Replacement of Non-Consenting Lenders. If, in connection with any proposed amendment, waiver or consent hereunder pursuant to Section 15.2 (i) requiring the consent of all Lenders, the consent of Required Lenders is obtained but the consent of all Lenders whose consent is required is not obtained or (ii) requiring the consent of Required Lenders, the consent of Lenders holding fifty-one percent (51%) or more of the applicable threshold, is obtained but the consent of Required Lenders is not obtained (any Lender withholding consent as described in clause (i) and (ii) hereof being referred to as a “Non-Consenting Lender”), then, so long as the Agent is not a Non-Consenting Lender, the Agent may, at the sole expense of the Borrowers, upon notice to such Non-Consenting Lender and the Borrowers, require such Non-Consenting Lender to assign and delegate, without recourse (in accordance with the restrictions contained in Section 15.5(b)), all of its interests, rights and obligations under this Agreement to an Eligible Assignee that shall assume such obligations (which assignee may be another Lender, if a Lender accepts such assignment); provided, however, that such Lender shall have received payment of an amount equal to the outstanding principal of its Advances, accrued interest thereon, accrued fees and all other amounts payable to it hereunder, from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Borrowers (in the case of all other amounts).
Appears in 2 contracts
Samples: Credit and Security Agreement (Stoneridge Inc), Credit and Security Agreement (Stoneridge Inc)
Replacement of Non-Consenting Lenders. IfOn the Amendment No. 2 Effective Date, concurrently with the effectiveness of this Amendment No. 2, the Borrower shall be deemed to have exercised its rights under Section 13.7(b) of the Credit Agreement to require each Term B Lender and Term C Lender that is a Non-Consenting Lender in respect of this Amendment No. 2 to assign its Existing Term B Loans and/or Existing Term C Loans, as applicable, that are listed on Schedule 1 to this Amendment No. 2 to Citibank, N.A. (the “Replacement Lender”). By its execution of this Amendment No. 2, the Administrative Agent agrees to accept such assignments and the Replacement Xxxxxx agrees to accept such assignments, and approves this Amendment No. 2 in its capacity as assignee of any such Existing Term B Loans and Existing Term C Loans and as a “Term B Lender” and “Term C Lender” hereunder. In connection with any proposed amendmentsuch assignments, waiver or consent hereunder pursuant to Section 15.2 (i) requiring the consent Replacement Lender shall purchase the foregoing by paying to such Non-Consenting Lenders (immediately following satisfaction of all Lenders, Section D.2. hereof) a price equal to the consent of Required Lenders is obtained but the consent of all Lenders whose consent is required is not obtained or (ii) requiring the consent of Required Lenders, the consent of Lenders holding fifty-one percent (51%) or more of the applicable threshold, is obtained but the consent of Required Lenders is not obtained (any Lender withholding consent as described in clause (i) principal amount thereof plus accrued and unpaid interest thereon and (ii) hereof being referred the Borrower shall repay pursuant to as a “Non-Consenting Lender”), then, so long as the Agent is not a Non-Consenting Lender, the Agent may, at the sole expense Section 13.7(b) of the Borrowers, upon notice Credit Agreement all Obligations (other than the principal amount plus accrued and unpaid interest) of the Borrower (if any) owing to such Non-Consenting Lender and in respect of this Amendment No. 2 relating to the Borrowers, require applicable Existing Term B Loans and/or Existing Term C Loans of such Non-Consenting Lender. For the avoidance of doubt, each Non-Consenting Lender shall be deemed to assign have executed an Assignment and delegate, without recourse (in accordance Acceptance with the restrictions contained in Section 15.5(b)), respect to all of its interests, rights and obligations under this Agreement to an Eligible Assignee that shall assume such obligations (which assignee may be another Lender, if a Lender accepts such assignment); provided, however, that such Lender shall have received payment of an amount equal to the then outstanding principal of its Advances, accrued interest thereon, accrued fees and all other amounts payable to it hereunder, from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Borrowers (in the case of all other amounts)Existing Term B Loan and/or Existing Term C Loans.
