this Section 8.8, such assignment shall become effective on the effective date specified in such notice. On and after the effective date of such assignment, such Purchaser shall for all purposes be a Bank party to this Agreement and shall have all the rights and obligations of a Bank under this Agreement, to the same extent as if it were an original party hereto, and no further consent or action by the Borrower or Bank shall be required to release the transferor Bank with respect to the percentage of the Loan assigned to such Purchaser. Upon the consummation of any assignment to a Purchaser pursuant to this Section 8.8, the transferor Bank and Borrower shall make appropriate arrangements so that a replacement Note is issued to such transferor Bank and a new Note or, as appropriate, a replacement Note, is issued to such Purchaser, in each case in principal amounts reflecting its pro rata share of the Loans, as adjusted pursuant to such assignment.
(D) The Borrower authorizes each Bank to disclose to any participant (pursuant to Section 8.7) or Purchaser or any other entity acquiring an interest in this Agreement or the Note by operation of law (each a "Transferee") and any prospective Transferee any and all information in Bank's possession concerning the creditworthiness of Borrower and its subsidiaries.
(E) This Agreement and all covenants, representations and warranties made herein and/or in any of the other Financing Documents shall survive the making of the Loan, the execution and delivery of the Financing Documents and shall continue in effect so long as any amounts payable under or in connection with any of the Financing Documents or any other Indebtedness of Borrower to Agent or any Bank remains unpaid or the Commitment remains outstanding; provided, however, that (i) such Lender’s obligations under this Agreement Section 8.6 shall survive and remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) the participating banks or other financial institutions shall not be a Lender hereunder for any purpose except, if the participation agreement so provides, for the purposes of Sections 3.5, 3.6, 11.11 in full force and 11.21 but only to the extent that the cost of such benefits to Borrower does not exceed the cost which Borrower would have incurred in respect effect after expiration of the Lender granting such participation absent the participation, (iv) Borrower, the Administrative Agent Commitment and the other Lenders shall continue to deal solely and directly with such Lender repayment in full of all amounts payable under or in connection with such Lender’s rights and obligations under this Agreement, (v) the participation interest shall be expressed as a percentage all of the granting Lender’s Pro Rata Share of the Revolving Facility as it then exists Financing Documents and shall not restrict an increase in the Revolving Facility (or the aggregate Commitments pertaining thereto), or in the granting Lender’s rights and obligations hereunder, so long as the amount of the participation interest is not affected thereby and (vi) the consent of the holder of such participation interest shall not be required for amendments or waivers of provisions of the Loan Documents other than those which (A) extend any Amortization Date, any applicable Maturity Date or any other date upon which any payment of money is due to the Lenders, (B) reduce the rate of interest on the Notes, any fee or any other monetary amount payable to the Lenders, (C) reduce the amount of any installment of principal due under the Notes, or (D) release any Guarantor from its Guarantysuch Indebtedness.
(f) Borrower agrees that upon the occurrence and during the continuance of any Event of Default, each Lender shall be entitled to assign its rights hereunder and under the Loan Documents, or grant participation interests in its rights under this Agreement and the Loan Documents, to any Person, in whole or in any part thereof, notwithstanding any provisions contained herein (including those set forth in subsection (b) above) or in any other Loan Document to the contrary, except that, other than (i) assignments by a Lender to an Affiliate of such Lender or to another Lender or (ii) pledges described in the last sentence of subsection (a) above, no assignment shall be made without the approval of the Administrative Agent.
Appears in 1 contract
Binding Effect; Assignment. (a) This Agreement and the other Loan Documents to which Borrower is a Party will be binding upon and inure to the benefit of Borrower, the Administrative Agent, the Collateral Agent, each of the Lenders, and their respective successors and assigns, except that Borrower may not assign its rights hereunder or thereunder or any interest herein or therein without the prior written consent of all the Lenders. Each Lender represents that it is not acquiring its Note with a view to the distribution thereof within the meaning of the Securities Act of 1933, as amended (subject to any requirement that disposition of such Note must be within the control of such Lender). Any Lender may at any time pledge its Note or any other instrument evidencing its rights as a Lender under this Agreement to a Federal Reserve Bank, but no such pledge shall release that Lender from its obligations hereunder or grant to such Federal Reserve Bank the rights of a Lender hereunder absent foreclosure of such pledge.
(b) From time to time following the Closing Date, each Lender may assign to one or more Eligible Assignees all or any portion of its rights and obligations under this Agreement (including all or a portion Pro Rata Share of its Commitment, the Advances owing to it and the Note or Notes held by it)Commitments; provided that, subject to subsection (f) below, that (i) such Eligible Assignee, if not then a Lender or an Affiliate of the assigning Lender, shall be approved by the Administrative Agent and (if no Event of Default then exists) Borrower (neither of which approvals shall be unreasonably withheld or delayed), (ii) such assignment shall be evidenced by an a Commitment Assignment and Acceptance, a copy of which shall be furnished to the Administrative Agent as hereinbelow provided, (iii) except in the case of an assignment to an Affiliate of the assigning Lender, to another Lender or of the entire remaining rights and obligations Commitments of the assigning Lender under this AgreementLender, the assignment shall not assign a portion Pro Rata Share of such assigning Lender’s the Commitments and/or Advances owing to such assigning Lender that is equivalent to less than $3,000,000, 5,000,000 and (iv) the effective date of any such assignment shall be as specified in the Commitment Assignment and Acceptance, but not earlier than the date which is five (5) Banking Days after the date the Administrative Agent has received the Commitment Assignment and Acceptance. Upon the effective date of such Commitment Assignment and Acceptance, the Eligible Assignee named therein shall be a Lender for all purposes of this Agreement, with the Pro Rata Share of the Commitments and/or Advances therein set forth and, to the extent of such Commitments and/or AdvancesPro Rata Share, the assigning Lender shall be released from its further obligations under this Agreement. Borrower agrees that it shall execute and deliver (against delivery by the assigning Lender to Borrower of such Lender’s its Notes) to such assignee Lender, Notes evidencing that assignee Lender’s Commitments and/or AdvancesPro Rata Share of the Commitments, and to the assigning Lender, Notes evidencing the remaining balance of the Commitments and/or Advances Pro Rata Share retained by the assigning Lender.
(c) By executing and delivering an a Commitment Assignment and Acceptance, the Eligible Assignee thereunder acknowledges and agrees that: (i) other than the representation and warranty that it is the legal and beneficial owner of the rights and obligations hereunder Pro Rata Share of the Commitments being assigned thereby free and clear of any adverse claim, the assigning Lender has made 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 or sufficiency of this Agreement or any other Loan Document; (ii) the assigning Lender has made no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance by Borrower of the Obligations; (iii) it has received a copy of this Agreement, together with copies of the most recent financial statements delivered pursuant to Section 7.1 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Commitment Assignment and Acceptance; (iv) it will, independently and without reliance upon the Administrative Agent, the Collateral Agent or any Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) it appoints and authorizes the Administrative Agent and the Collateral Agent to take such action and to exercise such powers under this Agreement as are delegated to the Administrative Agent and the Collateral Agent by this Agreement; and (vi) 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.
(d) The Administrative Agent shall maintain at the Administrative Agent’s Office a copy of each Commitment Assignment and Acceptance delivered to it and a register (the “Register”) of the names and address of each of the Lenders and the Pro Rata Share of the Commitments held by each Lender, giving effect to each Commitment Assignment and Acceptance. The Register shall be available during normal business hours for inspection by Borrower or any Lender upon reasonable prior notice to the Administrative Agent. After receipt of a completed Commitment Assignment and Acceptance executed by any Lender and an Eligible Assignee, and receipt of an assignment fee of $3,500 from such Lender or Eligible Assignee, the Administrative Agent shall, promptly following the effective date thereof, provide to Borrower and the Lenders a revised Schedule 1.1 giving effect thereto. Borrower, the Administrative Agent, the Collateral Agent and the Lenders shall deem and treat the Persons listed as Lenders in the Register as the holders and owners of the Pro Rata Shares Share of the Revolving Facility Commitments listed therein for all purposes hereof, and no assignment or transfer of any Lender’s rights and obligations hereunder such Pro Rata Share of the Commitments shall be effective, in each case unless and until an a Commitment Assignment and Acceptance effecting the assignment or transfer thereof shall have been accepted by the Administrative Agent and recorded in the Register as provided above. Prior to such recordation, all amounts owed with respect to the applicable Pro Rata Share of the Revolving Facility Commitments shall be owed to the Lender listed in the Register as the owner thereof, and any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is listed in the Register as a Lender shall be conclusive and binding on any subsequent holder, assignee or transferee of the corresponding Pro Rata Share of the Revolving FacilityCommitments.
(e) Each Lender may from time to time grant participations to one or more banks or other financial institutions in or to all or a portion of its rights and/or obligations under this AgreementPro Rata Share of the Commitments; provided, however, that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) the participating banks or other financial institutions shall not be a Lender hereunder for any purpose except, if the participation agreement so provides, for the purposes of Sections 3.53.6, 3.63.7, 11.11 and 11.21 11.22 but only to the extent that the cost of such benefits to Borrower does not exceed the cost which Borrower would have incurred in respect of the such Lender granting such participation absent the participation, (iv) Borrower, the Administrative Agent Agent, the Collateral Agent, and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement, (v) the participation interest shall be expressed as a percentage of the granting Lender’s Pro Rata Share of the Revolving Facility Commitments as it then exists and shall not restrict an increase in the Revolving Facility (or the aggregate Commitments pertaining thereto)Commitments, or in the granting Lender’s rights and obligations hereunderPro Rata Share of the Commitments, so long as the amount of the participation interest is not affected thereby thereby, (vi) the holder of the participation interest shall abide by the confidentiality provisions set forth herein and (vivii) the consent of the holder of such participation interest shall not be required for amendments or waivers of provisions of the Loan Documents other than those which (Aa) extend any Amortization Date, any applicable the Revolving Loan Maturity Date or any other date upon which any payment of money is due to the Lenders, (Bb) reduce the rate of interest on the Notes, any fee or any other monetary amount payable to the Lenders, (Cc) reduce the amount of any installment of principal due under the Notes, or (Dd) release any Guarantor Subsidiary Guaranty, or (E) release all or substantially all of the Collateral from the Lien of the Collateral Documents, except if such release of Collateral occurs in connection with a Disposition permitted under Section 6.2 or grant of a purchase-money Lien of the type specified in clause (s) of the definition of “Permitted Encumbrances” (unless the holder of such Lien does not prohibit a subordinate Lien on the acquired property or assets, in which case the Collateral Agent shall subordinate its Guaranty.
(f) Borrower agrees that upon Lien on such acquired property or assets in a manner acceptable to the occurrence and during holder of the continuance purchase-money Lien without the need for the consent of any Event of Default, each Lender shall be entitled to assign its rights hereunder and under the Loan Documents, or grant participation interests in its rights under this Agreement and the Loan Documents, to any PersonLender), in whole which case such release shall not require the consent of any of the Lenders or in of any part thereof, notwithstanding any provisions contained herein (including those set forth in subsection (b) above) or in any other Loan Document to the contrary, except that, other than (i) assignments by holder of a Lender to an Affiliate of such Lender or to another Lender or (ii) pledges described participation interest in the last sentence of subsection (a) above, no assignment shall be made without the approval of the Administrative AgentCommitments.
Appears in 1 contract
Binding Effect; Assignment. (a) This Agreement and the other Loan Documents to which Borrower is a Party will shall be binding upon and shall inure to the benefit of Borrower, the Administrative Agent, each of the Lenders, parties hereto and thereto and their respective successors and assigns, except that Borrower and/or its Affiliates may not assign its their rights hereunder or thereunder or any interest herein or therein without the prior written consent of all the LendersBanks. Any assignment by the Borrower or its Affiliates without the prior written consent of the Banks shall be void, provided that no Person other than the Banks shall have any rights under this sentence. Each Lender Bank represents that it is not acquiring its Note with a view to the distribution thereof within the meaning of the Securities Act of 1933, as amended (subject to any requirement that disposition of such its Note must be within the control of such LenderBank). Any Lender Bank may at any time pledge its Note or any other instrument evidencing its rights as a Lender Bank under this Agreement to a Federal Reserve Bank, but no such pledge shall release that Lender Bank from its obligations hereunder or grant to such Federal Reserve Bank the rights of a Lender Bank hereunder absent foreclosure of such pledge.
(b) From time to time following the Closing Restatement Date, each Lender Bank may assign to one or more Eligible Assignees all or any portion of its rights and obligations under this Agreement (including all or a portion of its Commitment, the Advances owing to it and the Note or Notes held by it)Pro Rata Share; provided that, subject to subsection (f) below, that (i) such Eligible Assignee, if not then a Lender Bank or an Affiliate of the assigning LenderBank, shall be approved by each of the Administrative Agent and Borrower (neither of which approvals approval shall not be unreasonably withheld or delayed) and Borrower (which approval shall not be unreasonably withheld or delayed or, if an Event of Default has occurred and remains continuing, required), (ii) such assignment shall be evidenced by an a Commitment Assignment and Acceptance, a copy of which shall be furnished to the Administrative Agent as hereinbelow providedAgent, (iii) except in the case of an assignment to an Affiliate of the assigning LenderBank, to another Lender Bank or of the entire remaining rights and obligations Commitment of the assigning Lender under this AgreementBank, the assignment shall be of a Pro Rata Share not assign a portion of such assigning Lender’s Commitments and/or Advances owing to such assigning Lender that is equivalent to less than $3,000,0002,000,000, and (iv) the effective date of any such assignment shall be as specified in the Commitment Assignment and Acceptance, but not earlier than the date which is five (5) Banking Days after the date the Administrative Agent has received the Commitment Assignment and Acceptance. Upon the effective date of such Commitment Assignment and Acceptance, the Eligible Assignee named therein shall be a Lender Bank for all purposes of this Agreement, with the Commitments and/or Advances therein Pro Rata Share set forth therein and, to the extent of such Commitments and/or AdvancesPro Rata Share, the assigning Lender Bank shall be released from its further obligations under this Agreement. Borrower agrees that it shall execute and deliver (against delivery by the assigning Lender Bank to Borrower of such Lender’s Notesits Note) to such assignee LenderBank, Notes a Note evidencing that assignee Lender’s Commitments and/or AdvancesBank's Pro Rata Share, and to the assigning LenderBank, Notes a Note evidencing the remaining balance of the Commitments and/or Advances Pro Rata Share retained by the assigning LenderBank.
(c) By executing and delivering an a Commitment Assignment and Acceptance, the Eligible Assignee thereunder acknowledges and agrees that: (i) other than the representation and warranty that it is the legal and beneficial owner of the rights and obligations hereunder Pro Rata Share being assigned thereby free and clear of any adverse claim, the assigning Lender Bank has made 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 or sufficiency of this Agreement or any other Loan Document; (ii) the assigning Lender Bank has made no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance by Borrower of the Obligations; (iii) it has received a copy of this Agreement, together with copies of the most recent financial statements delivered pursuant to Section 7.1 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Commitment Assignment and Acceptance; (iv) it will, independently and without reliance upon the Administrative Agent or any Lender Bank and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) it appoints and authorizes the Administrative Agent to take such action and to exercise such powers under this Agreement as are delegated to the Administrative Agent by this Agreement; and (vi) 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 LenderBank.
(d) The Administrative Agent shall maintain at the Administrative Agent’s 's Office a copy of each Commitment Assignment and Acceptance delivered to it and a register (the “Register”) of the names and address of each of the Lenders and the Pro Rata Share of the Commitments held by each Lender, giving effect to each Assignment and Acceptance. The Register shall be available during normal business hours for inspection by Borrower or any Lender upon reasonable prior notice to the Administrative Agentit. After receipt of a completed Commitment Assignment and Acceptance executed by any Lender Bank and an Eligible Assignee, and receipt of an assignment fee of $3,500 2,000 from such Lender or Eligible Assignee, the Administrative Agent shall, promptly following the effective date thereof, shall provide notice thereof to Borrower and the Lenders a revised Schedule 1.1 giving effect thereto. Borrower, the Administrative Agent and the Lenders shall deem and treat the Persons listed as Lenders in the Register as the holders and owners of the Pro Rata Shares of the Revolving Facility listed therein for all purposes hereof, and no assignment or transfer of any Lender’s rights and obligations hereunder shall be effective, in each case unless and until an Assignment and Acceptance effecting the assignment or transfer thereof shall have been accepted by the Administrative Agent and recorded in the Register as provided above. Prior to such recordation, all amounts owed with respect to the applicable Pro Rata Share of the Revolving Facility shall be owed to the Lender listed in the Register as the owner thereof, and any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is listed in the Register as a Lender shall be conclusive and binding on any subsequent holder, assignee or transferee of the corresponding Pro Rata Share of the Revolving FacilityBanks.
