New Banks. (a) A Bank (the “Existing Bank”) may, at any time, assign, transfer or novate any of its rights and/or obligations under this Agreement to a Qualifying Bank (the “New Bank”) without the prior consent of or notice to the Borrower: (i) save that the prior written consent of the Borrower (such consent not to be unreasonably withheld or delayed) is required for any such assignment, transfer or novation unless it is to another Existing Bank or Affiliate or an Event of Default has occurred and is continuing and such consent will be deemed to have been given if, within fourteen days of receipt by the Borrower of an application for consent, it has not been expressly refused; (ii) (subject to (i) above) without restriction, save that in the case of a partial assignment, transfer or novation of its rights and/or obligations under either Facility a minimum amount of US$5,000,000 (or its equivalent) in aggregate or, if as a result of such assignment, novation or transfer the Existing Bank’s rights and/or obligations under any Facility would in aggregate be less than US$10,000,000 (or its equivalent) such amount as represents all its rights, benefits and obligations hereunder (unless the relevant Agent agrees otherwise) must be assigned, transferred or novated; and (iii) no assignment, novation or transfer of all or any part of a Swingline Commitment or Revolving Facility Commitment shall be made by that Existing Bank unless simultaneously therewith a pro rata amount of the Revolving Facility Commitment or Swingline Commitment of that Existing Bank (or its Affiliated Bank) and a pro rata amount of each of that Existing Bank’s (or its Affiliated Bank’s) outstanding Swingline Advances or as the case may be, Revolving Facility Advances are also assigned, novated or transferred (where relevant) to the New Bank (or its Affiliated Bank), provided that no such pro rata assignment, novation or transfer of a Revolving Facility Commitment or outstanding Revolving Facility Advances shall be required to be made by a Revolving Facility Bank which is also a Swingline Bank if it assigns, novates or transfers a Swingline Commitment to its Affiliated Bank. Back to Contents (b) A transfer of obligations will be effective only if: (i) the obligations are transferred by way of novation in accordance with Clause 27.3 (Procedure for transfers); (ii) the New Bank confirms to the relevant Agent and the Borrower that it undertakes to be bound by the terms of this Agreement as a Bank in form and substance satisfactory to that Agent. On the transfer becoming effective in this manner the Existing Bank shall be relieved of its obligations under this Agreement to the extent that they are transferred to the New Bank; and (iii) upon performance of all “know your customer” or other checks relating to any person that the Facility Agent is required to carry out in relation to such assignment to a New Bank, the completion of which the Facility Agent shall promptly notify to the Existing Bank and the New Bank. (c) Nothing in this Agreement restricts the ability of a Bank to sub-contract an obligation if that Bank remains liable under this Agreement for that obligation. (d) On each occasion that an Existing Bank assigns, transfers or novates any of its rights and/or obligations under this Agreement (other than to an Affiliate), the New Bank shall, on the date the assignment, transfer and/or novation takes effect, pay to the relevant Agent for its own account a fee of US$1,500. (e) An Existing Bank is not responsible to a New Bank for: (i) the execution, genuineness, validity, enforceability or sufficiency of any Finance Document or any other document; (ii) the collectability of amounts payable under any Finance Document; or (iii) the accuracy of any statements (whether written or oral) made in or in connection with any Finance Document. (f) Each New Bank confirms to the Existing Bank and the other Finance Parties that it: (i) has made its own independent investigation and assessment of the financial condition and affairs of the Borrower and its related entities in connection with its participation in this Agreement and has not relied exclusively on any information provided to it by the Existing Bank in connection with any Finance Document; and (ii) will continue to make its own independent appraisal of the creditworthiness of the Borrower and its related entities while any amount is or may be outstanding under this Agreement or any Revolving Commitment or Swingline Commitment, where relevant, is in force. Back to Contents (g) Nothing in any Finance Document obliges an Existing Bank to: (i) accept a re-transfer from a New Bank of any of the rights and/or obligations assigned or transferred or novated under this Clause; or (ii) support any losses incurred by the New Bank by reason of the non performance by the Borrower of its obligations under this Agreement or otherwise. (h) Any reference in this Agreement to a Bank includes a New Bank but excludes a Bank if no amount is or may be owed to or by that Bank under this Agreement and its Revolving Commitment and Swingline Commitment have been cancelled or reduced to nil.
Appears in 1 contract
Samples: 364 Day Multi Currency Revolving Credit With Term Out Option (National Grid Transco PLC)
New Banks. (a) A a Bank (the “"Existing Bank”") may, at any time, assign, transfer or novate any of its rights and/or obligations under this Agreement to a Qualifying Bank another person (the “"New Bank”") without the prior consent of or notice to the Borrowerany Obligor except that:
(i) save that prior to completion of the Primary Syndication Period, the Existing Bank may only assign, transfer or novate (or seek to assign, transfer or novate) its rights and/or obligations in accordance with the syndication strategy agreed between the Arrangers and NGG;
(ii) the prior written consent of the Borrower NGG (such consent not to be unreasonably withheld or delayed) is required for any such assignment, transfer or novation unless it is with respect to another Existing Bank Facilities A or Affiliate or an Event of Default has occurred and is continuing C prior to the NXXX Acquisition Completion Date and such consent will be deemed to have been given if, within fourteen days of receipt by the Borrower NGG of an application for consent, it has not been expressly refused;; and
(iiiii) (subject to (i) above) without restriction, save that in the case of a partial assignment, transfer or novation of its rights and/or obligations under either any Facility a minimum amount of US$5,000,000 10,000,000 (or its equivalent) in aggregate or, if as and a result minimum of such assignment, novation or transfer the Existing Bank’s rights and/or obligations under any Facility would in aggregate be less than US$10,000,000 1,000,000 (or its equivalent) such amount as represents all its rights, benefits and obligations hereunder per Facility (unless to an Affiliate of a Bank or to another Bank or the relevant Agent agrees otherwise) must be assigned, transferred or novated; and
(iii) no assignment, novation or transfer of all or any part of a Swingline Commitment or Revolving Facility Commitment shall be made by that Existing Bank unless simultaneously therewith a pro rata amount of the Revolving Facility Commitment or Swingline Commitment of that Existing Bank (or its Affiliated Bank) and a pro rata amount of each of that Existing Bank’s (or its Affiliated Bank’s) outstanding Swingline Advances or as the case may be, Revolving Facility Advances are also assigned, novated or transferred (where relevant) to the New Bank (or its Affiliated Bank), provided that no such pro rata assignment, novation or transfer of a Revolving Facility Commitment or outstanding Revolving Facility Advances shall be required to be made by a Revolving Facility Bank which is also a Swingline Bank if it assigns, novates or transfers a Swingline Commitment to its Affiliated Bank. Back to Contents.