Appears in 2 contracts
Samples: Credit Agreement, Credit Agreement (Talen Energy Corp)
Replacement of Non-Consenting Lenders. If, in connection with any proposed amendment, waiver or consent hereunder pursuant to Section 15.2 (ia) requiring the consent of all Lenders, the consent of Required Lenders is obtained but the consent of all Lenders whose consent is required is not obtained or (ii) requiring the consent of Required Lenders, the consent of Lenders holding fifty-one percent (51%) or more of the applicable threshold, is obtained but the consent of Required Lenders is not obtained (If any Lender withholding consent as described in clause (i) and (ii) hereof being referred to as a “Non-Consenting Lender”), then, so long as the Agent is not a Non-Consenting Lender, then the Agent Company may, at the its sole expense of the Borrowersand effort, upon notice to such Non-Consenting Lender and the BorrowersFacility Agent, require such Non-Consenting Lender to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in Section 15.5(bin, and consents required by Clause 27 (Changes to the Parties)), all of its interests, rights and obligations under this Agreement the Finance Documents to an Eligible Assignee any person that shall assume such obligations (which assignee may be another Lender, if a Lender accepts such assignment); provided, however, that provided that:
(i) no Default is outstanding at the time of the assignment or delegation or would be outstanding as a result of it;
(ii) such Lender shall have received payment of an amount equal to the outstanding principal of its AdvancesLoans, accrued interest thereon, accrued fees and all other amounts payable to it hereunder, under the Finance Documents from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Borrowers Company (in the case of all other amounts);
(iii) such assignment does not conflict with applicable law; and
(iv) the applicable assignee shall have consented to the applicable amendment, waiver or consent which resulted in that Lender becoming a Non-Consenting Lender.
(b) A Lender shall not be required to make any such assignment if, prior thereto, as a result of a waiver by such Lender or otherwise, the circumstances entitling the Company to require such assignment and delegation cease to apply.
(c) Each Non-Consenting Lender shall be entitled to the continuing benefit of the indemnities provided to the Non-Consenting Lender under Clause 24 (Indemnities and Break Costs) in respect of any action or omission which occurred, or which is alleged to have occurred, during the period in which they were a Lender (unless the Non-Consenting Lender has already been indemnified by an Obligor under a Finance Document for that action or omission).
(d) Where a Lender is a Non-Consenting Lender and has made or is required to make an assignment and/or delegation under this Subclause, and that Non-Consenting Lender (or any of its Affiliates) is also a Finance Party in another capacity or capacities, that Non-Consenting Lender (or that Affiliate) acting in each such capacity (the outgoing Finance Party) shall, on the date on which it makes the assignment and/or delegation under this Subclause in its capacity as a Lender, be considered for the purposes of this Agreement to have resigned from each of its other capacities as a Finance Party and such resignation by the outgoing Finance Party in each of its other capacities shall be deemed to have become effective on the date on which:
(i) arrangements satisfactory to the outgoing Finance Party have been put in place to ensure that no amounts which are or may be owed to it in each such capacity will remain outstanding after that date and that indemnities reasonably acceptable to that outgoing Finance Party for any further loss or liability which it might incur for having acted in each such capacity have been provided;
(ii) the Company has designated another Lender (or Affiliate of a Lender) as replacement for the outgoing Finance Party in each relevant capacity under the Finance Documents; and
(iii) the outgoing Finance Party has assigned all of its interests, rights and obligations in each relevant capacity to that replacement Lender (or Affiliate of a Lender) designated by the Company under subparagraph (d)(ii) above.