(e) Each Lender Bank may grant participations from time to time grant participations in a portion of its Pro Rata Share to one or more banks or other financial institutions in or to all or a portion of its rights and/or obligations under this Agreement(including another Bank); provided, however, that (i) the holder of such Lender’s participation interest, if not then a Bank or an Affiliate of the granting Bank, shall be approved by the Borrower (which approval shall not be unreasonably withheld or delayed or, if an Event of Default has occurred and remains continuing, required), (ii) such Bank's obligations under this Agreement shall remain unchanged, (iiiii) such Lender Bank shall remain solely responsible to the other parties hereto for the performance of such obligations, (iiiiv) the participating banks or other financial institutions shall not be a Lender Bank hereunder for any purpose except, if the participation agreement so provides, for the purposes of Sections 3.53.6, 3.63.7, 11.11 and 11.21 but only to the extent that the cost of such benefits to Borrower does not exceed the cost which Borrower would have incurred in respect of the Lender granting such participation absent the participation11.25, (ivv) Borrower, the Administrative Agent Agent, the Issuing Bank and the other Lenders Banks shall continue to deal solely and directly with such Lender Bank in connection with such Lender’s Bank's rights and obligations under this Agreement, (vvi) the participation interest shall be expressed as a percentage of the granting Lender’s Bank's Pro Rata Share of the Revolving Facility as it they then exists exist and shall not restrict an increase in the Revolving Facility (or the aggregate Commitments pertaining thereto)Commitment, or in the granting Lender’s rights and obligations hereunderBank's Pro Rata Share, so long as the amount of the participation interest is not affected thereby and (vivii) the consent of the holder of such participation interest shall not be required for amendments or waivers of provisions of the Loan Documents other than those which (A) extend any Amortization the Maturity Date, any applicable Maturity Reduction Date or any other date upon which any payment of money is any principal, fees or interest are due to the LendersBanks, (B) reduce any installment of principal due with respect to the Notes, the rate of interest on the Notes, or any fee or any other monetary amount payable to the LendersBanks, or (C) reduce increase the amount of any installment the Commitment (only if the holder of principal due under the Notes, or (D) release any Guarantor from its Guarantysuch participation interest's commitment is also increased).
(f) Borrower agrees that upon the occurrence and during the continuance of any Event of Default, each Lender shall be entitled to assign its rights hereunder and under the Loan Documents, or grant participation interests Notwithstanding anything in its rights under this Agreement and the Loan Documents, to any Person, in whole or in any part thereof, notwithstanding any provisions contained herein (including those set forth in subsection (b) above) or in any other Loan Document Section to the contrary, except thatthe rights of the Banks to make assignments of, other than (i) assignments by a Lender to an Affiliate and grant participations in, their Pro Rata Shares of such Lender or to another Lender or (ii) pledges described in the last sentence of subsection (a) above, no assignment Commitment shall be made without subject to the approval of any Gaming Board, to the Administrative Agentextent required by applicable Gaming Laws.
Appears in 1 contract
Binding Effect; Assignment. (aA) This Agreement and the other Loan Documents to which Borrower is a Party will shall be binding upon and inure to the benefit of the Borrower, the Administrative Collateral Agent, the Paying Agent and the Facility Agent and each of the LendersLender, and their respective successors and assigns, except that the Borrower may shall not have the right to assign its rights hereunder or thereunder or any interest herein or therein without the prior written consent of all the Facility Agent and the Lenders, and any assignment by the Borrower in violation of this Section 10.8 shall be null and void. Each Lender represents that it is not acquiring its Note with a view Notwithstanding anything to the distribution thereof within contrary in the meaning first sentence of the Securities Act of 1933this Section 10.8, as amended (subject to any requirement that disposition of such Note must be within the control of such Lender). Any Lender may at any time pledge its Note time, without the consent of the Borrower or the Facility Agent, assign all or any other instrument evidencing portion of its rights as a Lender and obligations under this Agreement and any Loan Note to a Federal Reserve Bank; provided, but that no such assignment or pledge shall release that the transferor Lender from its obligations hereunder or grant to such Federal Reserve Bank the rights of a Lender hereunder absent foreclosure of such pledge.
(b) From time to time following the Closing Date, each hereunder. Each Lender may assign to one or more Eligible Assignees all or any part or portion of its rights and obligations under this Agreement (including all of, or a portion of its Commitment, the Advances owing to it and the Note or Notes held by it); provided that, subject to subsection (f) below, (i) such Eligible Assignee, if not then a Lender or an Affiliate of the assigning Lender, shall be approved by the Administrative Agent and Borrower (neither of which approvals shall be unreasonably withheld or delayed), (ii) such assignment shall be evidenced by an Assignment and Acceptance, a copy of which shall be furnished to the Administrative Agent as hereinbelow provided, (iii) except in the case of an assignment to an Affiliate of the assigning Lender, to another Lender or of the entire remaining rights and obligations of the assigning Lender under this Agreement, the assignment shall not assign a portion of such assigning Lender’s Commitments and/or Advances owing to such assigning Lender that is equivalent to less than $3,000,000, and (iv) the effective date of any such assignment shall be as specified in the Assignment and Acceptance, but not earlier than the date which is five (5) Banking Days after the date the Administrative Agent has received the Assignment and Acceptance. Upon the effective date of such Assignment and Acceptance, the Eligible Assignee named therein shall be a Lender for all purposes of this Agreement, with the Commitments and/or Advances therein set forth and, to the extent of such Commitments and/or Advances, the assigning Lender shall be released from its further obligations under this Agreement. Borrower agrees that it shall execute and deliver (against delivery by the assigning Lender to Borrower of such Lender’s Notes) to such assignee Lender, Notes evidencing that assignee Lender’s Commitments and/or Advances, and to the assigning Lender, Notes evidencing the remaining balance of the Commitments and/or Advances retained by the assigning Lender.
(c) By executing and delivering an Assignment and Acceptance, the Eligible Assignee thereunder acknowledges and agrees that: (i) other than the representation and warranty that it is the legal and beneficial owner of the rights and obligations hereunder being assigned thereby free and clear of any adverse claim, the assigning Lender has made 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 or sufficiency of this Agreement or any other Loan Document; (ii) the assigning Lender has made no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance by Borrower of the Obligations; (iii) it has received a copy of this Agreement, together with copies of the most recent financial statements delivered pursuant to Section 7.1 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) it will, independently and without reliance upon the Administrative Agent or any Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) it appoints and authorizes the Administrative Agent to take such action and to exercise such powers under this Agreement as are delegated to the Administrative Agent by this Agreement; and (vi) 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.
(d) The Administrative Agent shall maintain at the Administrative Agent’s Office a copy of each Assignment and Acceptance delivered to it and a register (the “Register”) of the names and address of each of the Lenders and the Pro Rata Share of the Commitments held by each Lender, giving effect to each Assignment and Acceptance. The Register shall be available during normal business hours for inspection by Borrower or any Lender upon reasonable prior notice to the Administrative Agent. After receipt of a completed Assignment and Acceptance executed by any Lender and an Eligible Assignee, and receipt of an assignment fee of $3,500 from such Lender or Eligible Assignee, the Administrative Agent shall, promptly following the effective date thereof, provide to Borrower and the Lenders a revised Schedule 1.1 giving effect thereto. Borrower, the Administrative Agent and the Lenders shall deem and treat the Persons listed as Lenders in the Register as the holders and owners of the Pro Rata Shares of the Revolving Facility listed therein for all purposes hereof, and no assignment or transfer of any Lender’s rights and obligations hereunder shall be effective, in each case unless and until an Assignment and Acceptance effecting the assignment or transfer thereof shall have been accepted by the Administrative Agent and recorded in the Register as provided above. Prior to such recordation, all amounts owed with respect to the applicable Pro Rata Share of the Revolving Facility shall be owed to the Lender listed in the Register as the owner thereof, and any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is listed in the Register as a Lender shall be conclusive and binding on any subsequent holder, assignee or transferee of the corresponding Pro Rata Share of the Revolving Facility.
(e) Each Lender may from time to time grant participations to one or more banks or other financial institutions entities in or to all or a any part or portion of its rights and/or and obligations hereunder (including its Loan Notes or interest in the Loan); provided, that each such assignment (A) shall be made pursuant to an Assignment and Assumption, (B) shall be made either (i) so long as no Event of Default or Early Amortization Event shall have occurred and be continuing, to any Person who is either (1) a Permitted Assignee or (2) not a Disqualified Lender and, in each case, who is reasonably acceptable to the Borrower and the Facility Agent (in each case, in its reasonable discretion, such consent not to be unreasonably withheld, conditioned or delayed); provided that the Borrower shall not have any approval rights if the Original Lessee or the Borrower shall have breached or defaulted on any of its covenants or obligations under this Agreementthe EU Risk Retention Side Letter, or (ii) if an Event of Default or an Early Amortization Event shall have occurred and be continuing, to any Person; provided that the Borrower shall be deemed to have consented to any such assignment set forth in clause (i) if it shall have failed to object thereto by written notice to the Facility Agent within ten (10) Business Days after receiving notice thereof. The parties to each assignment shall execute and deliver to the Facility Agent an Assignment and Assumption, together with a processing and recordation fee in the amount of $3,500; provided, however, that the Facility Agent may, in its sole discretion, elect to waive such processing and recordation fee in the case of any assignment.
(iB) To the extent any a Hedge Counterparty ceases to be a Lender or any Affiliate of a Lender as a result of the assignment of any part or portion of the Loan under this Section 10.8, to the extent requested by the Borrower, such Hedge Counterparty shall novate, assign and delegate all of its interests, rights and obligations under its Hedge Agreement to a Qualifying Hedge Counterparty concurrently with it or its Affiliate ceasing to be a Lender under the Credit Agreement and shall bear any and all costs of such novation, including any mark-to-market assumption payment and/or credit margin.
(C) Upon, and to the extent of, any assignment (unless otherwise stated therein) made by any Lender hereunder, the assignee or purchaser of such assignment shall be a Lender hereunder for all purposes of this Agreement and shall have all the rights, benefits and obligations (including the obligation to provide documentation pursuant to Section 2.17(G)) of a Lender hereunder. The Facility Agent, acting solely for this purpose as an agent of the Borrower, shall maintain at one of its offices a register (the “Register”) for the recordation of the names and addresses of the Lenders, the outstanding principal amounts (and accrued interest) of the Loan owing to each Lender pursuant to the terms hereof from time to time and any assignment of such outstanding portion of the Loan. The entries in the Register shall be conclusive absent manifest error, and the Borrower, the Facility Agent and the Lenders shall 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. The Register shall be available for inspection by the Borrower, the Facility Agent and any Lender, at any reasonable time and from time to time upon reasonable prior notice.
(D) Any Lender may, without the consent of the Borrower, sell participation interests in its portion of the Loan owned by it and obligations hereunder (each such recipient of a participation a “Participant”); provided, that after giving effect to the sale of such participation, such Xxxxxx’s obligations under this Agreement hereunder and rights to consent to any waiver hereunder or amendment hereof shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) the participating banks or other financial institutions shall not be a all amounts payable to such Lender hereunder for and all rights to consent to any purpose except, waiver hereunder or amendment hereof shall be determined as if the participation agreement so provides, for the purposes of Sections 3.5, 3.6, 11.11 and 11.21 but only to the extent that the cost of such benefits to Borrower does Xxxxxx had not exceed the cost which Borrower would have incurred in respect of the Lender granting sold such participation absent interest, and the participation, (iv) Borrower, Borrower and the Administrative Facility Agent and the other Lenders parties hereto shall continue to deal solely and directly with such Lender and not be obligated to deal with such Participant. Each Lender that sells a participation shall, acting solely for this purpose as an agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the outstanding principal amounts (and accrued interest) of each Participant’s interest in the Loan or other obligations under the Transaction Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Transaction Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, none of the Facility Agent, the Collateral Agent or the Paying Agent shall have responsibility for maintaining a Participant Register. Each recipient of a participation shall, to the fullest extent permitted by law, have the same rights, benefits and obligations (including the obligation to provide documentation pursuant to Section 2.17(G)) hereunder with respect to the rights and benefits so participated as it would have if it were a Lender hereunder, except that no Participant shall be entitled to receive any greater payment under Sections 2.12 or 2.17 than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation.
(E) Notwithstanding any other provision of this Agreement to the contrary, a Lender may pledge as collateral, or grant a security interest in, all or any portion of its rights in, to and under this Agreement to a security trustee in connection with the funding by such Lender’s rights and Lender of its portion of the Loan without the consent of the Borrower; provided that no such pledge or grant shall release such Lender from its obligations under this Agreement, (v) the participation interest shall be expressed as a percentage of the granting Lender’s Pro Rata Share of the Revolving Facility as it then exists and shall not restrict an increase in the Revolving Facility (or the aggregate Commitments pertaining thereto), or in the granting Lender’s rights and obligations hereunder, so long as the amount of the participation interest is not affected thereby and (vi) the consent of the holder of such participation interest shall not be required for amendments or waivers of provisions of the Loan Documents other than those which (A) extend any Amortization Date, any applicable Maturity Date or any other date upon which any payment of money is due to the Lenders, (B) reduce the rate of interest on the Notes, any fee or any other monetary amount payable to the Lenders, (C) reduce the amount of any installment of principal due under the Notes, or (D) release any Guarantor from its Guaranty.
(f) Borrower agrees that upon the occurrence and during the continuance of any Event of Default, each Lender shall be entitled to assign its rights hereunder and under the Loan Documents, or grant participation interests in its rights under this Agreement and the Loan Documents, to any Person, in whole or in any part thereof, notwithstanding any provisions contained herein (including those set forth in subsection (b) above) or in any other Loan Document to the contrary, except that, other than (i) assignments by a Lender to an Affiliate of such Lender or to another Lender or (ii) pledges described in the last sentence of subsection (a) above, no assignment shall be made without the approval of the Administrative Agent.
Appears in 1 contract
Binding Effect; Assignment. (a) This Agreement and the other Loan Documents to which Borrower is a Party will be binding upon and inure to the benefit of Borrower, the Administrative Agent, each of the LendersBanks, and their respective successors and assigns, except that Borrower may not assign its rights hereunder or thereunder or any interest herein or therein without the prior written consent of all the LendersBanks. Each Lender Bank represents that it is not acquiring its Note Advances with a view to the distribution thereof within the meaning of the Securities Act of 1933, as amended (subject to any requirement that disposition of such Note its Advances must be within the control of such LenderBank). Any Lender Bank may at any time pledge its Note or any other instrument evidencing its rights as a Lender Bank under this Agreement to a Federal Reserve Bank, but no such pledge shall release that Lender Bank from its obligations hereunder or grant to such Federal Reserve Bank the rights of a Lender Bank hereunder absent foreclosure of such pledge.
(b) From time to time following subsequent to the Closing Date, each Lender Bank may assign to one or more Eligible Assignees all or any portion of its rights and obligations under this Agreement (including all or commercial banks a portion of its pro rata share of the Commitment, the Advances owing to it and the Note or Notes held by it); provided that, subject to subsection (f) below, that (i) the minimum amount of any such Eligible Assigneeassignment shall be the lesser of $10,000,000 or such Bank's total Commitment hereunder; (ii) such commercial bank, if not then a Lender or an Affiliate of the assigning LenderBank, shall be approved by reasonably acceptable to the Administrative Agent and acceptable to Borrower in Borrower's sole discretion; and (neither of which approvals iii) the assignee shall be unreasonably withheld or delayed), (ii) such assignment shall be evidenced by an execute and deliver to the Agent a Commitment Assignment and Acceptance, a copy of which shall be furnished to the Administrative Agent as hereinbelow provided, (iii) except in the case of an assignment to an Affiliate of the assigning Lender, to another Lender or of the entire remaining rights and obligations of the assigning Lender under this Agreement, the assignment shall not assign a portion of such assigning Lender’s Commitments and/or Advances owing to such assigning Lender that is equivalent to less than $3,000,000, ; and (ivv) prior to the effective date of any such assignment assignment, the Agent shall be as specified in have received a fee of $1,500. In the Assignment and Acceptance, but not earlier than event that such assignee is at the date which is five (5) Banking Days after the date the Administrative Agent has received the Assignment and Acceptance. Upon the effective date time of such Assignment and Acceptanceassignment a Bank, the Eligible Assignee named therein shall be a Lender for all purposes of this Agreement, with the Commitments and/or Advances therein set forth and, to the extent of such Commitments and/or Advances, then the assigning Lender bank shall not be released from its further obligations under this Agreement. Borrower agrees that it shall execute and deliver (against delivery by the assigning Lender permitted to Borrower of such Lender’s Notes) to such assignee Lender, Notes evidencing that assignee Lender’s Commitments and/or Advances, and to the assigning Lender, Notes evidencing the remaining balance of the Commitments and/or Advances retained by the assigning Lender.assign any portion of
(c) By executing and delivering an a Commitment Assignment and Acceptance, the Eligible Assignee assignee thereunder acknowledges and agrees that: (i) other than the representation and warranty that it is the legal and beneficial owner of the rights and obligations hereunder pro rata share of the Commitment being assigned thereby free and clear of any adverse claim, the assigning Lender Bank has made 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 or sufficiency of this Agreement or any other Loan Document; (ii) the assigning Lender Bank has made no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance by Borrower of the Obligationsobligations; (iii) it has received a copy of this Agreement, together with copies of the most recent financial statements delivered pursuant to Section 7.1 hereto and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Commitment Assignment and Acceptance; (iv) it will, independently and without reliance upon the Administrative Agent or any Lender Bank and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) it appoints and authorizes the Administrative Agent to take such action and to exercise such powers under this Agreement as are delegated to the Administrative Agent by this AgreementArticle 8; and (vi) 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 LenderBank.