(b) A transfer of obligations will be effective only ifif either:
(i) the obligations are transferred by way of novation in accordance with Clause 27.3 29.3 (Procedure for transfers);; or
(ii) the New Bank confirms to the relevant Agent and the Borrower NGG that it undertakes to be bound by the terms of this Agreement as a Bank in form and substance satisfactory to that the Agent. On the transfer becoming effective in this manner the Existing Bank shall be relieved of its obligations under this Agreement to the extent that they are transferred to the New Bank; and
(iii) upon performance of all “know your customer” or other checks relating to any person that the Facility Agent is required to carry out in relation to such assignment to a New Bank, the completion of which the Facility Agent shall promptly notify to the Existing Bank and the New Bank.
(c) Nothing in this Agreement restricts the ability of a Bank to sub-contract an obligation if that Bank remains liable under this Agreement for that obligation.
(d) On each occasion that an Existing Bank assigns, transfers or novates any of its rights and/or obligations under this Agreement after completion of the Primary Syndication Period (other than to an Affiliate), the New Bank shall, on the date the assignment, transfer and/or novation takes effect, pay to the relevant Agent for its own account a fee of US$1,500(pound)1,000.
(e) An Existing Bank is not responsible to a New Bank for:
(i) the execution, genuineness, validity, enforceability or sufficiency of any Finance Document or any other document;
(ii) the collectability of amounts payable under any Finance Document; or
(iii) the accuracy of any statements (whether written or oral) made in or in connection with any Finance Document.
(f) Each New Bank confirms to the Existing Bank and the other Finance Parties that it:
(i) has made its own independent investigation and assessment of the financial condition and affairs of the Borrower each Obligor and its related entities in connection with its participation in this Agreement and has not relied exclusively on any information provided to it by the Existing Bank in connection with any Finance Document; and
(ii) will continue to make its own independent appraisal of the creditworthiness of the Borrower each Obligor and its related entities while any amount is or may be outstanding under this Agreement or any Revolving Commitment or Swingline Commitment, where relevant, is in force. Back to Contents.
(g) Nothing in any Finance Document obliges an Existing Bank to:
(i) accept a re-transfer from a New Bank of any of the rights and/or obligations assigned or transferred or novated under this Clause; or
(ii) support any losses incurred by the New Bank by reason of the non non-performance by the Borrower any Obligor of its obligations under this Agreement or otherwise.
(h) Any reference in this Agreement to a Bank includes a New Bank Bank. but excludes a Bank if no amount is or may be owed to or by that Bank under this Agreement and its Revolving Commitment and Swingline Commitment have has been cancelled or reduced to nil.
Appears in 1 contract
New Banks. Any financial institution approved by Borrower, the Agent and the Required Banks may join this Agreement as an additional Bank (such Person being herein referred to as the "New Bank") and be entitled to all the rights and interests and obligated to perform all of the obligations and duties of a Bank with respect to a specified additional amount of Revolving Credit Commitment hereunder, provided, that (a) A Bank (the “Existing Bank”) mayBorrower shall, at any timein its sole -------- ---- discretion, assign, transfer or novate any of have given its rights and/or obligations under this Agreement to a Qualifying Bank (the “New Bank”) without the prior consent of or notice to the Borrower:
(i) save that the prior written consent to the addition of the Borrower (such consent not to be unreasonably withheld or delayed) is required for any such assignment, transfer or novation unless it is to another Existing Bank or Affiliate or an Event of Default has occurred and is continuing and such consent will be deemed to have been given if, within fourteen days of receipt by the Borrower of an application for consent, it has not been expressly refused;
(ii) (subject to (i) above) without restriction, save that in the case of a partial assignment, transfer or novation of its rights and/or obligations under either Facility a minimum amount of US$5,000,000 (or its equivalent) in aggregate or, if as a result of such assignment, novation or transfer the Existing Bank’s rights and/or obligations under any Facility would in aggregate be less than US$10,000,000 (or its equivalent) such amount as represents all its rights, benefits and obligations hereunder (unless the relevant Agent agrees otherwise) must be assigned, transferred or novated; and
(iii) no assignment, novation or transfer of all or any part of a Swingline Commitment or Revolving Facility Commitment shall be made by that Existing Bank unless simultaneously therewith a pro rata amount of the Revolving Facility Commitment or Swingline Commitment of that Existing Bank (or its Affiliated Bank) and a pro rata amount of each of that Existing Bank’s (or its Affiliated Bank’s) outstanding Swingline Advances or as the case may be, Revolving Facility Advances are also assigned, novated or transferred (where relevant) to the New Bank (or its Affiliated Bank)as a party to this Agreement, provided that no such pro rata assignment, novation or transfer of a Revolving Facility Commitment or outstanding Revolving Facility Advances shall be required to be made by a Revolving Facility Bank which is also a Swingline Bank if it assigns, novates or transfers a Swingline Commitment to its Affiliated Bank. Back to Contents