Appears in 2 contracts
Samples: Fifth Supplemental Agreement (MGM Resorts International), Supplemental Agreement (MGM Resorts International)
Replacement of Non-Consenting Lenders. If, in connection with any proposed amendment, waiver or consent hereunder pursuant to Section 15.2 (i) requiring the consent of all Lenders, the consent of Required Lenders is obtained but the consent of all Lenders whose consent is required is not obtained or (ii) requiring the consent of Required Lenders, the consent of Lenders holding fifty-one percent (51%) or more of the applicable threshold, is obtained but the consent of Required Lenders is not obtained (If any Lender withholding consent as described in clause (i) and (ii) hereof being referred to as such Lender, a “Non-Consenting Lender”)) has failed to consent to a proposed amendment or waiver which pursuant to the terms of Section 11.2 requires the consent of all of the Lenders or all of the affected Lenders and with respect to which the Requisite Lenders shall have granted their consent, then, so long as then the Agent is not a Borrower shall have the right (unless such Non-Consenting Lender, the Agent may, at the sole expense of the BorrowersLender grants such consent), upon ten (10) Banking Days’ prior notice to the Non-Consenting Lender and the Administrative Agent, to replace such Non-Consenting Lender by requiring such Non-Consenting Lender to assign, in accordance with Section 11.8, all of its Loans, participations in Letters of Credit and Commitment hereunder to one or more other then-existing Lenders or to another Eligible Assignee reasonably satisfactory to the Administrative Agent, provided that: (a) the Borrower shall pay to such Non-Consenting Lender being replaced all Obligations owing to it and any amount payable pursuant to Section 3.6(e), (b) the Borrowersreplacement Lender shall pay the assignment fee referred to in Section 11.8(d), (c) the replacement Lender shall grant its consent with respect to the applicable proposed amendment or waiver and (d) the Borrower may exercise its right to replace Lender hereunder with respect to no more than three Lenders during the term of this Agreement.”
17. Exhibit B to the Credit Agreement is hereby replaced in its entirety with Exhibit B attached hereto.
18. The following reference is hereby inserted in the table of contents in the appropriate position: “N — WildBlue Acquisition Documents.”
19. A new Exhibit P (Composite Credit Agreement) is attached to the Credit Agreement, immediately following Exhibit O, such Exhibit to be in the form attached hereto as Exhibit P. Exhibit P sets forth a composite copy of the Credit Agreement consisting of the Credit Agreement, as amended by the Prior Amendments and this Amendment.
20. A new Exhibit Q (New Lender Addendum) is attached to the Credit Agreement, immediately following Exhibit P, such Exhibit to be in the form attached hereto as Exhibit Q.
21. No course of dealing on the part of Lenders, the Administrative Agent, the Collateral Agent or their officers, nor any failure or delay in the exercise of any right by the Administrative Agent, the Collateral Agent or any Lender, shall operate as a waiver thereof, and any single or partial exercise of any such right shall not preclude any later exercise of any such right. Administrative Agent’s, Collateral Agent’s or any Lenders’ failure at any time to require such Non-Consenting Lender strict performance by Borrower of any provision of any Loan Document shall not affect any right of any Lender, Administrative Agent or Collateral Agent thereafter to assign demand strict compliance and delegateperformance. Any suspension or waiver of a right must be in writing signed by an officer of Administrative Agent, without recourse (in accordance with the restrictions terms of the Credit Agreement.
22. The Credit Agreement, as amended hereby, shall be and remain in full force and effect in accordance with its respective terms and hereby is ratified and confirmed in all respects. Except as expressly set forth herein, the execution, delivery, and performance of this Amendment shall not operate as a waiver of, or as an amendment of, any right, power, or remedy of Administrative Agent, Collateral Agent or any Lender under the Credit Agreement, as in effect prior to the date hereof.
23. Except for representations and warranties which expressly speak as of a particular date or are no longer true and correct as a result of a change which is permitted by the Credit Agreement, the representations and warranties contained in the Credit Agreement or in any other document or documents relating thereto are true and correct in all material respects on and as of the date hereof as though made on and date hereof, and all such representations and warranties shall survive the execution and delivery of this Amendment. No Default or Event of Default has occurred and is continuing as of the date hereof.