(d) The Administrative Agent shall maintain at the Administrative Agent’s Office 's office a copy of each Commitment Assignment and Acceptance delivered to it and a register (the “Register”) for recordation of the names and address of each addresses of the Lenders Banks and their respective pro rata shares of the Commitment. The entries in such register shall be conclusive, in the absence of manifest error, and Borrower, the Agent and the Pro Rata Share Banks may treat each Person whose name is recorded in the register as a Bank hereunder for all purposes of this Agreement. Promptly following any entry in the Commitments held by each Lender, giving effect to each Assignment and Acceptance. The Register shall be available during normal business hours for inspection by Borrower or any Lender upon reasonable prior notice to the Administrative Agent. After receipt of a completed Assignment and Acceptance executed by any Lender and an Eligible Assignee, and receipt of an assignment fee of $3,500 from such Lender or Eligible Assigneeregister, the Administrative Agent shall, promptly following the effective date thereof, shall provide to Borrower and the Lenders Banks a revised Schedule 1.1 giving effect thereto. Borrower, the Administrative Agent and the Lenders shall deem and treat the Persons listed as Lenders in the Register as the holders and owners of the Pro Rata Shares of the Revolving Facility listed therein for all purposes hereof, and no assignment or transfer of any Lender’s rights and obligations hereunder shall be effective, in each case unless and until an Assignment and Acceptance effecting the assignment or transfer thereof shall have been accepted by the Administrative Agent and recorded in the Register as provided above. Prior to such recordation, all amounts owed with respect to the applicable Pro Rata Share of the Revolving Facility shall be owed to the Lender listed in the Register as the owner thereof, and any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is listed in the Register as a Lender shall be conclusive and binding on any subsequent holder, assignee or transferee of the corresponding Pro Rata Share of the Revolving Facility.
(e) Each Lender Bank may from time to time without the consent of Borrower or the Agent grant participations to one or more banks or other financial institutions in or to all or a portion of its rights and/or obligations under this Agreementpro rata share of the Commitment; provided, however, that (i) such Lender’s Bank's obligations under this Agreement shall remain unchanged, (ii) such Lender Bank shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) the participating banks or other financial institutions shall not be a Lender Bank hereunder for any purpose except, if the participation agreement so provides, for the purposes of Sections 3.53.3 [Increased Commitment Costs], 3.63.4 [LIBOR Fees], 11.11 3.5 [LIBOR Costs] and 11.21 9.10 [Indemnity by Borrower], but only to the extent that the cost of such benefits to Borrower does not exceed the cost which Borrower would have incurred in respect of the Lender granting such participation Bank absent the participation, and (iv) Borrower, the Administrative Agent and the other Lenders Banks shall continue to deal solely and directly with such Lender Bank in connection with such Lender’s Bank's rights and obligations under this Agreement, (v) the participation interest shall be expressed as a percentage of the granting Lender’s Pro Rata Share of the Revolving Facility as it then exists and shall not restrict an increase in the Revolving Facility (or the aggregate Commitments pertaining thereto), or in the granting Lender’s rights and obligations hereunder, so long as the amount of the participation interest is not affected thereby and (vi) the consent of the holder of such participation interest shall not be required for amendments or waivers of provisions of the Loan Documents other than those which (A) increase the monetary amount of any of the Commitment, (B) extend any Amortization Date, any applicable Maturity the Expiration Date or any other date upon which any payment of money is due to the Lenders, Banks or (BC) reduce the rate of interest on the NotesAdvances, any fee or any other monetary amount payable to the Lenders, (C) reduce the amount of any installment of principal due under the Notes, or (D) release any Guarantor from its GuarantyBanks.
(f) Borrower agrees In the event that upon the occurrence and during the continuance of any Event of Default, each Lender shall be entitled to assign its rights hereunder and under the Loan Documents, or grant participation interests in its rights under this Agreement and the Loan Documents, to any Person, in whole or in any part thereof, notwithstanding any provisions contained herein (including those set forth in subsection (b) above) or in any other Loan Document to the contrary, except that, other than (i) assignments by a Lender to an Affiliate any Person or two or more Persons acting in concert acquire beneficial ownership (within the meaning of such Lender or to another Lender or (ii) pledges described in the last sentence of subsection (a) above, no assignment shall be made without the approval Rule 13d-3 of the Administrative Agent.Securities and Exchange
Appears in 1 contract
Samples: Credit Agreement (Furon Co)
Binding Effect; Assignment. (a) This Agreement and the other Loan Documents to which Borrower is a Party party will be binding upon and inure to the benefit of Borrower, the Administrative Agent, each of the Lenders, Lenders and their respective successors and assigns, except that that, Borrower may not assign its rights hereunder or thereunder or any interest herein or therein without the prior written consent of all the Lenders. Each Lender represents that it is not acquiring its Note with a view to the distribution thereof within the meaning of the Securities Act of 1933, as amended (subject to Lenders and any requirement that disposition of such Note must attempted assignment shall be within the control of such Lender)void. Any Lender may at any time pledge its Note or any other instrument evidencing its rights as a Lender under this Agreement to a Federal Reserve Bank, but no such pledge shall release that such Lender from its obligations hereunder or grant to such Federal Reserve Bank the rights of a Lender hereunder absent foreclosure of such pledge.
(b) From time to time following the Closing Date, each Lender may assign to one or more Eligible Assignees all or any portion of its rights and obligations under this Agreement (including all or a portion Commitment and/or Extensions of its Commitment, the Advances owing to it and the Note or Notes held by it)Credit; provided that, subject to subsection (f) below, PROVIDED that (i) such Eligible Assigneeassignment, if not then to a Lender or an Affiliate of the assigning Lender, shall be approved consented to by Borrower at all times other than during the existence of a Default or Event of Default and by Administrative Agent Agent, Issuing Lender and Borrower Swing Line Lender (neither which consent of which approvals Borrower, Administrative Agent, Issuing Lender and Swing Line Lender shall not be unreasonably withheld or delayed), (ii) such assignment shall be evidenced by an Assignment and Acceptance, a copy of which a duly signed and completed Assignment and Acceptance shall be furnished delivered to the Administrative Agent as hereinbelow providedAgent, (iii) except in the case of an assignment assignment
(A) to an Affiliate of the assigning Lender, Lender or to another Lender or (B) of the entire remaining rights and obligations Commitment of the assigning Lender under this AgreementLender, the assignment portion of the Commitment assigned shall not assign a portion of such assigning Lender’s Commitments and/or Advances owing to such assigning Lender that is equivalent to be less than $3,000,000the Minimum Amount therefor, and (iv) the effective date of any such assignment shall be as specified in the Assignment and Acceptance, but not earlier than the date which is five (5) Banking Business Days after the date the Administrative Agent has received the Assignment and Acceptance. Upon obtaining any consent required as set forth in the effective date prior sentence, any forms required by SECTION 11.21 and payment of such Assignment and Acceptancethe requisite fee described below, the Eligible Assignee assignee named therein shall be a Lender for all purposes of this Agreement, with the Commitments and/or Advances therein set forth and, Agreement to the extent of the Assigned Interest (as defined in such Commitments and/or AdvancesAssignment and Acceptance), and the assigning Lender shall be released from its any further obligations under this AgreementAgreement to the extent of such Assigned Interest. Upon request, Borrower agrees that it shall execute and deliver (against delivery by new or replacement Notes to the assigning Lender and the assignee Lender to Borrower evidence Loans made by them. Administrative Agent's consent to any assignment shall not be deemed to constitute any representation or warranty by any Administrative Agent-Related Person as to any matter. Administrative Agent shall record the information contained in the Assignment and Acceptance in the Register. For purposes hereof, each mutual fund that is an Affiliate of a Lender shall be deemed to be a single Eligible Assignee, whether or not such Lender’s Notes) to such assignee Lender, Notes evidencing fund is managed by the same fund manager as other mutual funds that assignee Lender’s Commitments and/or Advances, and to the assigning Lender, Notes evidencing the remaining balance are Affiliates of the Commitments and/or Advances retained by the assigning same Lender.
(c) By executing and delivering an Assignment and Acceptance, the Eligible Assignee thereunder acknowledges and agrees that: (i) other than the representation and warranty that it is the legal and beneficial owner of the rights and obligations hereunder being assigned thereby free and clear of any adverse claim, the assigning Lender has made 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 or sufficiency of this Agreement or any other Loan Document; (ii) the assigning Lender has made no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance by Borrower of the Obligations; (iii) it has received a copy of this Agreement, together with copies of the most recent financial statements delivered pursuant to Section 7.1 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) it will, independently and without reliance upon the Administrative Agent or any Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) it appoints and authorizes the Administrative Agent to take such action and to exercise such powers under this Agreement as are delegated to the Administrative Agent by this Agreement; and (vi) 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.
(d) The Administrative Agent shall maintain at the Administrative Agent’s Office a copy of each Assignment and Acceptance delivered to it and a register (the “Register”) of the names and address of each of the Lenders and the Pro Rata Share of the Commitments held by each Lender, giving effect to each Assignment and Acceptance. The Register shall be available during normal business hours for inspection by Borrower or any Lender upon reasonable prior notice to the Administrative Agent. After receipt of a completed Assignment and Acceptance executed by any Lender and an Eligible AssigneeAcceptance, and receipt of an assignment fee of $3,500 4,000 from such Eligible Assignee and/or such assigning Lender or Eligible Assignee(including in the case of assignments to Affiliates of assigning Lenders), the Administrative Agent shall, promptly following the effective date thereof, provide to Borrower and the Lenders a revised Schedule 1.1 SCHEDULE 11.02 giving effect thereto. Borrower, the Administrative Agent and the Lenders shall deem and treat the Persons listed as Lenders in the Register as the holders and owners of the Pro Rata Shares of the Revolving Facility listed therein for all purposes hereof, and no assignment or transfer of any Lender’s rights and obligations hereunder shall be effective, in each case unless and until an Assignment and Acceptance effecting the assignment or transfer thereof shall have been accepted by the Administrative Agent and recorded in the Register as provided above. Prior to such recordation, all amounts owed with respect to the applicable Pro Rata Share of the Revolving Facility shall be owed to the Lender listed in the Register as the owner thereof, and any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is listed in the Register as a Lender shall be conclusive and binding on any subsequent holder, assignee or transferee of the corresponding Pro Rata Share of the Revolving Facility.
(ed) Each Lender may from time to time time, without the consent of any other Person, grant participations to one or more banks or other financial institutions in or to Person (including another Lender) of all or a any portion of its rights Pro Rata Share of its Commitment and/or obligations under this AgreementExtensions of Credit; providedPROVIDED, howeverHOWEVER, that (i) such Lender’s 's obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) the participating banks or other financial institutions shall not be a Lender hereunder for any purpose except, if the participation agreement so provides, for the purposes of Sections 3.5, 3.6, 11.11 and 11.21 SECTION 4 (but only to the extent that the cost of such benefits to Borrower does not exceed the cost which Borrower would have incurred in respect of the such Lender granting such participation absent the participation) and subject to SECTIONS 11.05 AND 11.06, (iv) Borrower, the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s 's rights and obligations under this Agreement, (v) the participation interest shall be expressed as a percentage of the granting Lender’s Pro Rata Share of the Revolving Facility as it then exists and agreement shall not restrict an increase in the Revolving Facility (or the aggregate combined Commitments pertaining thereto), or in the granting Lender’s rights and obligations hereunder's Commitment or Pro Rata Share, so long as the amount of the participation interest is not affected thereby increased, and (vi) the consent of the holder of such participation interest shall not be required for amendments or waivers of provisions of the Loan Documents other than those Documents; PROVIDED, HOWEVER, that the assigning Lender may, in any agreement with a participant, give such participant the right to consent to any matter which (A) extend any Amortization Date, any applicable extends the Maturity Date as to such participant or any other date upon which any payment of money is due to the Lenderssuch participant, (B) reduce reduces the rate of interest on the Notesowing to such participant, any fee or any other monetary amount payable owing to the Lenderssuch participant, or (C) reduce reduces the amount of any installment of principal due under owing to such participant. Any Lender that sells a participation to any Person that is a "foreign corporation, partnership or trust" within the Notes, or (D) release any Guarantor from meaning of the Code shall include in its Guaranty.
(f) participation agreement with such Person a covenant by such Person that such Person will comply with the provisions of SECTION 11.21 as if such Person were a Lender and provide that Administrative Agent and Borrower agrees that upon the occurrence and during the continuance of any Event of Default, each Lender shall be entitled to assign its rights hereunder and under the Loan Documents, or grant participation interests in its rights under this Agreement and the Loan Documents, to any Person, in whole or in any part thereof, notwithstanding any provisions contained herein (including those set forth in subsection (b) above) or in any other Loan Document to the contrary, except that, other than (i) assignments by a Lender to an Affiliate third party beneficiaries of such Lender or to another Lender or (ii) pledges described in the last sentence of subsection (a) above, no assignment shall be made without the approval of the Administrative Agentcovenant.
Appears in 1 contract
Samples: Credit Agreement (Tech Data Corp)
Binding Effect; Assignment. (a) This Agreement and the other Loan Documents to which Borrower is a Party will shall be binding upon and inure to the benefit of the Borrower, the Administrative Agent, Agent and each of the LendersLender, and their respective successors and permitted assigns, except that the Borrower may shall not have the right to assign its rights hereunder or thereunder or any interest herein or therein without the prior written consent of all the Administrative Agent and the Lenders. Each Lender represents that it is not acquiring its Note with a view to , and any assignment by the distribution thereof within the meaning Borrower in violation of the Securities Act of 1933, as amended this Section 9.8 shall be null and void.
(subject to any requirement that disposition of such Note must be within the control of such Lender). b) Any Lender may at any time pledge its Note time, without the consent of the Administrative Agent, assign all or any other instrument evidencing portion of its rights as a Lender under this Agreement and any Loan Note to a Federal Reserve Bank, but ; provided that no such assignment or pledge shall release that the transferor Lender from its obligations hereunder or grant to such Federal Reserve Bank the rights of a Lender hereunder absent foreclosure of such pledgehereunder.
(bc) From time Subject to time following the Closing Dateterms of the Acknowledgment Agreement, each Lender may assign to one or more Eligible Assignees banks or other entities all or any part or portion of its rights and obligations under this Agreement hereunder (including all its Loan Notes or a portion its Advances) with the prior written consent of its Commitment(x) the Borrower (such consent not to be unreasonably withheld, conditioned, or delayed), provided that the Advances owing Borrower shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to the Administrative Agent within five (5) Business Days after having received notice thereof, and provided further that no consent of the Note or Notes held by it); provided that, subject Borrower shall be required for an assignment to subsection (f) below, (i) such Eligible Assignee, if not then a Lender or an Affiliate of a Lender or, if an Event of Default has occurred and is continuing and (y) the assigning LenderAdministrative Agent; provided that
(i) each party to such assignment shall execute and deliver an Assignment and Assumption to the Administrative Agent, and
(ii) shall be approved by to (x) a bank, other financial institution or lender which is reasonably acceptable to the Administrative Agent, (y) a “qualified institutional buyer”, as defined in Rule 144A under the Securities Act of 1933, as amended, reasonably acceptable to the Administrative Agent or (z) any other Person (other than the Borrower a natural Person or a holding company, investment vehicle or trust for, or owned and Borrower operated by or for the primary benefit of natural persons or any Affiliates of the foregoing) reasonably satisfactory to the Administrative Agent. Upon, and to the extent of, any assignment (neither unless otherwise stated therein) made by any Lender hereunder, the assignee or purchaser of which approvals shall be unreasonably withheld or delayed), (ii) such assignment shall be evidenced by an Assignment and Acceptance, a copy of which shall be furnished to the Administrative Agent as hereinbelow provided, (iii) except in the case of an assignment to an Affiliate of the assigning Lender, to another Lender or of the entire remaining rights and obligations of the assigning Lender under this Agreement, the assignment shall not assign a portion of such assigning Lender’s Commitments and/or Advances owing to such assigning Lender that is equivalent to less than $3,000,000, and (iv) the effective date of any such assignment shall be as specified in the Assignment and Acceptance, but not earlier than the date which is five (5) Banking Days after the date the Administrative Agent has received the Assignment and Acceptance. Upon the effective date of such Assignment and Acceptance, the Eligible Assignee named therein shall be a Lender hereunder for all purposes of this AgreementAgreement and shall have all the rights, with the Commitments and/or Advances therein set forth and, to the extent of such Commitments and/or Advances, the assigning Lender shall be released from its further obligations under this Agreement. Borrower agrees that it shall execute and deliver (against delivery by the assigning Lender to Borrower of such Lender’s Notes) to such assignee Lender, Notes evidencing that assignee Lender’s Commitments and/or Advances, and to the assigning Lender, Notes evidencing the remaining balance of the Commitments and/or Advances retained by the assigning Lender.