(b) A transfer the Agent, the Swing Line Lender and the Required Banks shall have given their prior written consent (which consent shall not be unreasonably withheld), (c) such New Bank and Borrower shall have executed and delivered an instrument of obligations will adherence (the "Instrument of Adherence") in form and substance satisfactory to Borrower and the Agent pursuant to which such New Bank shall agree to be effective only ifbound as a Bank by the terms and conditions hereof and the other Loan Documents, and to make Revolving Credit Loans and a Term Loan to Borrower in accordance with this Agreement, and which Instrument of Adherence shall specify the maximum amount of additional Revolving Credit Loans that such New Bank shall agree to be bound as a Bank by the terms and conditions hereof and the other Loan Documents, and to make Revolving Credit Loans and a Term Loan to Borrower in accordance with this Agreement, and which Instrument of Adherence shall specify the maximum amount of additional Revolving Credit Loans that such New Bank agrees to provide hereunder (the "Additional Commitment Amount") and the New Bank's address for notices, (d) the Additional Commitment Amount provided by any New Bank must be at least $5,000,000, (e) such New Bank shall have received such opinions of counsel to Borrower, such evidence of proper corporate organization, existence, authority and appropriate corporate proceedings with respect to Borrower, and such other certificates, instruments, and documents, as it shall have requested in connection with such Instrument of Adherence, (f) such New Bank shall have paid to the Agent an administrative fee in the sum of $3,500 for the account of the Agent, and (g) such New Bank shall have confirmed to and agreed with the Agent, the Documentation Agent, the Swing Line Lender and the Banks and Borrower as follows:
(i) the obligations are transferred by way Agent, the Documentation Agent, the Swing Line Lender and the Banks have made no representation or warranty and shall have no responsibility with respect to any statements, warranties or representations made in or in - 110 - connection with this Agreement or the other Loan Documents or the execution, legality, validity, enforceability, genuineness, sufficiency, collectibility or value of novation in accordance with Clause 27.3 (Procedure for transfers)this Agreement, the other Loan Documents, and Collateral, or any other Instrument or document furnished pursuant hereto;
(ii) the Agent, the Documentation Agent, the Swing Line Lender and the Banks have made no representation or warranty and shall have no responsibility with respect to the financial condition of Borrower and its Subsidiaries or any other Person primarily or secondarily liable in respect of any of their obligations under this Agreement or any of the other Loan Documents, or the performance or observance by Borrower and its Subsidiaries or any other Person primarily or secondarily liable in respect of their obligations under this Agreement or any of the other Loan Documents or any other instrument or document furnished pursuant hereto or thereto;
(iii) such New Bank confirms that it has received a copy of this Agreement and the other Loan Documents, together with copies of the most recent financial statements referred to in Sections 4.18 and 6.1 hereof and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Instrument of Adherence;
(iv) such New Bank will, independently and without reliance upon the relevant other Banks, the Swing Line Lender, the Documentation Agent, or the Agent and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement;
(v) such New Bank appoints and authorizes the Agent and the Borrower Documentation Agent to take such action as Agent and Documentation Agent, respectively, on its behalf and to exercise such powers under this Agreement and the other Loan Documents as are delegated to the Agent and the Documentation Agent by the terms hereof or thereof, together with such powers as are reasonably incidental thereto;
(vi) such New Bank agrees that it undertakes to be bound will perform in accordance with their terms all of the obligations that by the terms of this Agreement are required to be performed by it as a Bank in form and substance satisfactory to that Agent. On the transfer becoming effective in this manner the Existing Bank shall be relieved of its obligations under this Agreement to the extent that they are transferred to the New Bank; and
(iiivii) upon performance such New Bank represents and warrants that it is legally authorized to enter into such Instrument of all “know your customer” or other checks relating to Adherence. Upon any person that New Bank's execution of an Instrument of Adherence and Borrower's, the Facility Agent's, the Swing Line Lender's and the Required Banks' consent thereto, the Percentage of each Bank and the Aggregate Revolving Credit Commitment shall be adjusted appropriately. Promptly thereafter, Borrower shall notify each of the Banks, the Agent is required to carry out in relation to and the Documentation Agent of the joinder hereunder of such assignment to a New Bank, the completion resulting increase in the Aggregate Revolving Credit Commitment and each Bank's new Percentage and provide each of which the Facility Agent shall promptly notify to the Existing Bank Banks and the New Bank.
(c) Nothing in this Agreement restricts Agent with a copy of the ability executed Instrument of Adherence and a Bank to sub-contract an obligation if that Bank remains liable under this Agreement for that obligation.
(d) On each occasion that an Existing Bank assigns, transfers or novates copy of Exhibit A reflecting the necessary adjustments. --------- Upon the effective date of any Instrument of its rights and/or obligations under this Agreement (other than to an Affiliate)Adherence, the New Bank shall, on the date the assignment, transfer and/or novation takes effect, pay shall make all (if any) such payments to the relevant Agent for its own account a fee of US$1,500.
(e) An Existing Bank is not responsible other Banks as may be necessary to a result in the Revolving Credit Loans made by such New Bank for:
being equal to such New Bank's Percentage (ias then in effect) of the execution, genuineness, validity, enforceability or sufficiency aggregate principal amount of all Revolving Credit Loans outstanding to Borrower as of such date. Borrower hereby agrees that any Finance Document or any other document;
(ii) the collectability of amounts payable under any Finance Document; or
(iii) the accuracy of any statements (whether written or oral) made in or in connection with any Finance Document.