24. As a condition to the effectiveness of this Amendment, Administrative Agent and the Lenders shall have received, in form and substance reasonably satisfactory to Administrative Agent and the Lenders, the following:
(a) this Amendment, duly executed by Borrower, Administrative Agent, Collateral Agent and the Lenders;
(b) an Affirmation of Subsidiary Guaranty and Security Agreement, duly executed by each Guarantor;
(c) resolutions of the Board of Directors of Borrower authorizing the execution, delivery and performance of this Amendment, with an incumbency certificate; each in form and content reasonably acceptable to Administrative Agent;
(d) a certificate signed by a Responsible Official of Borrower certifying that the condition specified in Section 15.5(b8.1(e) of the Credit Agreement is true and correct as of the date hereof;
(e) a consent fee, payable to the Administrative Agent for the ratable benefit of each Lender which executes this Amendment, according to the Pro Rata Share of each such Lender, in the amount of one eighth of one percent (0.125%) of each such Lender’s Pro Rata Share immediately prior to effectiveness of this Amendment (it being agreed by the Borrower that such fee is earned in full by such Lender upon its execution of this Amendment, and no part of such fee shall be refundable notwithstanding any early termination of the Commitments, additional amendment to the Credit Agreement or other circumstance);
(f) all reasonable attorneys’ fees and costs incurred by the Administrative Agent’s and Collateral Agent’s counsel through the date of this Amendment, which may be debited from any of Borrower’s accounts (following Borrower’s authorization of such fees and costs); and
(g) such other documents, and completion of such other matters, as Administrative Agent or any Lender proposing to sign this Amendment may reasonably deem necessary or appropriate.
25. The Governing law and venue provisions of Section 11.17 of the Credit Agreement are incorporated herein by this reference mutatis mutandis. This Amendment may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one instrument. Delivery of an executed counterpart hereof by facsimile transmission shall be effective as delivery of a manually executed counterpart. Except as amended hereby, all of its intereststhe provisions of the Credit Agreement and the other Loan Documents shall remain unmodified and in full force and effect except that each reference to the “Agreement”, rights or words of like import in any Loan Document, shall mean and obligations under this be a reference to the Credit Agreement to an Eligible Assignee that as amended hereby. This Amendment shall assume be deemed a “Loan Document” as defined in the Credit Agreement. Each party shall execute and deliver such obligations (which assignee further documents, and perform such further acts, as may be another Lender, if a Lender accepts such assignment); provided, however, that such Lender shall have received payment reasonably necessary to achieve the intent of an amount equal to the outstanding principal of its Advances, accrued interest thereon, accrued fees and all other amounts payable to it hereunder, from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Borrowers (parties as expressed in the case of all other amounts)this Amendment.