(c) By executing and delivering an Assignment and Acceptance, the Eligible Assignee thereunder acknowledges and agrees that: (i) other than the representation and warranty that it is the legal and beneficial owner of the rights benefits and obligations hereunder being assigned thereby free and clear of any adverse claim, (including the assigning Lender has made no representation or warranty and assumes no responsibility with respect obligation to any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness or sufficiency of this Agreement or any other Loan Document; (ii) the assigning Lender has made no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance by Borrower of the Obligations; (iii) it has received a copy of this Agreement, together with copies of the most recent financial statements delivered provide documentation pursuant to Section 7.1 and such other documents and information 2.14(g)) of a Lender hereunder. The Administrative Agent, acting solely for this purpose as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) it will, independently and without reliance upon the Administrative Agent or any Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) it appoints and authorizes the Administrative Agent to take such action and to exercise such powers under this Agreement as are delegated to the Administrative Agent by this Agreement; and (vi) it will perform in accordance with their terms all an agent of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(d) The Administrative Agent Borrower, shall maintain at the Administrative Agent’s Office a copy one of each Assignment and Acceptance delivered to it and its offices a register (the “Register”) for the recordation of the names and address of each addresses of the Lenders and the Pro Rata Share outstanding principal amounts (and accrued interest) of the Commitments held by each Lender, giving effect Advances owing to each Assignment Lender pursuant to the terms hereof from time to time and Acceptanceany assignment of outstanding Advances. The entries in the Register shall be available during normal business hours for inspection by Borrower or any Lender upon reasonable prior notice to the Administrative Agent. After receipt of a completed Assignment and Acceptance executed by any Lender and an Eligible Assigneeconclusive absent manifest error, and receipt of an assignment fee of $3,500 from such Lender or Eligible Assignee, the Administrative Agent shall, promptly following the effective date thereof, provide to Borrower and the Lenders a revised Schedule 1.1 giving effect thereto. Borrower, the Administrative Agent and the Lenders shall deem and treat the Persons listed as Lenders in the Register as the holders and owners of the Pro Rata Shares of the Revolving Facility listed therein for all purposes hereof, and no assignment or transfer of any Lender’s rights and obligations hereunder shall be effective, in each case unless and until an Assignment and Acceptance effecting the assignment or transfer thereof shall have been accepted by the Administrative Agent and Person whose name is recorded in the Register as provided above. Prior to such recordation, all amounts owed with respect pursuant to the applicable Pro Rata Share of the Revolving Facility shall be owed to the Lender listed in the Register as the owner thereof, and any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is listed in the Register terms hereof as a Lender hereunder for all purposes of this Agreement. The Register shall be conclusive available for inspection by the Borrower and binding on any subsequent holderLender, assignee or transferee of the corresponding Pro Rata Share of the Revolving Facility.
(e) Each Lender may at any reasonable time and from time to time grant participations upon reasonable prior notice. Any Lender may sell participation interests in its Advances and obligations hereunder (each such recipient of a participation a “Participant”); provided that after giving effect to one the sale of such participation, such Lendxx’x xbligations hereunder and rights to consent to any waiver hereunder or more banks or other financial institutions in or to all or a portion of its rights and/or obligations under this Agreement; provided, however, that (i) such Lender’s obligations under this Agreement amendment hereof shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) the participating banks or other financial institutions shall not be a all amounts payable to such Lender hereunder for and all rights to consent to any purpose except, waiver hereunder or amendment hereof shall be determined as if the participation agreement so provides, for the purposes of Sections 3.5, 3.6, 11.11 and 11.21 but only to the extent that the cost of such benefits to Borrower does Lendxx xxx not exceed the cost which Borrower would have incurred in respect of the Lender granting sold such participation absent interest, and the participation, (iv) Borrower, Borrower and the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender and not be obligated to deal with such participant. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the outstanding principal amounts (and accrued interest) of each Participant’s interest in the Advances or other obligations under the Transaction Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s -87- interest in any Advances or its other obligations under any Transaction Document) to any Person except to the extent that such disclosure is necessary to establish that such Advances or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations and Proposed Treasury Regulations Section 1.163-5(b) (or any amended or successor version). The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent shall have no responsibility for maintaining a Participant Register. Each recipient of a participation shall, to the fullest extent permitted by law, have the same rights, benefits and obligations (including the obligation to provide documentation pursuant to Section 2.14(g) (it being understood that the documentation required under Section 2.14(g) shall be delivered to the participating Lender)), hereunder with respect to the rights and benefits so participated as it would have if it were a Lender hereunder, except that no Participant shall be entitled to receive any greater payment under Sections 2.11 or 2.14 than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation. Notwithstanding any other provision of this Agreement to the contrary, a Lender may pledge as collateral, or grant a security interest in, all or any portion of its rights in, to and under this Agreement to (i) a security trustee in connection with the funding by such Lender’s rights and Lender of Advances or (ii) a Federal Reserve Bank to secure obligations to such Federal Reserve Bank, in each case without the consent of the Borrower; provided that no such pledge or grant shall release such Lender from its obligations under this Agreement, (v) the participation interest shall be expressed as a percentage of the granting Lender’s Pro Rata Share of the Revolving Facility as it then exists and shall not restrict an increase in the Revolving Facility (or the aggregate Commitments pertaining thereto), or in the granting Lender’s rights and obligations hereunder, so long as the amount of the participation interest is not affected thereby and (vi) the consent of the holder of such participation interest shall not be required for amendments or waivers of provisions of the Loan Documents other than those which (A) extend any Amortization Date, any applicable Maturity Date or any other date upon which any payment of money is due to the Lenders, (B) reduce the rate of interest on the Notes, any fee or any other monetary amount payable to the Lenders, (C) reduce the amount of any installment of principal due under the Notes, or (D) release any Guarantor from its Guaranty.
(f) Borrower agrees that upon the occurrence and during the continuance of any Event of Default, each Lender shall be entitled to assign its rights hereunder and under the Loan Documents, or grant participation interests in its rights under this Agreement and the Loan Documents, to any Person, in whole or in any part thereof, notwithstanding any provisions contained herein (including those set forth in subsection (b) above) or in any other Loan Document to the contrary, except that, other than (i) assignments by a Lender to an Affiliate of such Lender or to another Lender or (ii) pledges described in the last sentence of subsection (a) above, no assignment shall be made without the approval of the Administrative Agent.
Appears in 1 contract
Samples: Credit Agreement (UWM Holdings Corp)
Binding Effect; Assignment. (a) This Agreement and the other Loan Documents to which Borrower is a Party will be binding upon and inure to the benefit of Borrower, the Administrative Agent, the Co-Agent, each of the LendersBanks, and their respective successors and assigns, except that Borrower may not assign its rights or responsibilities hereunder or thereunder or any interest herein or therein without the prior written consent of all the LendersBanks. Each Lender Bank represents that it is not acquiring its Note with a view to the distribution thereof within the meaning of the Securities Act of 1933, as amended (subject to any requirement that disposition of such Note must be within the control of such LenderBank). Any Lender Bank may at any time pledge its Note or any other instrument evidencing its rights as a Lender Bank under this Agreement to a Federal Reserve Bank, but no such pledge shall release that Lender Bank from its obligations hereunder or grant to such Federal Reserve Bank the rights of a Lender Bank hereunder absent foreclosure of such pledge.
(b) From time to time following the Closing Date, each Lender Bank may assign to one or more Eligible Assignees all or any portion of its rights and obligations under this Agreement (including all or a portion of its Commitment, Pro Rata Share of the Advances owing to it and the Note or Notes held by it)Commitments; provided that, subject to subsection (f) below, that (i) in no event shall an assignment be made that would reduce the remaining Pro Rata Share of the Commitment held by the assigning Bank below $10,000,000 (ii) such Eligible Assignee, if not then a Lender or an Affiliate Assignee shall be subject to the prior reasonable approval of the assigning Lender, shall be approved by the Administrative Agent and Borrower (neither of which approvals shall be unreasonably withheld or delayed)Borrower, (iiiii) such assignment shall be evidenced by an a Commitment Assignment and Acceptance, a copy of which shall be furnished to the Administrative Agent as hereinbelow provided, (iiiiv) except in the case of an assignment to an Affiliate of the assigning Lender, to another Lender or of the entire remaining rights and obligations of the assigning Lender under this Agreement, the assignment shall not assign a portion Pro Rata Share of such assigning Lender’s the Commitments and/or Advances owing to such assigning Lender that is equivalent to less than $3,000,00010,000,000, (v) any such assignment must be made pro-rata with respect to the Line A and Line B Commitments, and (ivvi) the effective date of any such assignment shall be as specified in the Commitment Assignment and Acceptance, but not earlier than the date which is five (5) Banking Days after the date the Administrative Agent has received the Commitment Assignment and AcceptanceAccep tance. Upon the effective date of such Commitment Assignment and Acceptance, the Eligible Assignee named therein shall be a Lender Bank for all purposes of this Agreement, with the Pro Rata Share of the Commitments and/or Advances therein set forth and, to the extent of such Commitments and/or AdvancesPro Rata Share, the assigning Lender Bank shall be released from its further obligations under this Agreement. Borrower agrees that it shall execute and deliver (against delivery by the assigning Lender Bank to Borrower of such Lender’s its Notes) to such assignee LenderBank, Notes evidencing that assignee Lender’s Commitments and/or AdvancesBank's Pro Rata Share of the Line A and Line B Commitments, and to the assigning LenderBank, Notes evidencing the remaining balance of the Commitments and/or Advances Pro Rata Share retained by the assigning LenderBank. Other than as specifically permitted under Sections 11.8(a), 11.8(b), or 11.8(e), or as may be approved by the Majority Banks, no Bank shall be permitted to assign or otherwise transfer (including by participation) its interest in the Commitments, any Loan or any of the Loan Documents.
(c) By executing and delivering an a Commitment Assignment and Acceptance, the Eligible Assignee thereunder acknowledges and agrees that: (i) other -87- than the representation and warranty that it is the legal and beneficial owner of the rights and obligations hereunder Pro Rata Share of the Commitments being assigned thereby free and clear of any adverse claim, the assigning Lender Bank has made 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 or sufficiency of this Agreement or any other Loan Document; (ii) the assigning Lender Bank has made no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance by Borrower of the Obligations; (iii) it has received a copy of this Agreement, together with copies of the most recent financial statements delivered pursuant to Section 7.1 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Commitment Assignment and Acceptance; (iv) it will, independently and without reliance upon the Administrative Agent, the Co-Agent or any Lender Bank and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) it appoints and authorizes the Administrative Agent to take such action and to exercise such powers under this Agreement as are delegated to the Administrative Agent by this Agreement; and (vi) 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 LenderBank.
(d) The Administrative Agent shall maintain at the Administrative Agent’s 's Office a copy of each Commitment Assignment and Acceptance delivered to it and a register (the “Register”) of the names and address of each of the Lenders and the Pro Rata Share of the Commitments held by each Lender, giving effect to each Assignment and Acceptance. The Register shall be available during normal business hours for inspection by Borrower or any Lender upon reasonable prior notice to the Administrative Agentit. After receipt of a completed Commitment Assignment and Acceptance executed by any Lender Bank and an Eligible Assignee, and receipt of an assignment fee of $3,500 2,500 from such Lender or Eligible Assignee, the Administrative Agent shall, promptly following the effective date thereof, provide to Borrower and the Lenders Banks a revised Schedule 1.1 giving effect thereto. Borrower, the Administrative Agent and the Lenders shall deem and treat the Persons listed as Lenders in the Register as the holders and owners of the Pro Rata Shares of the Revolving Facility listed therein for all purposes hereof, and no assignment or transfer of any Lender’s rights and obligations hereunder shall be effective, in each case unless and until an Assignment and Acceptance effecting the assignment or transfer thereof shall have been accepted by the Administrative Agent and recorded in the Register as provided above. Prior to such recordation, all amounts owed with respect to the applicable Pro Rata Share of the Revolving Facility shall be owed to the Lender listed in the Register as the owner thereof, and any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is listed in the Register as a Lender shall be conclusive and binding on any subsequent holder, assignee or transferee of the corresponding Pro Rata Share of the Revolving Facility.
(e) Each Lender Bank may from time to time grant participations to one or more banks or other financial institutions a commercial bank Affiliate of such Bank in or to all or a portion of its rights and/or obligations under this AgreementPro-Rata Share of the Commitments; provided, however, that (i) such Lender’s Bank's obligations under this Agreement shall remain unchanged, (ii) such Lender Bank shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) the participating banks or other financial institutions shall not be a Lender Bank hereunder for any purpose purposes except, if the participation agreement so provides, for the purposes of Sections 3.5, 3.6, 11.11 11.10 and 11.21 but only to the extent that the cost of such benefits to Borrower does not exceed the cost which Borrower would have incurred in respect of the Lender granting such participation absent the participation11.21, (iv) Borrower, the Administrative Agent and the other Lenders Banks shall continue to deal solely and directly with such Lender Bank in connection with such Lender’s Bank's rights and obligations under this Agreement, Agreement and (v) the participation interest shall be expressed as a percentage of the granting Lender’s Pro Rata Share of the Revolving Facility as it then exists and shall not restrict an increase in the Revolving Facility (or the aggregate Commitments pertaining thereto), or in the granting Lender’s rights and obligations hereunder, so long as the amount of the participation interest is not affected thereby and (vi) the consent of the holder of such participation interest shall not be required for amendments provided under its participation agreement with consent or waivers of provisions of approval rights with respect to any matters concerning the Loan Documents other than or the Loans except for those which (A) extend any Amortization Date, any applicable Maturity Date matters designated as requiring the consent or any other date upon which any payment of money is due to the Lenders, (B) reduce the rate of interest on the Notes, any fee or any other monetary amount payable to the Lenders, (C) reduce the amount of any installment of principal due under the Notes, or (D) release any Guarantor from its Guaranty.
(f) Borrower agrees that upon the occurrence and during the continuance of any Event of Default, each Lender shall be entitled to assign its rights hereunder and under the Loan Documents, or grant participation interests in its rights under this Agreement and the Loan Documents, to any Person, in whole or in any part thereof, notwithstanding any provisions contained herein (including those set forth in subsection (b) above) or in any other Loan Document to the contrary, except that, other than (i) assignments by a Lender to an Affiliate of such Lender or to another Lender or (ii) pledges described in the last sentence of subsection (a) above, no assignment shall be made without the approval of all of the Administrative AgentBanks under Section 11.2.
Appears in 1 contract
Binding Effect; Assignment. (a) This Agreement and the other Loan Documents to which Borrower is a Party party will be binding upon and inure to the benefit of Borrower, the Administrative Agent, each of the Lenders, Lenders and their respective successors and assigns, except that that, Borrower may not assign its rights hereunder or thereunder or any interest herein or therein without the prior written consent of all the Lenders. Each Lender represents that it is not acquiring its Note with a view to the distribution thereof within the meaning of the Securities Act of 1933, as amended (subject to Lenders and any requirement that disposition of such Note must attempted assignment shall be within the control of such Lender)void. Any Lender may at any time pledge its Note or any other instrument evidencing its rights as a Lender under this Agreement to a Federal Reserve BankLender, but no such pledge shall release that Lender from its obligations hereunder or grant to such Federal Reserve Bank Lender the rights of a Lender hereunder absent foreclosure of such pledge.
(b) From time to time following the Closing Date, each Lender may assign to one or more Eligible Assignees all or any portion of its rights and obligations under this Agreement (including all or a portion Pro Rata Share of its Commitment, the Advances owing to it and the Note or Notes held by it)Commitment and/or Extensions of Credit; provided that, subject to subsection (f) below, that (i) such Eligible Assigneeassignment, -------- if not then to a Lender or an Affiliate of the assigning Lender, shall be approved consented to by Borrower at all times other than during the existence of a Default or Event of Default and Administrative Agent and Issuing Lender (which approval of Borrower (neither of which approvals shall not be unreasonably withheld or delayed), (ii) such assignment shall be evidenced by an Assignment and Acceptance, a copy of which a duly signed and completed Notice of Assignment and Acceptance shall be furnished delivered to the Administrative Agent as hereinbelow providedAgent, (iii) except in the case of an assignment to an Affiliate of the assigning Lender, to another Lender or of the entire remaining rights and obligations Commitment of the assigning Lender under this AgreementLender, the assignment shall not assign a portion of such assigning Lender’s Commitments and/or Advances owing to such assigning Lender that is Pro Rata Share equivalent to less than $3,000,0005,000,000, the Minimum Amount therefor, and (iv) the effective date of any such assignment shall be as specified in the Notice of Assignment and Acceptance, but not earlier than the date which is five (5) Banking Business Days after the date the Administrative Agent has received the Notice of Assignment and Acceptance. Upon the effective date acceptance by Administrative Agent of such Notice Assignment and AcceptanceAcceptance and consent thereto by Administrative Agent and Issuing Lender and payment of the requisite fee described below, the Eligible Assignee named therein shall be a Lender for all purposes of this Agreement, with the Commitments and/or Advances Pro Rata Share therein set forth and, to the extent of such Commitments and/or AdvancesPro Rata Share, the assigning Lender shall be released from its further obligations under this Agreement. Borrower agrees that it shall execute and deliver upon request (against delivery by the assigning Lender to Borrower of such Lender’s Notesany Note) to such assignee Lender, one or more Notes evidencing that assignee Lender’s Commitments and/or Advances's Pro Rata Share, and to the assigning LenderLender if requested, one or more Notes evidencing the remaining balance of the Commitments and/or Advances Pro Rata Share retained by the assigning Lender. Administrative Agent's consent to and acceptance of any assignment shall not be deemed to constitute any representation or warranty by any Administrative Agent-Related Person as to any matter.
(c) By executing and delivering an Assignment and Acceptance, the Eligible Assignee thereunder acknowledges and agrees that: (i) other than the representation and warranty that it is the legal and beneficial owner of the rights and obligations hereunder being assigned thereby free and clear of any adverse claim, the assigning Lender has made 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 or sufficiency of this Agreement or any other Loan Document; (ii) the assigning Lender has made no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance by Borrower of the Obligations; (iii) it has received a copy of this Agreement, together with copies of the most recent financial statements delivered pursuant to Section 7.1 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) it will, independently and without reliance upon the Administrative Agent or any Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) it appoints and authorizes the Administrative Agent to take such action and to exercise such powers under this Agreement as are delegated to the Administrative Agent by this Agreement; and (vi) 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.