(f) Each New Bank confirms so paying any such amount to the Existing other Banks pursuant to this Section 12.2 shall be entitled to all the rights of a Bank hereunder and such payments to the other Finance Parties that it:
(i) has made its own independent investigation and assessment of the financial condition and affairs of the Borrower and its related entities in connection with its participation in this Agreement and has not relied exclusively on any information provided to it Banks shall constitute Revolving Credit Loans held by the Existing Bank in connection with any Finance Document; and
(ii) will continue to make its own independent appraisal of the creditworthiness of the Borrower and its related entities while any amount is or may be outstanding under this Agreement or any Revolving Commitment or Swingline Commitment, where relevant, is in force. Back to Contents
(g) Nothing in any Finance Document obliges an Existing Bank to:
(i) accept a re-transfer from a such New Bank of any of the rights and/or obligations assigned or transferred or novated under this Clause; or
(ii) support any losses incurred by the hereunder and that such New Bank may, to the fullest extent permitted by reason of the non performance by the Borrower law, exercise all of its obligations under this Agreement or otherwise.
right of payment (hincluding the right of set- off) Any reference in this Agreement with respect to a Bank includes a such amounts as fully as if such New Bank but excludes a Bank if no had initially advanced Borrower the amount is or may be owed to or by that Bank under this Agreement and its Revolving Commitment and Swingline Commitment have been cancelled or reduced to nil.of such payments. THIS AGREEMENT CONTAINS A WAIVER OF TRIAL BY JURY. SEE SECTION 10.7 HEREOF. [BALANCE OF THIS PAGE INTENTIONALLY LEFT BLANK]
Appears in 1 contract
New Banks. Any financial institution approved by the Borrowers, the Agent and the Required Banks may join this Agreement as an additional Bank (such Person being herein referred to as the "New Bank") and be entitled to all the rights and -------- interests and obligated to perform all of the obligations and duties of a Bank with respect to a specified additional amount of Revolving Credit Commitment hereunder, provided, that (a) A Bank (the “Existing Bank”) mayBorrowers shall, at any timein its sole discretion, assign, transfer or novate any of its rights and/or obligations under this Agreement to a Qualifying Bank (the “New Bank”) without the prior consent of or notice to the Borrower:
(i) save that the have -------- ---- given their prior written consent to the addition of the Borrower New Bank as a party to this Agreement, (such b) the Agent, the Swing Line Lender and the Required Banks shall have given their prior written consent (which consent shall not to be unreasonably withheld withheld; provided, that, if the joinder of such New Bank would -------- ---- result in an increase to the Aggregate Revolving Credit Commitment or delayed) is required for any the Term Loan Commitment; such assignment, transfer or novation unless it is to another Existing joinder shall require the consent of each Bank or Affiliate or an Event of Default has occurred and is continuing and such consent will shall be deemed to have been given if, within fourteen days of receipt by the Borrower of an application for consent, it has not been expressly refused;
(ii) (subject to (i) above) without restriction, save that in the case of a partial assignment, transfer or novation of its rights and/or obligations under either Facility a minimum amount of US$5,000,000 (or its equivalent) in aggregate or, if as a result of such assignment, novation or transfer the Existing Bank’s rights and/or obligations under any Facility would in aggregate be less than US$10,000,000 (or its equivalent) such amount as represents all its rights, benefits sole and obligations hereunder (unless the relevant Agent agrees otherwise) must be assigned, transferred or novated; and
(iii) no assignment, novation or transfer of all or any part of a Swingline Commitment or Revolving Facility Commitment shall be made by that Existing Bank unless simultaneously therewith a pro rata amount of the Revolving Facility Commitment or Swingline Commitment of that Existing Bank (or its Affiliated Bank) and a pro rata amount absolute discretion of each of that Existing Bank’s (or its Affiliated Bank’s) outstanding Swingline Advances or as the case may be, Revolving Facility Advances are also assigned, novated or transferred (where relevant) to the New Bank (or its Affiliated Bank), provided that no (c) such pro rata assignment, novation or transfer New Bank and the Borrowers shall have executed and delivered an instrument of a Revolving Facility Commitment or outstanding Revolving Facility Advances adherence (the "Instrument of ------------- Adherence") in form and substance satisfactory to the Borrowers and the Agent --------- pursuant to which such New Bank shall be required agree to be made bound as a Bank by the terms and conditions hereof and the other Loan Documents, and to make Revolving Credit Loans and a Term Loan to the Borrowers in accordance with this Agreement, and which Instrument of Adherence shall specify the maximum amount of additional Revolving Facility Credit Loans that such New Bank which is also a Swingline agrees to provide hereunder (the "Additional Commitment Amount") and the New Bank's address for notices, (d) the ---------------------------- Additional Commitment Amount provided by any New Bank if must be at least $5,000,000, (e) such New Bank shall have received such opinions of counsel to the Borrowers, such evidence of proper corporate organization, existence, authority and appropriate corporate proceedings with respect to the Borrowers, and such other certificates, instruments, and documents, as it assignsshall have requested in connection with such Instrument of Adherence, novates or transfers a Swingline Commitment (f) such New Bank shall have paid to its Affiliated Bank. Back the Agent an administrative fee in the sum of $3,500 for the account of the Agent, and (g) such New Bank shall have confirmed to Contents
(b) A transfer of obligations will be effective only ifand agreed with the Agent, the Swing Line Lender and the Banks and the Borrowers as follows:
(i) the obligations are transferred by way Agent, the Swing Line Lender and the Banks have made no representation or warranty and shall have no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or the other Loan Documents or the execution, legality, validity, enforceability, genuineness, sufficiency, collectibility or value of novation in accordance with Clause 27.3 (Procedure for transfers)this Agreement, the other Loan Documents, and Collateral, or any other Instrument or document furnished pursuant hereto;
(ii) the Agent, the Swing Line Lender and the Banks have made no representation or warranty and shall have no responsibility with respect to the financial condition of either Borrower and its Subsidiaries or any other Person primarily or secondarily liable in respect of any of their obligations under this Agreement or any of the other Loan Documents, or the performance or observance by either Borrower and its Subsidiaries or any other Person primarily or secondarily liable in respect of their obligations under this Agreement or any of the other Loan Documents or any other instrument or document furnished pursuant hereto or thereto;
(iii) such New Bank confirms that it has received a copy of this Agreement and the other Loan Documents, together with copies of the most recent financial statements referred to in Sections 4.18 and 6.1 hereof and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Instrument of Adherence;
(iv) such New Bank will, independently and without reliance upon the other Banks, the Swing Line Lender, or the Agent and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement;
(v) such New Bank appoints and authorizes the Agent to take such action as Agent on its behalf and to exercise such powers under this Agreement and the other Loan Documents as are delegated to the relevant Agent and by the Borrower terms hereof or thereof, together with such powers as are reasonably incidental thereto;
(vi) such New Bank agrees that it undertakes to be bound will perform in accordance with their terms all of the obligations that by the terms of this Agreement are required to be performed by it as a Bank in form and substance satisfactory to that Agent. On the transfer becoming effective in this manner the Existing Bank shall be relieved of its obligations under this Agreement to the extent that they are transferred to the New Bank; and
(iiivii) upon performance such New Bank represents and warrants that it is legally authorized to enter into such Instrument of all “know your customer” or other checks relating to Adherence. Upon any person that New Bank's execution of an Instrument of Adherence and the Facility Borrowers', the Agent's, the Swing Line Lender's and the Required Banks' consent thereto, the Percentage of each Bank and the Aggregate Revolving Credit Commitment shall be adjusted appropriately. Promptly thereafter, the Borrowers shall notify each of the Banks and the Agent is required to carry out in relation to of the joinder hereunder of such assignment to a New Bank, the completion resulting increase in the Aggregate Revolving Credit Commitment and each Bank's new Percentage and provide each of which the Facility Agent shall promptly notify to the Existing Bank Banks and the New Bank.
(c) Nothing in this Agreement restricts Agent with a copy of the ability executed Instrument of Adherence and a Bank to sub-contract an obligation if that Bank remains liable under this Agreement for that obligation.
(d) On each occasion that an Existing Bank assigns, transfers or novates copy of Exhibit A --------- reflecting the necessary adjustments. Upon the effective date of any Instrument of its rights and/or obligations under this Agreement (other than to an Affiliate)Adherence, the New Bank shall, on the date the assignment, transfer and/or novation takes effect, pay shall make all (if any) such payments to the relevant Agent for its own account a fee of US$1,500.
(e) An Existing Bank is not responsible other Banks as may be necessary to a result in the Revolving Credit Loans made by such New Bank for:
being equal to such New Bank's Percentage (ias then in effect) of the execution, genuineness, validity, enforceability or sufficiency aggregate principal amount of all Revolving Credit Loans outstanding to the Borrowers as of such date. The Borrowers hereby agree that any Finance Document or any other document;
(ii) the collectability of amounts payable under any Finance Document; or
(iii) the accuracy of any statements (whether written or oral) made in or in connection with any Finance Document.
(f) Each New Bank confirms so paying any such amount to the Existing other Banks pursuant to this Section 12.2 shall be entitled to all the rights of a Bank hereunder and such payments to the other Finance Parties that it:
(i) has made its own independent investigation and assessment of the financial condition and affairs of the Borrower and its related entities in connection with its participation in this Agreement and has not relied exclusively on any information provided to it Banks shall constitute Revolving Credit Loans held by the Existing Bank in connection with any Finance Document; and
(ii) will continue to make its own independent appraisal of the creditworthiness of the Borrower and its related entities while any amount is or may be outstanding under this Agreement or any Revolving Commitment or Swingline Commitment, where relevant, is in force. Back to Contents
(g) Nothing in any Finance Document obliges an Existing Bank to:
(i) accept a re-transfer from a such New Bank of any of the rights and/or obligations assigned or transferred or novated under this Clause; or
(ii) support any losses incurred by the hereunder and that such New Bank may, to the fullest extent permitted by reason of the non performance by the Borrower law, exercise all of its obligations under this Agreement or otherwise.
right of payment (hincluding the right of set-off) Any reference in this Agreement with respect to a Bank includes a such amounts as fully as if such New Bank but excludes a Bank if no had initially advanced the Borrowers the amount is or may be owed to or by that Bank under this Agreement and its Revolving Commitment and Swingline Commitment have been cancelled or reduced to nilof such payments.