(d) The Administrative Agent shall maintain at the Administrative Agent’s Office a copy of each Assignment and Acceptance delivered to it and a register (the “Register”) of the names and address of each of the Lenders and the Pro Rata Share of the Commitments held by each Lender, giving effect to each Assignment and Acceptance. The Register shall be available during normal business hours for inspection by Borrower or any Lender upon reasonable prior notice to the Administrative Agent. After receipt of a completed Notice of Assignment and Acceptance executed by any Lender and an Eligible AssigneeAcceptance, and receipt of an assignment fee of $3,500 from such Lender or Eligible AssigneeAssignee (including Affiliates of assigning Lenders), the Administrative Agent shall, promptly following the effective date thereof, provide to Borrower and the Lenders a revised Schedule 1.1 giving effect thereto. Borrower, the Administrative Agent and the Lenders shall deem and treat the Persons listed as Lenders in the Register as the holders and owners of the Pro Rata Shares of the Revolving Facility listed therein for all purposes hereof, and no assignment or transfer of any Lender’s rights and obligations hereunder shall be effective, in each case unless and until an Assignment and Acceptance effecting the assignment or transfer thereof shall have been accepted by the Administrative Agent and recorded in the Register as provided above. Prior to such recordation, all amounts owed with respect to the applicable Pro Rata Share of the Revolving Facility shall be owed to the Lender listed in the Register as the owner thereof, and any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is listed in the Register as a Lender shall be conclusive and binding on any subsequent holder, assignee or transferee of the corresponding Pro Rata Share of the Revolving Facility.
(e) Each Lender may from time to time grant participations to one or more banks or other financial institutions in or to all or a portion of its rights and/or obligations under this Agreement; provided, however, that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) the participating banks or other financial institutions shall not be a Lender hereunder for any purpose except, if the participation agreement so provides, for the purposes of Sections 3.5, 3.6, 11.11 and 11.21 but only to the extent that the cost of such benefits to Borrower does not exceed the cost which Borrower would have incurred in respect of the Lender granting such participation absent the participation, (iv) Borrower, the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement, (v) the participation interest shall be expressed as a percentage of the granting Lender’s Pro Rata Share of the Revolving Facility as it then exists and shall not restrict an increase in the Revolving Facility (or the aggregate Commitments pertaining thereto), or in the granting Lender’s rights and obligations hereunder, so long as the amount of the participation interest is not affected thereby and (vi) the consent of the holder of such participation interest shall not be required for amendments or waivers of provisions of the Loan Documents other than those which (A) extend any Amortization Date, any applicable Maturity Date or any other date upon which any payment of money is due to the Lenders, (B) reduce the rate of interest on the Notes, any fee or any other monetary amount payable to the Lenders, (C) reduce the amount of any installment of principal due under the Notes, or (D) release any Guarantor from its Guaranty.
(f) Borrower agrees that upon the occurrence and during the continuance of any Event of Default, each Lender shall be entitled to assign its rights hereunder and under the Loan Documents, or grant participation interests in its rights under this Agreement and the Loan Documents, to any Person, in whole or in any part thereof, notwithstanding any provisions contained herein (including those set forth in subsection (b) above) or in any other Loan Document to the contrary, except that, other than (i) assignments by a Lender to an Affiliate of such Lender or to another Lender or (ii) pledges described in the last sentence of subsection (a) above, no assignment shall be made without the approval of the Administrative Agent.--------
Appears in 1 contract
Samples: Credit Agreement (Flir Systems Inc)
Binding Effect; Assignment. (a) This Agreement and the other Loan Documents to which Borrower is a Party will shall be binding upon and inure to the benefit of Borrower, the Administrative Agent, each of the Lenders, parties and their respective successors and permitted assigns. Nothing in this Agreement shall create or be deemed to create any third party beneficiary rights in any Person not a party to this Agreement except (i) Section 7.6 shall be for the benefit of, and enforceable by, the D&O Indemnitees, (ii) Section 11.10 shall be for the benefit of, and enforceable by, the Nonparty Affiliates of the parties, (iii) Section 11.11 shall be for the benefit of, and enforceable by BBS, and (iv) the Financing Source Sections and this Section 11.9(a)(vi) shall be for the benefit of, and enforceable by, the Financing Sources and their respective Affiliates and Representatives. Without limiting the foregoing, each of the parties hereto acknowledges to each of the Financing Sources, as an explicit third party beneficiary, such Financing Source’s direct rights against such party under the Financing Source Sections and this Section 11.9(a), which are intended for the benefit of, and shall be enforceable by, each Financing Source, its successors, assigns, except that Borrower heirs and its legal representatives.
(b) No assignment of this Agreement or of any rights or obligations hereunder may not assign its rights hereunder be made, directly or thereunder indirectly (by operation of law or any interest herein otherwise), by (i) the Company or therein Seller, without the prior written consent of all Buyer or (ii) Buyer, without the Lenders. Each Lender represents that it is not acquiring its Note with a view prior written consent of either the Company and Seller (prior to the distribution thereof within Closing) or the meaning of Seller (at and after the Securities Act of 1933Closing), as amended (subject to any requirement that disposition of such Note must be within the control of such Lender)respectively. Any Lender attempted assignment without obtaining such required consent shall be null and void. Notwithstanding the foregoing, Buyer may at any time pledge its Note or any other instrument evidencing its rights as a Lender under assign this Agreement to a Federal Reserve Bank, (in whole but no such pledge shall release that Lender from its obligations hereunder or grant to such Federal Reserve Bank the rights of a Lender hereunder absent foreclosure of such pledge.
(bnot in part) From time to time following the Closing Date, each Lender may assign to one or more Eligible Assignees all or any portion wholly owned Subsidiaries of its rights and obligations under this Agreement (including all or a portion of its CommitmentBuyer; provided, the Advances owing to it and the Note or Notes held by it); provided thathowever, subject to subsection (f) below, (i) such Eligible Assignee, if not then a Lender or an Affiliate of the assigning Lender, shall be approved by the Administrative Agent and Borrower (neither of which approvals shall be unreasonably withheld or delayed), (ii) that no such assignment shall be evidenced by an Assignment and Acceptance, a copy of which shall be furnished to the Administrative Agent as hereinbelow provided, (iii) except in the case of an assignment to an Affiliate of the assigning Lender, to another Lender or of the entire remaining rights and obligations of the assigning Lender under this Agreement, the assignment shall not assign a portion of such assigning Lender’s Commitments and/or Advances owing to such assigning Lender that is equivalent to less than $3,000,000, and (iv) the effective date of any such assignment shall be as specified in the Assignment and Acceptance, but not earlier than the date which is five (5) Banking Days after the date the Administrative Agent has received the Assignment and Acceptance. Upon the effective date of such Assignment and Acceptance, the Eligible Assignee named therein shall be a Lender for all purposes of this Agreement, with the Commitments and/or Advances therein set forth and, to the extent of such Commitments and/or Advances, the assigning Lender shall be released from its further obligations under this Agreement. Borrower agrees that it shall execute and deliver (against delivery by the assigning Lender to Borrower of such Lender’s Notes) to such assignee Lender, Notes evidencing that assignee Lender’s Commitments and/or Advances, and to the assigning Lender, Notes evidencing the remaining balance of the Commitments and/or Advances retained by the assigning Lender.
(c) By executing and delivering an Assignment and Acceptance, the Eligible Assignee thereunder acknowledges and agrees that: (i) other than the representation and warranty that it is the legal and beneficial owner of the rights and obligations hereunder being assigned thereby free and clear of any adverse claim, the assigning Lender has made 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 or sufficiency of this Agreement or any other Loan Document; (ii) the assigning Lender has made no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance by Borrower of the Obligations; (iii) it has received a copy of this Agreement, together with copies of the most recent financial statements delivered pursuant to Section 7.1 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) it will, independently and without reliance upon the Administrative Agent or any Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) it appoints and authorizes the Administrative Agent to take such action and to exercise such powers under this Agreement as are delegated to the Administrative Agent by this Agreement; and (vi) 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.
(d) The Administrative Agent shall maintain at the Administrative Agent’s Office a copy of each Assignment and Acceptance delivered to it and a register (the “Register”) of the names and address of each of the Lenders and the Pro Rata Share of the Commitments held by each Lender, giving effect to each Assignment and Acceptance. The Register shall be available during normal business hours for inspection by Borrower or any Lender upon reasonable prior notice to the Administrative Agent. After receipt of a completed Assignment and Acceptance executed by any Lender and an Eligible Assignee, and receipt of an assignment fee of $3,500 from such Lender or Eligible Assignee, the Administrative Agent shall, promptly following the effective date thereof, provide to Borrower and the Lenders a revised Schedule 1.1 giving effect thereto. Borrower, the Administrative Agent and the Lenders shall deem and treat the Persons listed as Lenders in the Register as the holders and owners of the Pro Rata Shares of the Revolving Facility listed therein for all purposes hereof, and no assignment or transfer of any Lender’s rights and obligations hereunder shall be effective, in each case unless and until an Assignment and Acceptance effecting the assignment or transfer thereof shall have been accepted by the Administrative Agent and recorded in the Register as provided above. Prior to such recordation, all amounts owed with respect to the applicable Pro Rata Share of the Revolving Facility shall be owed to the Lender listed in the Register as the owner thereof, and any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is listed in the Register as a Lender shall be conclusive and binding on any subsequent holder, assignee or transferee of the corresponding Pro Rata Share of the Revolving Facility.
(e) Each Lender may from time to time grant participations to one or more banks or other financial institutions in or to all or a portion relieve Buyer of its rights and/or obligations under this Agreement; provided, howeverfurther, that (i) in no event shall Buyer be permitted to assign this Agreement to any Person to the extent such Lender’s obligations that, as a result of such assignment, any delay would occur with respect to any consent or approval of, or filing, declaration or registration with, any Governmental Authority that otherwise is required to be made under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) the participating banks or other financial institutions shall not be a Lender hereunder for any purpose except, if the participation agreement so provides, for the purposes of Sections 3.5, 3.6, 11.11 and 11.21 but only to the extent that the cost of such benefits to Borrower does not exceed the cost which Borrower would have incurred in respect of the Lender granting such participation absent the participation, (iv) Borrower, the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement, (v) the participation interest shall be expressed as a percentage of the granting Lender’s Pro Rata Share of the Revolving Facility as it then exists and shall not restrict an increase in the Revolving Facility (or the aggregate Commitments pertaining thereto), or in the granting Lender’s rights and obligations hereunder, so long as the amount of the participation interest is not affected thereby and (vi) the consent of the holder of such participation interest shall not be required for amendments or waivers of provisions of the Loan Documents other than those which (A) extend any Amortization Date, any applicable Maturity Date or any other date upon which any payment of money is due to the Lenders, (B) reduce the rate of interest on the Notes, any fee or any other monetary amount payable to the Lenders, (C) reduce the amount of any installment of principal due under the Notes, or (D) release any Guarantor from its Guarantytransactions contemplated hereby.
(f) Borrower agrees that upon the occurrence and during the continuance of any Event of Default, each Lender shall be entitled to assign its rights hereunder and under the Loan Documents, or grant participation interests in its rights under this Agreement and the Loan Documents, to any Person, in whole or in any part thereof, notwithstanding any provisions contained herein (including those set forth in subsection (b) above) or in any other Loan Document to the contrary, except that, other than (i) assignments by a Lender to an Affiliate of such Lender or to another Lender or (ii) pledges described in the last sentence of subsection (a) above, no assignment shall be made without the approval of the Administrative Agent.
Appears in 1 contract
Samples: Stock Purchase Agreement (Envision Healthcare Corp)
Binding Effect; Assignment. (a) This Agreement and the other Loan Documents to which Borrower is a Party will be binding upon and inure to the benefit of BorrowerParent, Borrowers, the Administrative Agent, each of the LendersCreditors, and their respective successors and assigns, except EXCEPT that Borrower Parent and Borrowers may not assign its their rights hereunder or thereunder or any interest herein or therein without the prior written consent of all the LendersLenders (any purported assignment by Parent or any Borrower in violation of this Section being VOID AB INITIO). Each Lender represents that it is not acquiring its Note Notes with a view to the distribution thereof within the meaning of the Securities Act of 1933, as amended (subject to any requirement that disposition of such Note Notes must be within the control of such Lender). Any Lender may at any time pledge its Note Notes or any other instrument evidencing its rights as a Lender under this Agreement to a Federal Reserve Bank, but no such pledge shall release that Lender from its obligations hereunder or grant to such Federal Reserve Bank the rights of a Lender hereunder absent foreclosure of such pledge.
(b) From time to time following the Closing Date, each Lender may assign to one or more Eligible Assignees all or any portion of its rights Pro Rata Share and obligations under this Agreement (including all or a portion of its Commitment, the Advances owing to it and the Note or Notes held by it)Notes; provided that, subject to subsection (f) below, PROVIDED that (i) such Eligible Assignee, if not then a Lender or an Affiliate of the assigning LenderLender having a combined capital and surplus in excess of $100,000,000, shall be approved by each of the Administrative Agent (which approval shall not be unreasonably withheld) and Borrower the Parent and the Borrowers (neither of which approvals approval shall not be unreasonably withheld or delayedand will not be required if an Event of Default has occurred and remains continuing), (ii) such assignment shall be evidenced by an Assignment and AcceptanceAgreement, a copy of which shall be furnished to the Administrative Agent as hereinbelow providedAgent, (iii) except EXCEPT in the case of an assignment to an Affiliate of the assigning Lender, to another Lender or of the entire remaining rights and obligations Commitment of the assigning Lender under this AgreementLender, the assignment shall not assign a portion of such assigning Lender’s Commitments and/or Advances owing to such assigning Lender that Pro Rata Share which is equivalent to less than $3,000,0005,000,000, and (iv) the effective date of any such assignment shall be as specified in the Assignment and AcceptanceAgreement, but not earlier than the date which is five (5) Banking Business Days after the date the Administrative Agent has received the Assignment and AcceptanceAgreement. Upon the effective date of such Assignment and AcceptanceAgreement, the Eligible Assignee named therein shall be a Lender for all purposes of this Agreement, with the Commitments and/or Advances Pro Rata Share therein set forth and, to the extent of such Commitments and/or AdvancesPro Rata Share, the assigning Lender shall be released from its further obligations under this AgreementAgreement and the other Loan Documents. Each Borrower agrees that it shall execute and deliver (against delivery by the assigning Lender to Borrower the Borrowers of such Lender’s its Notes) to such assignee Lender, Notes evidencing that assignee Lender’s Commitments and/or Advances's Pro Rata Share, and to the assigning Lender, Notes evidencing the remaining balance of the Commitments and/or Advances Pro Rata Share retained by the assigning Lender.
(c) By executing and delivering an Assignment and AcceptanceAgreement, the Eligible Assignee thereunder acknowledges and agrees that: (i) other than the representation and warranty that it is the legal and beneficial owner of the rights and obligations hereunder Pro Rata Share being assigned thereby free and clear of any adverse claim, the assigning Lender has made 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 or sufficiency of this Agreement or any other Loan Document; (ii) the assigning Lender has made no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower the Parent or its Subsidiaries or the -64- performance by Borrower the Parent or its Subsidiaries of the Obligations; (iii) it has received a copy of this AgreementAgreement and the other Loan Documents, together with copies of the most recent financial statements delivered pursuant to Section 7.1 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and AcceptanceAgreement; (iv) it will, independently and without reliance upon the Administrative Agent or any Lender other Creditor and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) it appoints and authorizes the Administrative Agent to take such action and to exercise such powers under this Agreement and the Loan Documents as are delegated to the Administrative Agent by this Agreement; and (vi) 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.
(d) The Administrative Agent shall maintain at the Administrative Agent’s Office a copy of each Assignment and Acceptance Agreement delivered to it and a register (the “Register”) of the names and address of each of the Lenders and the Pro Rata Share of the Commitments held by each Lender, giving effect to each Assignment and Acceptance. The Register shall be available during normal business hours for inspection by Borrower or any Lender upon reasonable prior notice to the Administrative Agentit. After receipt of a completed Assignment and Acceptance Agreement executed by any Lender and an Eligible Assignee, and receipt (except in the case of the assignment to an Affiliate of the Assignor) of an assignment fee of $3,500 from such Lender or Eligible Assignee, the Administrative Agent shall, promptly following shall confirm the effective date thereof, provide to Borrower and the Lenders a revised Schedule 1.1 giving effect thereto. Borrower, the Administrative Agent and the Lenders shall deem and treat the Persons listed as Lenders in the Register as the holders and owners effectiveness of the Pro Rata Shares of the Revolving Facility listed therein for all purposes hereof, and no assignment or transfer of any Lender’s rights and obligations hereunder shall be effective, in each case unless and until an Assignment and Acceptance effecting the assignment or transfer thereof shall have been accepted by the Administrative Agent and recorded in the Register as provided above. Prior to such recordation, all amounts owed with respect to the applicable Pro Rata Share of the Revolving Facility shall be owed to the Lender listed in the Register as the owner thereofparties thereto, Parent and any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is listed in the Register as a Lender shall be conclusive and binding on any subsequent holder, assignee or transferee of the corresponding Pro Rata Share of the Revolving FacilityBorrowers.