Appears in 1 contract
New Banks. Any financial institution approved by the Borrowers, the Agent and the Required Banks may join this Agreement as an additional Bank (such Person being herein referred to as the "New Bank") and be entitled to all the rights and interests and obligated to perform all of the obligations and duties of a Bank with respect to a specified additional amount of Revolving Credit Commitment hereunder, provided, that (a) A Bank (the “Existing Bank”) mayBorrowers shall, at any timein its sole discretion, assign, transfer or novate any of its rights and/or obligations under this Agreement to a Qualifying Bank (the “New Bank”) without the prior consent of or notice to the Borrower:
(i) save that the have given their prior written consent to the addition of the Borrower New Bank as a party to this Agreement, (such b) the Agent, the Swing Line Lender and the Required Banks shall have given their prior written consent (which consent shall not to be unreasonably withheld withheld; provided, that, if the joinder of such New Bank would result in an increase to the Aggregate Revolving Credit Commitment, other than as permitted by Section 2.1(d) hereof, or delayed) is required for any the Term Loan Commitment; such assignment, transfer or novation unless it is to another Existing joinder shall require the consent of each Bank or Affiliate or an Event of Default has occurred and is continuing and such consent will shall be deemed to have been given if, within fourteen days of receipt by the Borrower of an application for consent, it has not been expressly refused;
(ii) (subject to (i) above) without restriction, save that in the case of a partial assignment, transfer or novation of its rights and/or obligations under either Facility a minimum amount of US$5,000,000 (or its equivalent) in aggregate or, if as a result of such assignment, novation or transfer the Existing Bank’s rights and/or obligations under any Facility would in aggregate be less than US$10,000,000 (or its equivalent) such amount as represents all its rights, benefits sole and obligations hereunder (unless the relevant Agent agrees otherwise) must be assigned, transferred or novated; and
(iii) no assignment, novation or transfer of all or any part of a Swingline Commitment or Revolving Facility Commitment shall be made by that Existing Bank unless simultaneously therewith a pro rata amount of the Revolving Facility Commitment or Swingline Commitment of that Existing Bank (or its Affiliated Bank) and a pro rata amount absolute discretion of each of that Existing Bank’s (or its Affiliated Bank’s) outstanding Swingline Advances or as the case may be, Revolving Facility Advances are also assigned, novated or transferred (where relevant) to the New Bank (or its Affiliated Bank), provided that no (c) such pro rata assignment, novation or transfer New Bank and the Borrowers shall have executed and delivered an instrument of a Revolving Facility Commitment or outstanding Revolving Facility Advances adherence (the "Instrument of Adherence") in form and substance satisfactory to the Borrowers and the Agent pursuant to which such New Bank shall be required agree to be made bound as a Bank by the terms and conditions hereof and the other Loan Documents, and to make Revolving Credit Loans and a Term Loan to the Borrowers in accordance with this Agreement, and which Instrument of Adherence shall specify the maximum amount of additional Revolving Facility Credit Loans that such New Bank which is also a Swingline agrees to provide hereunder (the "Additional Commitment Amount") and the New Bank's address for notices, (d) the Additional Commitment Amount provided by any New Bank if must be at least $5,000,000, (e) such New Bank shall have received such opinions of counsel to the Borrowers, such evidence of proper corporate organization, existence, authority and appropriate corporate proceedings with respect to the Borrowers, and such other certificates, instruments, and documents, as it assignsshall have requested in connection with such Instrument of Adherence, novates or transfers a Swingline Commitment (f) such New Bank shall have paid to its Affiliated Bank. Back the Agent an administrative fee in the sum of $3,500 for the account of the Agent, and (g) such New Bank shall have confirmed to Contents
(b) A transfer of obligations will be effective only ifand agreed with the Agent, the Swing Line Lender and the Banks and the Borrowers as follows:
(i) the obligations are transferred by way Agent, the Swing Line Lender and the Banks have made no representation or warranty and shall have no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or the other Loan Documents or the execution, legality, validity, enforceability, genuineness, sufficiency, collectability or value of novation in accordance with Clause 27.3 (Procedure for transfers)this Agreement, the other Loan Documents, and Collateral, or any other Instrument or document furnished pursuant hereto;
(ii) the Agent, the Swing Line Lender and the Banks have made no representation or warranty and shall have no responsibility with respect to the financial condition of either Borrower and its Subsidiaries or any other Person primarily or secondarily liable in respect of any of their obligations under this Agreement or any of the other Loan Documents, or the performance or observance by either Borrower and its Subsidiaries or any other Person primarily or secondarily liable in respect of their obligations under this Agreement or any of the other Loan Documents or any other instrument or document furnished pursuant hereto or thereto;
(iii) such New Bank confirms that it has received a copy of this Agreement and the other Loan Documents, together with copies of the most recent financial statements referred to in Sections 4.18 and 6.1 hereof and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Instrument of Adherence;
(iv) such New Bank will, independently and without reliance upon the other Banks, the Swing Line Lender, or the Agent and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement;
(v) such New Bank appoints and authorizes the Agent to take such action as Agent on its behalf and to exercise such powers under this Agreement and the other Loan Documents as are delegated to the relevant Agent and by the Borrower terms hereof or thereof, together with such powers as are reasonably incidental thereto;
(vi) such New Bank agrees that it undertakes to be bound will perform in accordance with their terms all of the obligations that by the terms of this Agreement are required to be performed by it as a Bank in form and substance satisfactory to that Agent. On the transfer becoming effective in this manner the Existing Bank shall be relieved of its obligations under this Agreement to the extent that they are transferred to the New Bank; and
(iiivii) upon performance such New Bank represents and warrants that it is legally authorized to enter into such Instrument of all “know your customer” or other checks relating to Adherence. Upon any person that New Bank's execution of an Instrument of Adherence and the Facility Borrowers', the Agent's, the Swing Line Lender's and the Required Banks' consent thereto, the Percentage of each Bank and the Aggregate Revolving Credit Commitment shall be adjusted appropriately. Promptly thereafter, the Borrowers shall notify each of the Banks and the Agent is required to carry out in relation to of the joinder hereunder of such assignment to a New Bank, the completion resulting increase in the Aggregate Revolving Credit Commitment and each Bank's new Percentage and provide each of which the Facility Agent shall promptly notify to the Existing Bank Banks and the New Bank.
(c) Nothing in this Agreement restricts Agent with a copy of the ability executed Instrument of Adherence and a Bank to sub-contract an obligation if that Bank remains liable under this Agreement for that obligation.
(d) On each occasion that an Existing Bank assigns, transfers or novates copy of Exhibit A reflecting the necessary adjustments. Upon the effective date of any Instrument of its rights and/or obligations under this Agreement (other than to an Affiliate)Adherence, the New Bank shall, on the date the assignment, transfer and/or novation takes effect, pay shall make all (if any) such payments to the relevant Agent for its own account a fee of US$1,500.
(e) An Existing Bank is not responsible other Banks as may be necessary to a result in the Revolving Credit Loans made by such New Bank for:
being equal to such New Bank's Percentage (ias then in effect) of the execution, genuineness, validity, enforceability or sufficiency aggregate principal amount of all Revolving Credit Loans outstanding to the Borrowers as of such date. The Borrowers hereby agree that any Finance Document or any other document;
(ii) the collectability of amounts payable under any Finance Document; or
(iii) the accuracy of any statements (whether written or oral) made in or in connection with any Finance Document.
(f) Each New Bank confirms so paying any such amount to the Existing other Banks pursuant to this Section 12.2 shall be entitled to all the rights of a Bank hereunder and such payments to the other Finance Parties that it:
(i) has made its own independent investigation and assessment of the financial condition and affairs of the Borrower and its related entities in connection with its participation in this Agreement and has not relied exclusively on any information provided to it Banks shall constitute Revolving Credit Loans held by the Existing Bank in connection with any Finance Document; and
(ii) will continue to make its own independent appraisal of the creditworthiness of the Borrower and its related entities while any amount is or may be outstanding under this Agreement or any Revolving Commitment or Swingline Commitment, where relevant, is in force. Back to Contents
(g) Nothing in any Finance Document obliges an Existing Bank to:
(i) accept a re-transfer from a such New Bank of any of the rights and/or obligations assigned or transferred or novated under this Clause; or
(ii) support any losses incurred by the hereunder and that such New Bank may, to the fullest extent permitted by reason of the non performance by the Borrower law, exercise all of its obligations under this Agreement or otherwise.
right of payment (hincluding the right of set-off) Any reference in this Agreement with respect to a Bank includes a such amounts as fully as if such New Bank but excludes a Bank if no had initially advanced the Borrowers the amount is or may be owed to or by that Bank under this Agreement and its Revolving Commitment and Swingline Commitment have been cancelled or reduced to nilof such payments.
Appears in 1 contract
New Banks. Any financial institution approved by the Borrower, the Agent and the Required Banks may join this Agreement as an additional Bank (such Person being herein referred to as the "New Bank") and be entitled to all the rights and interests and obligated to perform all of the obligations and duties of a Bank with respect to a specified additional amount of Revolving Credit Commitment hereunder, provided, that (a) A the Borrower shall, in its sole discretion, have -------- ---- given its prior written consent to the addition of the New Bank as a party to this Agreement, (b) the Agent, the Swing Line Lender and the Required Banks shall have given their prior written consent (which consent shall not be unreasonably withheld; provided, that, if the joinder of such New Bank would -------- ---- result in an increase to the Aggregate Revolving Credit Commitment or the Term Loan Commitment; such joinder shall require the consent of each Bank and such consent shall be in the sole and absolute discretion of each Bank), (c) such New Bank and the Borrower shall have executed and delivered an instrument of adherence (the “Existing Bank”"Instrument of Adherence") mayin form and substance satisfactory to the Borrower and the Agent pursuant to which such New Bank shall agree to be bound as a Bank by the terms and conditions hereof and the other Loan Documents, at any timeand to make Revolving Credit Loans and a Term Loan to the Borrower in accordance with this Agreement, assignand which Instrument of Adherence shall specify the maximum amount of additional Revolving Credit Loans that such New Bank shall agree to be bound as a Bank by the terms and conditions hereof and the other Loan Documents, transfer or novate any and to make Revolving Credit Loans and a Term Loan to the Borrower in accordance with this Agreement, and which Instrument of its rights and/or obligations under this Agreement Adherence shall specify the maximum amount of additional Revolving Credit Loans that such New Bank agrees to a Qualifying Bank provide hereunder (the “"Additional Commitment Amount") and the New Bank”'s address for notices, (d) without the prior consent Additional Commitment Amount provided by any New Bank must be at least $5,000,000, (e) such New Bank shall have received such opinions of or notice counsel to the Borrower:
, such evidence of proper corporate organization, existence, authority and appropriate corporate proceedings with respect to the Borrower, and such other certificates, instruments, and documents, as it shall have requested in connection with such Instrument of Adherence, (if) save that such New Bank shall have paid to the prior written consent Agent an administrative fee in the sum of $3,500 for the account of the Borrower Agent, and (g) such consent not New Bank shall have confirmed to be unreasonably withheld or delayed) is required for any such assignmentand agreed with the Agent, transfer or novation unless it is to another Existing Bank or Affiliate or an Event of Default has occurred the Swing Line Lender and is continuing the Banks and such consent will be deemed to have been given if, within fourteen days of receipt by the Borrower of an application for consent, it has not been expressly refused;
(ii) (subject to (i) above) without restriction, save that in the case of a partial assignment, transfer or novation of its rights and/or obligations under either Facility a minimum amount of US$5,000,000 (or its equivalent) in aggregate or, if as a result of such assignment, novation or transfer the Existing Bank’s rights and/or obligations under any Facility would in aggregate be less than US$10,000,000 (or its equivalent) such amount as represents all its rights, benefits and obligations hereunder (unless the relevant Agent agrees otherwise) must be assigned, transferred or novated; and