(e) Each Lender may from time to time grant participations in a portion of its Pro Rata Share, in each case to one or more banks or other financial institutions in or to all or a portion of its rights and/or obligations under this Agreement(INCLUDING another Lender); providedPROVIDED, howeverHOWEVER, that (i) such Lender’s 's obligations under this Agreement the Loan Documents shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) the participating banks or other financial institutions shall not be a Lender hereunder for any purpose exceptEXCEPT, if the participation agreement so provides, for the purposes of Sections 3.5, 3.6, 11.11 3.7 and 11.21 11.10, but only to the extent that the cost of such benefits to Borrower Parent and Borrowers does not exceed the cost which Borrower Parent and the Borrowers would have incurred in respect of the such Lender granting such participation absent the participation, (iv) BorrowerParent, the Administrative Agent Borrowers and the other Lenders Creditors shall continue to deal solely and directly with such Lender in connection with such Lender’s 's rights and obligations under this Agreement, (v) the participation interest shall be expressed as a percentage of the granting Lender’s Pro Rata Share of the Revolving Facility as it then exists and shall not restrict an increase in the Revolving Facility (or the aggregate Commitments pertaining thereto)Commitment, or in the granting Lender’s rights and obligations hereunder's Pro Rata Share, so long as the amount of the participation interest is not affected thereby thereby, and (vi) the consent of the holder of such participation interest shall not be required for amendments or waivers of provisions of the Loan Documents other than OTHER THAN those which (A) extend any Amortization Date, any applicable the Maturity Date or any other date upon which any payment of money is due to the LendersLender granting the participation, (B) reduce the rate of interest on the NotesNotes of such Lender, any fee or any other monetary amount payable to the Lendersthat Lender, or (C) reduce the amount of any installment of principal due under the Notes, or (D) release any Guarantor from its GuarantyNotes of that Lender.
(f) Borrower agrees that upon the occurrence and during the continuance of any Event of Default, each Lender shall be entitled to assign its rights hereunder and under the Loan Documents, or grant participation interests Notwithstanding anything in its rights under this Agreement and the Loan Documents, to any Person, in whole or in any part thereof, notwithstanding any provisions contained herein (including those set forth in subsection (b) above) or in any other Loan Document Section to the contrary, except thatthe rights of the Lenders to make assignment of, other than and grant participations in, their Pro Rata Share of the Commitment shall be subject to the approval of any Gaming Board, to the extent required by applicable Gaming Laws.
(g) Notwithstanding anything to the contrary contained herein, any Lender (a "Granting Lender") may grant to a special purpose funding vehicle (an "SPC") of such Granting Lender, identified as such in writing from time to time by the Granting Lender to the Administrative Agent, Parent and the Borrowers, the option to provide to the Borrowers all or any part of any Loan that such Granting Lender would otherwise be obligated to make to the Borrowers pursuant to Sections 2.1, 2.2 or 2.3, provided that (i) assignments nothing herein shall constitute a commitment to make any Loan by any SPC and (ii) if an SPC elects not to exercise such option or otherwise fails to provide all or any part of such Loan, the Granting Lender shall be obligated to make such Loan pursuant to the terms hereof. The making of a Loan by an SPC hereunder shall utilize the Commitment of the Granting Lender to an Affiliate the same extent, and as if, such Loan were made by the Granting Lender. Each party hereto hereby agrees that no SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the related Granting Lender). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding senior indebtedness of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings or similar proceedings under the laws of the United States or any State thereof, PROVIDED THAT the Granting Lender for each SPC hereby agrees to indemnify, save, and hold harmless each other party hereto for any loss, cost, damage and expense arising out of their inability to institute any such proceeding against its SPC. In addition, notwithstanding anything to the contrary contained in this Section 11.8, any SPC may (i) with notice to, but without the prior written consent of, Parent, the Borrowers or the Administrative Agent and without paying any processing fee therefor, assign all or a portion of its interests in any Loans to its Granting Lender or to another any financial institutions providing liquidity and/or credit facilities to or for the account of such SPC to fund the Loans made by such SPC or to support the securities (if any) issued by such SPC to fund such Loans (but nothing contained herein shall be construed in derogation of the obligation of the Granting Lender to make Loans hereunder), PROVIDED THAT neither the consent of the SPC or of any such assignee shall be required for amendments or waivers of provisions of the Loan Documents except for those amendments or waivers for which the consent of participants is required under Section 11.8(e)(vi), and (ii) pledges disclose on a confidential basis (in the same manner described in the last sentence Section 11.13) any non-public information relating to its Loans to any rating agency, commercial paper dealer or provider of subsection (a) abovea surety, no assignment shall be made without the approval of the Administrative Agentguarantee or credit or liquidity enhancement to such SPC.
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Binding Effect; Assignment. (a) 12.8.1 This Agreement and the other Loan Documents to which Borrower is a Party party will be binding upon and inure to the benefit of Borrower, the Administrative Agent, each of the Lenders, and their respective successors and assigns, except that Borrower may not assign its rights hereunder or thereunder or any interest herein or therein without the prior written consent of all the Lenders. Each Lender represents that it is not acquiring its Note with a view to the distribution thereof within the meaning of the Securities Act of 1933, as amended (subject to any requirement that disposition of such Note must be within the control of such Lender). Any Lender may at any time pledge its Note or any other instrument evidencing its rights as a Lender lender under this Agreement to a Federal Reserve Bank, but no such pledge shall release that Lender lender from its obligations hereunder or grant to such Federal Reserve Bank the rights of a Lender hereunder absent foreclosure of such pledge.
(b) 12.8.2 From time to time following the Closing Date, each Lender may assign to one or more Eligible Assignees all or any portion of its rights and obligations under this Agreement (including all or a portion Pro Rata Share of its the Revolving Commitment, the Advances owing to it and the Note or Notes held by it); provided that, subject to subsection (f) below, that (i) such Eligible Assignee, if not then a Lender or an Affiliate of the assigning Lender, shall be approved by the Administrative Agent and Borrower (neither and, provided no Default or Event of Default then exists, Borrower, which approvals approval(s) shall not be unreasonably withheld withheld, conditioned or delayed), ; (ii) such assignment shall be evidenced by an a Commitment Assignment and Acceptance, a copy of which shall be furnished to the Administrative Agent as hereinbelow provided, provided below; (iii) except in the case of an assignment (a) to an Affiliate of the assigning Lender, Lender or to another Lender or (b) of the entire remaining rights and obligations Revolving Commitment of the assigning Lender under this AgreementLender, the assignment shall not assign a portion Pro Rata Share of such assigning Lender’s Commitments and/or Advances owing to such assigning Lender the Revolving Commitment that is equivalent to less than $3,000,000, and 5,000,000.00; (iv) the effective date of any such assignment shall be as specified in the Commitment Assignment and Acceptance, but not earlier than the date which is five (5) Banking Business Days after the date the Administrative Agent has received the Commitment Assignment and Acceptance; and (v) such Eligible Assignee shall execute an Alternative Dispute Resolution Agreement, in form and substance satisfactory to Agent. Upon the effective date of such Commitment Assignment and Acceptance, the Eligible Assignee named therein shall be a Lender for all purposes of this Agreement, with the Commitments and/or Advances Pro Rata Share of the Revolving Commitment therein set forth and, to the extent of such Commitments and/or AdvancesPro Rata Share, the assigning Lender shall be released from its further obligations under this Agreement. Borrower agrees that it shall execute and deliver (against delivery by the assigning Lender to Borrower of such Lender’s Notesits Note(s)) to such assignee Lender, Notes Note(s) evidencing that assignee Lender’s Commitments and/or AdvancesPro Rata Share of the Revolving Commitment, and to the assigning Lender, Notes Note(s) evidencing the remaining balance of the Commitments and/or Advances Pro Rata Share retained by the assigning Lender.
(c) 12.8.3 By executing and delivering an a Commitment Assignment and Acceptance, the Eligible Assignee thereunder acknowledges and agrees that: (i) other than the representation and warranty that it is the legal and beneficial owner of the rights and obligations hereunder Pro Rata Share of the Revolving Commitment being assigned thereby free and clear of any adverse claim, the assigning Lender has made 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 or sufficiency of this Agreement or any other Loan Document; (ii) the assigning Lender has made no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance by Borrower of the Obligations; (iii) it has received a copy of this Agreement, together with copies of the most recent financial statements Financial Statements delivered pursuant to Section 7.1 8 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Commitment Assignment and Acceptance; (iv) it will, independently and without reliance upon the Administrative Agent or any Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) it appoints and authorizes the Administrative Agent to take such action and to exercise such powers under this Agreement as are delegated to the Administrative Agent by this Agreement; and (vi) 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.
(d) The Administrative 12.8.4 Agent shall maintain at the Administrative Agent’s Office a copy of each Commitment Assignment and Acceptance delivered to it and a register (the “Register”) of the names and address of each of the Lenders and the Pro Rata Share of the Commitments held by each Lender, giving effect to each Commitment Assignment and Acceptance. The Register shall be available during normal business hours for inspection by Borrower or any Lender upon reasonable prior notice to the Administrative Agent. After receipt of a completed Commitment Assignment and Acceptance executed by any Lender and an Eligible Assignee, and receipt of an a non-refundable assignment fee of Three Thousand Five Hundred Dollars ($3,500 3,500.00) from such Lender or Eligible Assignee, the Administrative Agent shall, promptly following the effective date thereof, provide to Borrower and the Lenders a revised Schedule 1.1 A giving effect thereto. Borrower, the Administrative Agent and the Lenders shall deem and treat the Persons listed as Lenders in the Register as the holders and owners of the Pro Rata Shares Share of the Revolving Facility Commitment listed therein for all purposes hereof, and no assignment or transfer of any Lender’s rights and obligations hereunder such Pro Rata Share of the Revolving Commitment shall be effective, in each case unless and until an a Commitment Assignment and Acceptance effecting the assignment or transfer thereof shall have been accepted by the Administrative Agent and recorded in the Register as provided above. Prior to such recordation, all amounts owed with respect to the applicable Pro Rata Share of the Revolving Facility Commitment shall be owed to the Lender listed in the Register as the owner thereof, and any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is listed in the Register as a Lender shall be conclusive and binding on any subsequent holder, assignee or transferee of the corresponding Pro Rata Share of the Revolving FacilityCommitment.
(e) 12.8.5 Each Lender may from time to time grant participations to one or more banks or other financial institutions (a “Participant”) in or to all or a portion of its rights and/or obligations under this AgreementPro Rata Share of the Revolving Commitment; provided, however, that (i) such Lender’s obligations under this Agreement shall remain unchanged, ; (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, ; (iii) the participating banks or other financial institutions shall not be a Lender hereunder for any purpose except, if the participation agreement so provides, (A) for the purposes of Sections 3.5, 3.6, 11.11 and 11.21 Section 12.2.5 but only to the extent that the cost of such benefits to Borrower does not exceed the cost which Borrower would have incurred in respect of such Lender absent the participation and (B) for the purposes of Sections 2.17, 14.1, and 14.2 (subject to the requirements and limitations therein, including the requirements under Section 2.17(e) (it being understood that the documentation required under Section 2.17(e) shall be delivered to the Lender granting such participation absent who sells the participation)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to Section 12.8.2; provided, that, such participating bank (1) agrees to be subject to the provisions of Section 12.10 as if it were an assignee under Section 12.8.2, and (2) shall not be entitled to receive any greater payment under Sections 2.17, 14.1, and 14.2, with respect to any participation, than the Lender from whom it acquired the applicable participation would have been entitled to receive; (iv) Borrower, the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement, ; (v) the participation interest shall be expressed as a percentage of the granting Lender’s Pro Rata Share of the Revolving Facility Commitment as it then exists and shall not restrict an increase in the Revolving Facility (or the aggregate Commitments pertaining thereto), or in the granting Lender’s rights and obligations hereunderPro Rata Share of the Revolving Commitment, so long as the amount of the participation interest is not affected thereby thereby; and (vi) the consent of the holder of such participation interest shall not be required for amendments or waivers of provisions of the Loan Documents other than those which (A) extend any Amortization Date, any applicable the Maturity Date or any other date upon which any payment of money is due to the Lenders, (B) reduce the rate of interest on the Notes, any fee or any other monetary amount payable to the Lenders, (C) reduce the amount of any installment of principal due under the Notes, or (D) release any Guarantor material Collateral from its Guaranty.
(f) Borrower agrees that upon the occurrence and during Lien of the continuance of any Event of Default, each Lender shall be entitled to assign its rights hereunder and under the Loan Collateral Documents, or grant participation interests except if such release of material Collateral occurs in its rights connection with a disposition permitted under this Agreement or Section 3.7, in which case such release shall not require the consent of any of the Lenders or of any holder of a participation interest in the Revolving Commitment. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant's interest in the Loans or other obligations under any Loan DocumentsDocument (the "Participant Register"); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant's interest in any Revolving Commitments, Loans, or its other obligations under any Loan Document) to any Person, in whole or in any part thereof, notwithstanding any provisions contained herein (including those set forth in subsection (b) above) or in any other Loan Document Person except to the contraryextent that such disclosure is necessary to establish that such Revolving Commitment, except thatLoan, or other than (iobligation is in registered form under Section 5f.103-1(c) assignments by a Lender to an Affiliate of such Lender or to another Lender or (ii) pledges described in the last sentence of subsection (a) above, no assignment shall be made without the approval of the Administrative AgentUnited States Treasury Regulations.
Appears in 1 contract
Binding Effect; Assignment. (a) This Agreement shall become effective when it shall have been executed by the Borrowers and the other Loan Documents to which Borrower is a Party will Administrative Agent and when the Administrative Agent shall have been notified by each Bank that such Bank has executed it and thereafter shall be binding upon and inure to the benefit of Borrowerthe Borrowers, the Administrative Agent, Agent and each of the Lenders, Bank and their respective successors and assigns, except that no Borrower may not shall have the right to assign its rights hereunder or thereunder or any interest herein or therein without the prior written consent of all the Lenders. Each Lender represents that it is not acquiring its Note with a view to the distribution thereof within the meaning of the Securities Act of 1933, as amended (subject to any requirement that disposition of such Note must be within the control of such Lender). Any Lender may at any time pledge its Note or any other instrument evidencing its rights as a Lender under this Agreement to a Federal Reserve Bank, but no such pledge shall release that Lender from its obligations hereunder or grant to such Federal Reserve Bank the rights of a Lender hereunder absent foreclosure of such pledgeBanks.
(b) From time Any Bank may assign, participate or otherwise transfer all or any part of, or interest in, such Bank’s rights and obligations hereunder and under the Notes issued to time following the Closing Date, each Lender may assign it hereunder to one or more Eligible Assignees banks or other entities (excluding natural persons and Persons which are not Qualifying Banks); provided that (i) in the case of any assignment or other transfer (other than a participation) to a Person that is not a Bank, an Affiliate of a Bank or an Approved Fund, the Borrowers (except during the continuance of an Event of Default), the Issuing Banks, the Swingline Banks and the Administrative Agent, in each case whose consent shall not be unreasonably withheld or delayed, shall have expressly agreed in writing; provided that a material increase in counterparty risk shall be reasonable grounds (although not exclusive grounds) for the withholding of such consent; and further provided that each Borrower shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to the Administrative Agent within ten (10) Business Days after having received notice thereof; (ii) in the case of any assignment in part, the amount of the Commitment being assigned pursuant to such assignment shall in no event be less than €5,000,000 (or a lesser amount approved by the Administrative Agent and, except during the continuance of an Event of Default, the Borrowers); and (iii) any participation shall be in compliance with Section 11.06(f). Upon the effectiveness of any such assignment (but not in the event of any such participation or other transfer), such assignee shall be a Bank hereunder and shall have all the rights and benefits thereof. However, unless and until the conditions for the Administrative Agent’s treating such assignee as holder pursuant to clause (c) below shall have been satisfied, such assignee shall not be entitled to exercise the rights of a Bank under this Agreement and the Administrative Agent shall not be obligated to make payment of any amount to which such assignee may become entitled hereunder other than to the Bank which assigned its rights to such assignee. Nothing contained herein shall impair the ability of any Bank, in its discretion, to agree, solely as between itself and its assignees, participants and other transferees, upon the manner in which such Bank shall exercise its rights under this Agreement and the Notes made to such Bank. The assignee, if it shall not already be a Bank, shall deliver to the Administrative Agent an Administrative Questionnaire in which the assignee designates one or more credit contacts to whom all syndicate-level information (which may contain material non-public information about the Borrowers and their affiliates and their Related Parties or their respective securities) will be made available and who may receive such information in accordance with the assignee’s compliance procedures and applicable laws, including Federal and state securities laws.
(c) In order to effect any assignment permitted hereunder by a Bank of all or any portion of its Commitment hereunder, the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register (as defined below), an agreement substantially in the form of Exhibit 11.06 hereto (an “Assignment and Acceptance”), together with any Note or Notes subject to such assignment and a processing and recordation fee of $3,500 payable by the assignor or assignee. Upon such execution, delivery, acceptance and recording and delivery to the Administrative Agent of such assignee’s Administrative Questionnaire, from and after the effective date specified in each Assignment and Acceptance, (x) the assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, have the rights and obligations of a Bank hereunder and (y) the Bank assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights 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 Bank’s rights and obligations under this Agreement (including all or Agreement, such Bank shall cease to be a portion of its Commitment, the Advances owing party hereto but shall continue to it and the Note or Notes held by it); provided that, subject to subsection (f) below, (i) such Eligible Assignee, if not then a Lender or an Affiliate of the assigning Lender, shall be approved by the Administrative Agent and Borrower (neither of which approvals shall be unreasonably withheld or delayed), (ii) such assignment shall be evidenced by an Assignment and Acceptance, a copy of which shall be furnished entitled to the Administrative Agent as hereinbelow providedbenefits of Sections 5.13, (iii) except in the case of an assignment to an Affiliate of the assigning Lender, to another Lender 5.15 and 11.04 for any events or of the entire remaining rights and obligations of the assigning Lender under this Agreement, the assignment shall not assign a portion of such assigning Lender’s Commitments and/or Advances owing to such assigning Lender that is equivalent to less than $3,000,000, and (iv) circumstances occurring or existing before the effective date of any such assignment shall be as specified in the Assignment and Acceptance, but not earlier than the date which is five (5) Banking Days after the date the Administrative Agent has received the Assignment and Acceptance. Upon the effective date of such Assignment and Acceptance, the Eligible Assignee named therein shall be a Lender for all purposes of this Agreement, with the Commitments and/or Advances therein set forth and, to the extent of such Commitments and/or Advances, the assigning Lender shall be released from its further obligations under this Agreement. Borrower agrees that it shall execute and deliver (against delivery by the assigning Lender to Borrower of such Lender’s Notes) to such assignee Lender, Notes evidencing that assignee Lender’s Commitments and/or Advances, and to the assigning Lender, Notes evidencing the remaining balance of the Commitments and/or Advances retained by the assigning Lenderassignment).
(cd) By executing and delivering an Assignment and Acceptance, the Eligible Assignee Bank assignor thereunder acknowledges and agrees thatthe assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than the representation as provided in such Assignment and warranty that it is the legal and beneficial owner of the rights and obligations hereunder being assigned thereby free and clear of any adverse claimAcceptance, the such assigning Lender has made Bank makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness genuineness, sufficiency or sufficiency value of this Agreement or any other Loan Documentinstrument or document furnished pursuant hereto; (ii) the such assigning Lender has made Bank makes no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower any Loan Party or the performance or observance by Borrower any Loan Party of the Obligationsany of its obligations under this Agreement or any other instrument or document furnished pursuant hereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the most recent financial statements referred to in Section 11(f) of the Guaranty (and any later statements delivered pursuant to Section 7.1 12(a) of the Guaranty) 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) it such assignee will, independently and without reliance upon the Administrative Agent Agent, such assigning Bank or any Lender other Bank and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) it 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 as are delegated to the Administrative Agent by this Agreementthe 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 LenderBank.
(de) The Administrative Agent Agent, acting solely for this purpose as a non-fiduciary agent of the Borrowers, shall maintain at the Administrative Agent’s Office its address referred to in Section 11.02 a copy of each Assignment and Acceptance delivered to and accepted by it and a register for the recordation of the names and addresses of the Banks and the Commitment of, and principal amount of (and stated interest on) the Advances owing to, each Bank from time to time (the “Register”) of ). The entries in the names Register shall be conclusive and address of each of the Lenders binding for all purposes, absent manifest error, and the Pro Rata Share Borrowers, the Administrative Agent and the Banks shall treat each Person whose name is recorded in the Register as a Bank hereunder for all purposes of the Commitments held by each Lender, giving effect to each Assignment and Acceptancethis Agreement. The Register shall be available during normal business hours for inspection by any Borrower or any Lender upon Bank at any reasonable prior notice to the Administrative Agent. After receipt of a completed Assignment time and Acceptance executed by any Lender and an Eligible Assignee, and receipt of an assignment fee of $3,500 from such Lender or Eligible Assignee, the Administrative Agent shall, promptly following the effective date thereof, provide to Borrower and the Lenders a revised Schedule 1.1 giving effect thereto. Borrower, the Administrative Agent and the Lenders shall deem and treat the Persons listed as Lenders in the Register as the holders and owners of the Pro Rata Shares of the Revolving Facility listed therein for all purposes hereof, and no assignment or transfer of any Lender’s rights and obligations hereunder shall be effective, in each case unless and until an Assignment and Acceptance effecting the assignment or transfer thereof shall have been accepted by the Administrative Agent and recorded in the Register as provided above. Prior to such recordation, all amounts owed with respect to the applicable Pro Rata Share of the Revolving Facility shall be owed to the Lender listed in the Register as the owner thereof, and any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is listed in the Register as a Lender shall be conclusive and binding on any subsequent holder, assignee or transferee of the corresponding Pro Rata Share of the Revolving Facility.
(e) Each Lender may from time to time grant upon reasonable prior notice.
(f) Any Bank may, without the consent of the Borrowers, the Administrative Agent, the Issuing Banks or the Swingline Banks (but with notice to the Borrowers, unless such participation is sold to an Affiliate of such Bank), sell to any Person (other than a Person which is not a Qualifying Bank, a natural Person, a Defaulting Bank or any Borrower or any Borrower’s Affiliates or Subsidiaries) (each, a “Participant”) participations to one in all or more banks or other financial institutions in or to a portion of such Bank’s rights and/or obligations under this Agreement (including all or a portion of its rights Commitment and/or obligations under this Agreementthe Advances (including such Bank’s participations in Swingline Loans) owing to it); provided, however, provided that (i) such LenderBank’s obligations under this Agreement shall remain unchanged, (ii) such Lender Bank shall remain solely responsible to the other parties hereto for the performance of such obligations, obligations and (iii) the participating banks or other financial institutions shall not be a Lender hereunder for any purpose except, if the participation agreement so provides, for the purposes of Sections 3.5, 3.6, 11.11 and 11.21 but only to the extent that the cost of such benefits to Borrower does not exceed the cost which Borrower would have incurred in respect of the Lender granting such participation absent the participation, (iv) BorrowerBorrowers, the Administrative Agent and the other Lenders Banks shall continue to deal solely and directly with such Lender Bank in connection with such LenderBank’s rights and obligations under this Agreement. For the avoidance of doubt, (v) the participation interest each Bank shall be expressed as responsible for the indemnity under Section 10.05 without regard to the existence of any participation. Any agreement or instrument pursuant to which a percentage Bank sells such a participation shall provide that such Bank shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of the granting Lender’s Pro Rata Share any provision of the Revolving Facility as it then exists and shall not restrict an increase in the Revolving Facility (this Agreement; provided that such agreement or the aggregate Commitments pertaining thereto)instrument may provide that such Bank will not, or in the granting Lender’s rights and obligations hereunder, so long as the amount of the participation interest is not affected thereby and (vi) without the consent of the holder Participant, agree to any amendment, waiver or other modification described in the third sentence of Section 11.01 that affects such participation interest shall not be required for amendments or waivers of provisions of the Loan Documents other than those which (A) extend any Amortization Date, any applicable Maturity Date or any other date upon which any payment of money is due to the Lenders, (B) reduce the rate of interest on the Notes, any fee or any other monetary amount payable to the Lenders, (C) reduce the amount of any installment of principal due under the Notes, or (D) release any Guarantor from its Guaranty.
(f) Borrower agrees Participant. The Borrowers agree that upon the occurrence and during the continuance of any Event of Default, each Lender Participant shall be entitled to assign the benefits of Sections 5.13 and 5.15 to the same extent as if it were a Bank and had acquired its rights hereunder interest by assignment pursuant to this Section (it being understood that the documentation required under Section 5.15(f) shall be delivered to the Borrowers and Administrative Agent) to the same extent as if it were a Bank and had acquired its interest by assignment; provided that such Participant (A) agrees to be subject to the provisions of Section 5.18 and of the last sentence of Section 5.11 as it if were an assignee under paragraph (b) of this Section; and (B) shall not be entitled to receive any greater payment under Sections 5.13 or 5.15 with respect to any participation, than the Bank from whom it acquired the applicable participation would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation. Each Bank that sells participation agrees, at the request and expense of any Borrower, to use reasonable efforts to cooperate with such Borrower to effectuate the provisions of Section 5.18 with respect to any Participant. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 11.05 as though it were a Bank; provided that such Participant agrees to be subject to Section 5.17 as though it were a Bank. Each Bank that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrowers, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Advances or other obligations under the Loan DocumentsDocuments (the “Participant Register”); provided that no Bank shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans or grant participation interests its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Bank shall treat each Person whose name is recorded in the Participant Register as the owner of such participations for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its rights capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
(g) Notwithstanding anything contained herein to the contrary, each Bank may pledge its right, title and interest under this Agreement and any Note made to it to the Loan DocumentsBoard of Governors of the Federal Reserve System, to any Person, in whole or in any part thereof, notwithstanding any provisions contained herein (including those set forth in subsection (b) above) or in any other Loan Document Governmental Authority, as security for financial accommodations or privileges being provided or extended to the contrary, except that, other than (i) assignments such Bank by a Lender to an Affiliate of such Lender or to another Lender or (ii) pledges described in the last sentence of subsection (a) above, no assignment shall be made without the approval of the Administrative AgentGovernmental Authority.
Appears in 1 contract
Binding Effect; Assignment. (a) This Agreement and the other Loan Documents to which Borrower is a Party will shall be binding upon and inure to the benefit of Borrower, the Administrative Agent, each of the Lenders, parties and their respective successors and permitted assigns. Nothing in this Agreement shall create or be deemed to create any third party beneficiary rights in any Person or entity not a party to this Agreement. No assignment of this Agreement or of any rights or obligations hereunder may be made by any Management Holder, except that Borrower may not assign its rights hereunder the Management Holder Representative or thereunder TUNI, directly or any interest herein indirectly (by operation of law or therein otherwise), without the prior written consent of all the Lenders. Each Lender represents other parties hereto and any attempted assignment without the required consents shall be void; provided that (a) TUNI may assign it is not acquiring its Note with a view to the distribution thereof within the meaning of the Securities Act of 1933rights, as amended (subject interests and obligations hereunder to any requirement that disposition of such Note must be within its Affiliates without the control consent of such Lender). Any Lender may at any time pledge its Note or any other instrument evidencing its rights as a Lender under this Agreement to a Federal Reserve Bankparty hereto, but no such pledge provided that TUNI shall release that Lender from not be relieved of its obligations hereunder or grant to such Federal Reserve Bank the rights of a Lender hereunder absent foreclosure of such pledge.
hereunder; (b) From time to time following the Closing Date, each Lender TUNI may assign to one or more Eligible Assignees all or any portion of its rights obligations under Article IV in connection with a Third Party Sale as provided in Article VI and (c) the Management Holder Representative may, with such consent, assign it rights, interests and obligations under this hereunder to a successor “Seller Representative” in accordance with Section 11.10 of the Purchase Agreement (including all or a portion who shall serve as successor Management Holder Representative). No assignment of its Commitment, any obligations hereunder shall relieve the Advances owing to it and the Note or Notes held by it); provided that, subject to subsection (f) below, (i) such Eligible Assignee, if not then a Lender or an Affiliate of the assigning Lender, shall be approved by the Administrative Agent and Borrower (neither of which approvals shall be unreasonably withheld or delayed), (ii) such assignment shall be evidenced by an Assignment and Acceptance, a copy of which shall be furnished to the Administrative Agent as hereinbelow provided, (iii) except in the case of an assignment to an Affiliate of the assigning Lender, to another Lender or of the entire remaining rights and obligations of the assigning Lender under this Agreement, the assignment shall not assign a portion of such assigning Lender’s Commitments and/or Advances owing to such assigning Lender that is equivalent to less than $3,000,000, and (iv) the effective date parties hereto of any such assignment shall be as specified in the Assignment and Acceptance, but not earlier than the date which is five (5) Banking Days after the date the Administrative Agent has received the Assignment and Acceptance. Upon the effective date of such Assignment and Acceptance, the Eligible Assignee named therein shall be a Lender for all purposes of this Agreement, with the Commitments and/or Advances therein set forth and, to the extent of such Commitments and/or Advances, the assigning Lender shall be released from its further obligations under this Agreement. Borrower agrees that it shall execute and deliver (against delivery by the assigning Lender to Borrower of such Lender’s Notes) to such assignee Lender, Notes evidencing that assignee Lender’s Commitments and/or Advances, and to the assigning Lender, Notes evidencing the remaining balance of the Commitments and/or Advances retained by the assigning Lender.
(c) By executing and delivering an Assignment and Acceptance, the Eligible Assignee thereunder acknowledges and agrees that: (i) other than the representation and warranty that it is the legal and beneficial owner of the rights and obligations hereunder being assigned thereby free and clear of any adverse claim, the assigning Lender has made 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 or sufficiency of this Agreement or any other Loan Document; (ii) the assigning Lender has made no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance by Borrower of the Obligations; (iii) it has received a copy of this Agreement, together with copies of the most recent financial statements delivered pursuant to Section 7.1 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) it will, independently and without reliance upon the Administrative Agent or any Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) it appoints and authorizes the Administrative Agent to take such action and to exercise such powers under this Agreement as are delegated to the Administrative Agent by this Agreement; and (vi) 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.
(d) The Administrative Agent shall maintain at the Administrative Agent’s Office a copy of each Assignment and Acceptance delivered to it and a register (the “Register”) of the names and address of each of the Lenders and the Pro Rata Share of the Commitments held by each Lender, giving effect to each Assignment and Acceptance. The Register shall be available during normal business hours for inspection by Borrower or any Lender upon reasonable prior notice to the Administrative Agent. After receipt of a completed Assignment and Acceptance executed by any Lender and an Eligible Assignee, and receipt of an assignment fee of $3,500 from such Lender or Eligible Assignee, the Administrative Agent shall, promptly following the effective date thereof, provide to Borrower and the Lenders a revised Schedule 1.1 giving effect thereto. Borrower, the Administrative Agent and the Lenders shall deem and treat the Persons listed as Lenders in the Register as the holders and owners of the Pro Rata Shares of the Revolving Facility listed therein for all purposes hereof, and no assignment or transfer of any Lender’s rights and obligations hereunder shall be effective, in each case unless and until an Assignment and Acceptance effecting the assignment or transfer thereof shall have been accepted by the Administrative Agent and recorded in the Register as provided above. Prior to such recordation, all amounts owed with respect to the applicable Pro Rata Share of the Revolving Facility shall be owed to the Lender listed in the Register as the owner thereof, and any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is listed in the Register as a Lender shall be conclusive and binding on any subsequent holder, assignee or transferee of the corresponding Pro Rata Share of the Revolving Facility.
(e) Each Lender may from time to time grant participations to one or more banks or other financial institutions in or to all or a portion of its rights and/or obligations under this Agreementobligations; provided, however, that a Management Holder Representative shall be relieved of its obligations hereunder upon appointment of a successor “ Seller Representative” in accordance with Section 11.10 of the Purchase Agreement (i) who shall serve as successor Management Holder Representative). Upon any such Lender’s obligations under permitted assignment by TUNI or the Management Holder Representative, the references in this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) the participating banks or other financial institutions shall not be a Lender hereunder for any purpose except, if the participation agreement so provides, for the purposes of Sections 3.5, 3.6, 11.11 and 11.21 but only to the extent that the cost of such benefits to Borrower does not exceed the cost which Borrower would have incurred in respect of the Lender granting such participation absent the participation, (iv) Borrower, the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement, (v) the participation interest shall be expressed as a percentage of the granting Lender’s Pro Rata Share of the Revolving Facility as it then exists and shall not restrict an increase in the Revolving Facility (TUNI or the aggregate Commitments pertaining thereto)Management Holder Representative, respectively, shall also apply to TUNI’s or in the granting LenderManagement Holder Representative’s rights and obligations hereunderassignee, so long as the amount of case may be, unless the participation interest is not affected thereby and (vi) the consent of the holder of such participation interest shall not be required for amendments or waivers of provisions of the Loan Documents other than those which (A) extend any Amortization Date, any applicable Maturity Date or any other date upon which any payment of money is due to the Lenders, (B) reduce the rate of interest on the Notes, any fee or any other monetary amount payable to the Lenders, (C) reduce the amount of any installment of principal due under the Notes, or (D) release any Guarantor from its Guarantycontext otherwise requires.
(f) Borrower agrees that upon the occurrence and during the continuance of any Event of Default, each Lender shall be entitled to assign its rights hereunder and under the Loan Documents, or grant participation interests in its rights under this Agreement and the Loan Documents, to any Person, in whole or in any part thereof, notwithstanding any provisions contained herein (including those set forth in subsection (b) above) or in any other Loan Document to the contrary, except that, other than (i) assignments by a Lender to an Affiliate of such Lender or to another Lender or (ii) pledges described in the last sentence of subsection (a) above, no assignment shall be made without the approval of the Administrative Agent.
Appears in 1 contract
Samples: Agreement With Respect to Certain Shares and Options (TransUnion)
Binding Effect; Assignment. (a) This Agreement and the other Loan Documents to which Borrower is a Party will shall be binding upon and inure to the benefit of Borrower, the Administrative Agent, each of the Lenders, parties and their respective successors successors, permitted assigns and assignslegal representatives. Neither this Agreement or any of the Ancillary Agreements, except that Borrower may not assign its rights nor any of the rights, interests or obligations hereunder or thereunder thereunder, may be assigned, in whole or in part, by operation of law or otherwise by Parent or any interest herein or therein Seller without the prior written consent of all the Lenders. Each Lender represents Purchaser and any such assignment that it is not acquiring its Note with a view consented to the distribution thereof within the meaning of the Securities Act of 1933shall be null and void. Purchaser, as amended (subject to any requirement that disposition of such Note must be within the control of such Lender). Any Lender Purchaser Parent and Holdco may at any time pledge its Note or any other instrument evidencing its rights as a Lender under this Agreement to a Federal Reserve Bank, but no such pledge shall release that Lender from its obligations hereunder or grant to such Federal Reserve Bank the rights of a Lender hereunder absent foreclosure of such pledge.