(iii) no assignment, novation or transfer of all or any part of a Swingline Commitment or Revolving Facility Commitment shall be made by that Existing Bank unless simultaneously therewith a pro rata amount of the Revolving Facility Commitment or Swingline Commitment of that Existing Bank (or its Affiliated Bank) and a pro rata amount of each of that Existing Bank’s (or its Affiliated Bank’s) outstanding Swingline Advances or as the case may be, Revolving Facility Advances are also assigned, novated or transferred (where relevant) to the New Bank (or its Affiliated Bank), provided that no such pro rata assignment, novation or transfer of a Revolving Facility Commitment or outstanding Revolving Facility Advances shall be required to be made by a Revolving Facility Bank which is also a Swingline Bank if it assigns, novates or transfers a Swingline Commitment to its Affiliated Bank. Back to Contents
(b) A transfer of obligations will be effective only iffollows:
(i) the obligations are transferred by way Agent, the Swing Line Lender and the Banks have made no representation or warranty and shall have no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or the other Loan Documents or the execution, legality, validity, enforceability, genuineness, sufficiency, collectibility or value of novation in accordance with Clause 27.3 (Procedure for transfers)this Agreement, the other Loan Documents, and Collateral, or any other Instrument or document furnished pursuant hereto;
(ii) the Agent, the Swing Line Lender and the Banks have made no representation or warranty and shall have no responsibility with respect to the financial condition of any Credit Party and its Subsidiaries or any other Person primarily or secondarily liable in respect of any of their obligations under this Agreement or any of the other Loan Documents, or the performance or observance by any Credit Party and its Subsidiaries or any other Person primarily or secondarily liable in respect of their obligations under this Agreement or any of the other Loan Documents or any other instrument or document furnished pursuant hereto or thereto;
(iii) such New Bank confirms that it has received a copy of this Agreement and the other Loan Documents, together with copies of the most recent financial statements referred to in Sections 4.18 and 6.1 hereof and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Instrument of Adherence;
(iv) such New Bank will, independently and without reliance upon the other Banks, the Swing Line Lender, or the Agent and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement;
(v) such New Bank appoints and authorizes the Agent to take such action as Agent on its behalf and to exercise such powers under this Agreement and the other Loan Documents as are delegated to the relevant Agent and by the Borrower terms hereof or thereof, together with such powers as are reasonably incidental thereto;
(vi) such New Bank agrees that it undertakes to be bound will perform in accordance with their terms all of the obligations that by the terms of this Agreement are required to be performed by it as a Bank in form and substance satisfactory to that Agent. On the transfer becoming effective in this manner the Existing Bank shall be relieved of its obligations under this Agreement to the extent that they are transferred to the New Bank; and
(iiivii) upon performance such New Bank represents and warrants that it is legally authorized to enter into such Instrument of all “know your customer” or other checks relating to Adherence. Upon any person that New Bank's execution of an Instrument of Adherence and the Facility Agent is required to carry out in relation to Borrower's, the Agent's, the Swing Line Lender's and the Required Banks' consent thereto, the Percentage of each Bank and the Aggregate Revolving Credit Commitment shall be adjusted appropriately. Promptly thereafter, the Borrower shall notify each of the Banks and the of the joinder hereunder of such assignment to a New Bank, the completion resulting increase in the Aggregate Revolving Credit Commitment and each Bank's new Percentage and provide each of which the Facility Agent shall promptly notify to the Existing Bank Banks and the New Bank.
(c) Nothing in this Agreement restricts Agent with a copy of the ability executed Instrument of Adherence and a Bank to sub-contract an obligation if that Bank remains liable under this Agreement for that obligation.
(d) On each occasion that an Existing Bank assigns, transfers or novates copy of Exhibit A reflecting the necessary adjustments. --------- Upon the effective date of any Instrument of its rights and/or obligations under this Agreement (other than to an Affiliate)Adherence, the New Bank shall, on the date the assignment, transfer and/or novation takes effect, pay shall make all (if any) such payments to the relevant Agent for its own account a fee of US$1,500.
(e) An Existing Bank is not responsible other Banks as may be necessary to a result in the Revolving Credit Loans made by such New Bank for:
being equal to such New Bank's Percentage (ias then in effect) of the execution, genuineness, validity, enforceability or sufficiency aggregate principal amount of all Revolving Credit Loans outstanding to the Borrower as of such date. The Borrower hereby agrees that any Finance Document or any other document;
(ii) the collectability of amounts payable under any Finance Document; or
(iii) the accuracy of any statements (whether written or oral) made in or in connection with any Finance Document.
(f) Each New Bank confirms so paying any such amount to the Existing other Banks pursuant to this Section 12.2 shall be entitled to all the rights of a Bank hereunder and such payments to the other Finance Parties Banks shall constitute Revolving Credit Loans held by such New Bank hereunder and that it:
such New Bank may, to the fullest extent permitted by law, exercise all of its right of payment (iincluding the right of set-off) has made its own independent investigation and assessment of the financial condition and affairs of with respect to such amounts as fully as if such New Bank had initially advanced the Borrower and its related entities in connection with its participation in this Agreement and has not relied exclusively on any information provided to it by the Existing Bank in connection with any Finance Document; and
(ii) will continue to make its own independent appraisal amount of the creditworthiness of the Borrower and its related entities while any amount is or may be outstanding under this Agreement or any Revolving Commitment or Swingline Commitment, where relevant, is in force. Back to Contents
(g) Nothing in any Finance Document obliges an Existing Bank to:
(i) accept a re-transfer from a New Bank of any of the rights and/or obligations assigned or transferred or novated under this Clause; or
(ii) support any losses incurred by the New Bank by reason of the non performance by the Borrower of its obligations under this Agreement or otherwisesuch payments.
(h) Any reference in this Agreement to a Bank includes a New Bank but excludes a Bank if no amount is or may be owed to or by that Bank under this Agreement and its Revolving Commitment and Swingline Commitment have been cancelled or reduced to nil.
Appears in 1 contract