(b) From time to time following the Closing Date, each Lender may transfer and assign to one or more Eligible Assignees all Persons, which may be a Newco Insurance Company or any portion of its rights and obligations under this Agreement (including all or a portion of its Commitment, the Advances owing to it and the Note or Notes held by it); provided that, subject to subsection (f) below, (i) such Eligible Assignee, if not then a Lender or an other wholly owned Affiliate of the assigning LenderPurchaser, shall be approved by the Administrative Agent and Borrower (neither of which approvals shall be unreasonably withheld some or delayed), (ii) such assignment shall be evidenced by an Assignment and Acceptance, a copy of which shall be furnished to the Administrative Agent as hereinbelow provided, (iii) except in the case of an assignment to an Affiliate all of the assigning Lender, to another Lender or of the entire remaining rights Transferred Assets and obligations of the assigning Lender under this Agreement, the assignment shall not assign a portion of such assigning Lender’s Commitments and/or Advances owing to such assigning Lender that is equivalent to less than $3,000,000Other Assumed Liabilities, and (iv) the effective date of any such assignment shall be as specified in the Assignment and Acceptance, but not earlier than the date which is five (5) Banking Days after the date the Administrative Agent has received the Assignment and Acceptance. Upon the effective date of such Assignment and Acceptance, the Eligible Assignee named therein shall be a Lender for some or all purposes of this Agreement, with the Commitments and/or Advances therein set forth and, to the extent of such Commitments and/or Advances, the assigning Lender shall be released from its further obligations under this Agreement. Borrower agrees that it shall execute and deliver (against delivery by the assigning Lender to Borrower of such Lender’s Notes) to such assignee Lender, Notes evidencing that assignee Lender’s Commitments and/or Advances, and to the assigning Lender, Notes evidencing the remaining balance of the Commitments and/or Advances retained by the assigning Lender.
(c) By executing and delivering an Assignment and Acceptance, the Eligible Assignee thereunder acknowledges and agrees that: (i) other than the representation and warranty that it is the legal and beneficial owner of the rights and obligations hereunder being assigned thereby free of Purchaser, Purchaser Parent and clear Holdco under this Agreement and each of the Ancillary Agreements to which any adverse claimof them is a party, and any other agreements, documents or instruments executed by Purchaser, Purchaser Parent, Holdco, Sellers or Parent, as the assigning Lender has made no representation or warranty and assumes no responsibility with respect to any statementscase may be, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness or sufficiency of this Agreement or any other Loan Document; (ii) the assigning Lender has made no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance by Borrower of the Obligations; (iii) it has received a copy of this Agreement, together with copies of the most recent financial statements delivered pursuant to Section 7.1 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) it will, independently and without reliance upon the Administrative Agent or any Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action transactions under this Agreement; (v) it appoints and authorizes the Administrative Agent to take provided that all such action and to exercise such powers under this Agreement as are delegated to the Administrative Agent by this Agreement; and (vi) 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.
(d) The Administrative Agent shall maintain at the Administrative Agent’s Office a copy of each Assignment and Acceptance delivered to it and a register (the “Register”) of the names and address of each of the Lenders and the Pro Rata Share of the Commitments held by each Lenderassets, giving effect to each Assignment and Acceptance. The Register shall be available during normal business hours for inspection by Borrower or any Lender upon reasonable prior notice to the Administrative Agent. After receipt of a completed Assignment and Acceptance executed by any Lender and an Eligible Assigneeliabilities, and receipt of an assignment fee of $3,500 from such Lender or Eligible Assignee, the Administrative Agent shall, promptly following the effective date thereof, provide to Borrower and the Lenders a revised Schedule 1.1 giving effect thereto. Borrower, the Administrative Agent and the Lenders shall deem and treat the Persons listed as Lenders in the Register as the holders and owners of the Pro Rata Shares of the Revolving Facility listed therein for all purposes hereof, and no assignment or transfer of any Lender’s rights and obligations hereunder may be allocated among the Purchaser, Purchaser Parent, Holdco and any such transferee, as may be determined by Purchaser, in its sole discretion; and provided, further, that no such assignment shall limit or adversely affect in any manner whatsoever, Purchaser's indemnification rights hereunder. Purchaser, Purchaser Parent, Holdco, Parent and Sellers agree that, upon such transfers, assignments and assumptions, as the case may be, the transferee or transferees shall be effectivesubstituted for Purchaser, in each Purchaser Parent and Holdco, as the case unless may be, as if such transferee or transferees, as the case may be, were Purchaser, Purchaser Parent and until an Assignment Holdco, as the case may be hereunder and Acceptance effecting that Purchaser, Purchaser Parent and Holdco, as the assignment or transfer thereof shall have been accepted by the Administrative Agent and recorded in the Register as provided above. Prior to such recordationcase may be, all amounts owed with respect to the applicable Pro Rata Share of the Revolving Facility shall be owed to the Lender listed released and discharged in the Register as the owner thereof, all respects from any and all obligations or liabilities assumed by any request, authority such transferee or consent of any Person who, at the time of making such request or giving such authority or consent, is listed in the Register as a Lender shall be conclusive and binding on any subsequent holder, assignee or transferee of the corresponding Pro Rata Share of the Revolving Facility.
(e) Each Lender may from time to time grant participations to one or more banks or other financial institutions in or to all or a portion of its rights and/or obligations under this Agreementtransferees; provided, however, that (i) such Lender’s in the event that Purchaser assigns any or all of its obligations under this either Indemnity Reinsurance Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to a transferee insurance company which is not at the other parties hereto for the performance time of such obligationsassignment rated, (iii) as to its claims paying ability, after giving effect to such assignment, A- or better by Standard & Poor's or in the participating banks case of Allstate Floridian Insurance Company, Allstate Floridian Indemnity Company, Allstate New Jersey Insurance Company or other financial institutions any "single state" licensed property and casualty insurance company organized as a direct or indirect Subsidiary of Purchaser Parent to write personal lines insurance in Massachusetts B++ or higher by A.M. Best Company, Inc., Purchaser shall not be a Lender hereunder for any purpose except, if the participation agreement so provides, for the purposes of Sections 3.5, 3.6, 11.11 released and 11.21 but only discharged with respect to the extent that the cost of such benefits to Borrower does not exceed the cost which Borrower would have incurred in respect of the Lender granting such participation absent the participation, (iv) Borrower, the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights liabilities and obligations under this Agreement, (v) the participation interest assumed by such insurance company until such time as such insurance company shall be expressed rated as a percentage of the granting Lender’s Pro Rata Share of the Revolving Facility as it then exists and shall not restrict an increase in the Revolving Facility (or the aggregate Commitments pertaining thereto)to its claims paying ability at least A- by Standard & Poor's, or in the granting Lender’s rights and obligations hereundercase of Allstate Floridian Insurance Company, so long as the amount of the participation interest is not affected thereby and (vi) the consent of the holder of such participation interest shall not be required for amendments or waivers of provisions of the Loan Documents other than those which (A) extend any Amortization DateAllstate Floridian Indemnity Company, any applicable Maturity Date Allstate New Jersey Insurance Company or any other date upon which any payment "single state" licensed property and casualty insurance company organized as a direct or indirect Subsidiary of money is due Purchaser Parent to the Lenderswrite personal lines insurance in Massachusetts B++ or higher by A.M. Best Company, (B) reduce the rate of interest on the Notes, any fee or any other monetary amount payable to the Lenders, (C) reduce the amount of any installment of principal due under the Notes, or (D) release any Guarantor from its Guaranty.
(f) Borrower agrees that upon the occurrence and during the continuance of any Event of Default, each Lender shall be entitled to assign its rights hereunder and under the Loan Documents, or grant participation interests in its rights under this Agreement and the Loan Documents, to any Person, in whole or in any part thereof, notwithstanding any provisions contained herein (including those set forth in subsection (b) above) or in any other Loan Document to the contrary, except that, other than (i) assignments by a Lender to an Affiliate of such Lender or to another Lender or (ii) pledges described in the last sentence of subsection (a) above, no assignment shall be made without the approval of the Administrative Agent.Inc.
Appears in 1 contract
Samples: Asset Purchase and Investment Agreement (Cna Financial Corp)
Binding Effect; Assignment. (a) This Agreement and the other Loan Documents to which Borrower is a Party will shall be binding upon and inure to the benefit of Borrower, the Administrative Agent, each of Agent and the Lenders, Banks and their respective successors and assigns, except that Borrower may shall not have the right to assign its rights hereunder or thereunder or any interest herein or therein without the prior written consent of all the Lenders. Each Lender represents that it is not acquiring its Note with a view to the distribution thereof within the meaning of the Securities Act of 1933, as amended (subject to any requirement that disposition of such Note must be within the control of such Lender)Banks. Any Lender Bank may at any time pledge its Note or any other instrument evidencing its rights as a Lender under this Agreement to a Federal Reserve Bank, but no such pledge shall release that Lender from its obligations hereunder or grant to such Federal Reserve Bank the rights of a Lender hereunder absent foreclosure of such pledge.
(b) From time to time following the Closing Date, each Lender may assign to one or more Eligible Assignees all or any portion of its rights and obligations under this Agreement (including all or a portion of its Commitment, the Advances owing to it and the Note or Notes held by it); provided that, subject to subsection (f) below, (i) such Eligible Assignee, if not then a Lender or an Affiliate of the assigning Lender, shall be approved by the Administrative Agent and Borrower (neither of which approvals shall be unreasonably withheld or delayed), (ii) such assignment shall be evidenced by an Assignment and Acceptance, a copy of which shall be furnished to the Administrative Agent as hereinbelow provided, (iii) except in the case of an assignment to an Affiliate of the assigning Lender, to another Lender or of the entire remaining rights and obligations of the assigning Lender under this Agreement, the assignment shall not assign a portion of such assigning Lender’s Commitments and/or Advances owing to such assigning Lender that is equivalent to less than $3,000,000, and (iv) the effective date of any such assignment shall be as specified in the Assignment and Acceptance, but not earlier than the date which is five (5) Banking Days after the date the Administrative Agent has received the Assignment and Acceptance. Upon the effective date of such Assignment and Acceptance, the Eligible Assignee named therein shall be a Lender for all purposes of this Agreement, with the Commitments and/or Advances therein set forth and, to the extent of such Commitments and/or Advances, the assigning Lender shall be released from its further obligations under this Agreement. Borrower agrees that it shall execute and deliver (against delivery by the assigning Lender to Borrower of such Lender’s Notes) to such assignee Lender, Notes evidencing that assignee Lender’s Commitments and/or Advances, and to the assigning Lender, Notes evidencing the remaining balance of the Commitments and/or Advances retained by the assigning Lender.
(c) By executing and delivering an Assignment and Acceptance, the Eligible Assignee thereunder acknowledges and agrees that: (i) other than the representation and warranty that it is the legal and beneficial owner of the rights and obligations hereunder being assigned thereby free and clear of any adverse claim, the assigning Lender has made 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 or sufficiency of this Agreement or any other Loan Document; (ii) the assigning Lender has made no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance by Borrower of the Obligations; (iii) it has received a copy of this Agreement, together with copies of the most recent financial statements delivered pursuant to Section 7.1 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) it will, independently and without reliance upon the Administrative Agent or any Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) it appoints and authorizes the Administrative Agent to take such action and to exercise such powers under this Agreement as are delegated to the Administrative Agent by this Agreement; and (vi) 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.
(d) The Administrative Agent shall maintain at the Administrative Agent’s Office a copy of each Assignment and Acceptance delivered to it and a register (the “Register”) of the names and address of each of the Lenders and the Pro Rata Share of the Commitments held by each Lender, giving effect to each Assignment and Acceptance. The Register shall be available during normal business hours for inspection by Borrower or any Lender upon reasonable prior notice to the Administrative Agent. After receipt of a completed Assignment and Acceptance executed by any Lender and an Eligible Assignee, and receipt of an assignment fee of $3,500 from such Lender or Eligible Assignee, the Administrative Agent shall, promptly following the effective date thereof, provide to Borrower and the Lenders a revised Schedule 1.1 giving effect thereto. Borrower, the Administrative Agent and the Lenders shall deem and treat the Persons listed as Lenders in the Register as the holders and owners of the Pro Rata Shares of the Revolving Facility listed therein for all purposes hereof, and no assignment or transfer of any Lender’s rights and obligations hereunder shall be effective, in each case unless and until an Assignment and Acceptance effecting the assignment or transfer thereof shall have been accepted by the Administrative Agent and recorded in the Register as provided above. Prior to such recordation, all amounts owed with respect to the applicable Pro Rata Share of the Revolving Facility shall be owed to the Lender listed in the Register as the owner thereof, and any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is listed in the Register as a Lender shall be conclusive and binding on any subsequent holder, assignee or transferee of the corresponding Pro Rata Share of the Revolving Facility.
(e) Each Lender may from time to time grant participations to one or more banks or other financial institutions in or to entities ("Purchasers") all or a portion any part of its Loans, Commitments and its rights and/or and obligations under its Note and under this Agreement. Such assignment shall be in substantially the form of Exhibit D. Each such assignment shall either be in an amount equal to the entire applicable Commitment and Loans of the assigning Bank or (unless each of Borrower and the Agent otherwise consents) be in an aggregate amount not less than $5,000,000. Unless an Event of Default has occurred and is continuing, the consent of Borrower shall be required prior to an assignment becoming effective with respect to a Purchaser which is not a Bank or an Affiliate thereof. Such consent shall not be unreasonably withheld. The consent of the Agent and the LC Issuer shall be required prior to an assignment becoming effective. Notwithstanding the foregoing provisions of this Section 10.8(B), any Bank may at any time assign all or any portions of its Outstanding Credit Exposure and Note to a Federal Reserve Bank (but no such assignment shall release any Bank from any of its obligations hereunder). Upon delivery to the Agent and Borrower of (i) an assignment, together with any consent required by this Section 10.8, and (ii) payment of a $3,500 fee to the Agent for processing such assignment, such assignment shall become effective on the effective date specified in such assignment. On and after the effective date of such assignment, such Purchaser shall for all purposes be a Bank party to this Agreement and shall have all the rights and obligations of a Bank under this Agreement, to the same extent as if it were an original party hereto, and no further consent or action by Borrower, the Agent or any other Bank shall be required to release the transferor Bank with respect to the percentage of the Outstanding Credit Exposure and Commitments assigned to such Purchaser. Upon the consummation of any assignment to a Purchaser pursuant to this Section 10.8, the transferor Bank and Borrower shall make appropriate arrangements so that a replacement Note is issued to such transferor Bank and a new Note or, as appropriate, a replacement Note is issued to such Purchaser, in each case in principal amounts reflecting its Pro Rata Share of the Aggregate Commitment (or, to the extent the assignment relates to Facility A and occurs on or after the Commitment Termination Date, its share of the LC Obligations outstanding on the Commitment Termination Date). Borrower authorizes each Bank to disclose to any Participant or Purchaser or any other entity acquiring an interest in this Agreement or its Note by operation of law (each a "Transferee") and any prospective Transferee any and all information in such Bank's possession concerning the creditworthiness of Borrower and its Subsidiaries. This Agreement and all covenants, representations and warranties made herein and/or in any of the other Financing Documents shall survive the making of the Credit Extensions, the execution and delivery of the Financing Documents and shall continue in effect so long as any amounts payable under or in connection with any of the Financing Documents or any other Indebtedness of Borrower to the Banks remains unpaid or any Commitment remains outstanding; provided, however, that (i) such Lender’s obligations under this Agreement Section 10.6 shall survive and remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) the participating banks or other financial institutions shall not be a Lender hereunder for any purpose except, if the participation agreement so provides, for the purposes of Sections 3.5, 3.6, 11.11 in full force and 11.21 but only to the extent that the cost of such benefits to Borrower does not exceed the cost which Borrower would have incurred in respect effect after expiration of the Lender granting such participation absent the participation, (iv) Borrower, the Administrative Agent Commitments and the other Lenders shall continue to deal solely and directly with such Lender repayment in full of all amounts payable under or in connection with such Lender’s rights and obligations under this Agreement, (v) the participation interest shall be expressed as a percentage all of the granting Lender’s Pro Rata Share of the Revolving Facility as it then exists Financing Documents and shall not restrict an increase in the Revolving Facility (or the aggregate Commitments pertaining thereto), or in the granting Lender’s rights and obligations hereunder, so long as the amount of the participation interest is not affected thereby and (vi) the consent of the holder of such participation interest shall not be required for amendments or waivers of provisions of the Loan Documents other than those which (A) extend any Amortization Date, any applicable Maturity Date or any other date upon which any payment of money is due to the Lenders, (B) reduce the rate of interest on the Notes, any fee or any other monetary amount payable to the Lenders, (C) reduce the amount of any installment of principal due under the Notes, or (D) release any Guarantor from its Guarantysuch Indebtedness.
(f) Borrower agrees that upon the occurrence and during the continuance of any Event of Default, each Lender shall be entitled to assign its rights hereunder and under the Loan Documents, or grant participation interests in its rights under this Agreement and the Loan Documents, to any Person, in whole or in any part thereof, notwithstanding any provisions contained herein (including those set forth in subsection (b) above) or in any other Loan Document to the contrary, except that, other than (i) assignments by a Lender to an Affiliate of such Lender or to another Lender or (ii) pledges described in the last sentence of subsection (a) above, no assignment shall be made without the approval of the Administrative Agent.
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