Appears in 1 contract
Replacement of Non-Consenting Lenders. If, (i) in connection with any proposed amendment, waiver or consent hereunder pursuant to Section 15.2 (i) requiring the consent of all Lenders, “each Lender” or “each Lender directly affected thereby,” the consent of the Required Lenders is obtained obtained, but the consent of all Lenders whose consent is required is not obtained or (ii) requiring the consent of Required Lenders, the consent of Lenders holding fifty-one percent (51%) or more of the applicable threshold, is obtained but the consent of Required other necessary Lenders is not obtained (any such Lender withholding whose consent as described in clause (i) and (ii) hereof is necessary but not obtained being referred to herein as a “Non-Consenting Lender”), then, so long as or (ii) any Lender makes a claim for compensation under Section 3.1 or 3.5 an (“Increased Cost Lender”) then the Agent is not a Company may elect to replace such Non-Consenting LenderLender or Increased Cost Lender as a Lender party to this Agreement, provided that, concurrently with such replacement, (i) another bank or other entity which is reasonably satisfactory to the Company and the Administrative Agent mayshall agree, at as of such date, to purchase for cash the sole expense of the Borrowers, upon notice Loans and other Obligations due to such Non-Consenting Lender or Increased Cost Lender pursuant to an Assignment Agreement and the Borrowers, require to become a Lender for all purposes under this Agreement and to assume all obligations of such Non-Consenting Lender or Increased Cost Lender to assign be terminated as of such date and delegate, without recourse (in accordance to comply with the restrictions contained requirements of Section 13.3, and (ii) each Borrower shall pay to such Non-Consenting Lender or Increased Cost Lender in Section 15.5(b)same day funds on the day of such replacement (1) all interest, fees and other amounts then accrued but unpaid to such Non-Consenting Lender by such Borrower hereunder to and including the date of termination, including without limitation payments due to such Non-Consenting Lender under Sections 3.1 and 3.5 (other than any disputed amounts), all of its interests, rights and obligations under this Agreement to (2) an Eligible Assignee that shall assume such obligations (which assignee may be another Lenderamount, if a Lender accepts such assignment); providedany, however, that such Lender shall have received payment of an amount equal to the outstanding principal payment which would have been due to such Lender on the day of its Advances, accrued interest thereon, accrued fees and all other amounts payable to it hereunder, from such replacement under Section 3.4 had the assignee (Loans of such Non-Consenting Lender or Increased Cost Lender been prepaid on such date rather than sold to the extent of such outstanding principal and accrued interest and fees) or the Borrowers (in the case of all other amounts)replacement Lender.
Appears in 1 contract
Samples: Credit Agreement (Acuity Brands Inc)
Replacement of Non-Consenting Lenders. If, in connection with any proposed amendment, waiver or consent hereunder pursuant to Section 15.2 15.1 hereof:
(i) requiring the consent of all Lenders, the consent of Required Lenders is obtained but the consent of all Lenders whose consent is required is not obtained or obtained,
(ii) requiring the consent of Required Lenders, the consent of Lenders holding fifty-one percent (51%) % or more of the applicable threshold, is obtained but the consent of Required Lenders is not obtained (any Lender withholding consent as described in clause (i) and (ii) hereof being referred to as a “"Non-Consenting Lender”"), thenTHEN, so long as the Administrative Agent or any Term B Lender is not a the Non-Consenting Lender, the Agent Borrower may, at the its sole expense of the Borrowersand effort, upon notice to such Non-Consenting Lender and the BorrowersAdministrative Agent, require such Non-Consenting Lender to assign and delegate, without recourse (in accordance with the restrictions contained in Section 15.5(b)13.1), all of its interests, rights and obligations under this Agreement to an Eligible Assignee that shall assume such obligations (which assignee may be another Lender, if a Lender accepts such assignment); providedPROVIDED that (i) the Borrower shall have received the prior written consent of the Administrative Agent, howeverwhich consent shall not be unreasonably withheld, that (ii) such Lender shall have received payment of an amount equal to the outstanding principal of its AdvancesLoans, accrued interest thereon, accrued fees and all other amounts payable to it hereunder, from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Borrowers Borrower (in the case of all other amounts, including any breakage compensation under Section 14.4 hereof).
Appears in 1 contract
Replacement of Non-Consenting Lenders. If, in connection with any proposed amendment, waiver or consent hereunder pursuant to Section 15.2 (i) requiring the consent of all Lenders, the consent of Required Lenders is obtained but the consent of all Lenders whose consent is required is not obtained or (ii) requiring the consent of Required Lenders, the consent of Lenders holding fifty-one percent (51%) or more of the applicable threshold, is obtained but the consent of Required Lenders is not obtained (If any Lender withholding consent as described in clause (i) and (ii) hereof being referred to as a “Non-Consenting Lender”), then, so long as the Agent is not becomes a Non-Consenting LenderLender hereunder, then the Agent Borrower may, at the its sole expense of the Borrowersand effort, upon notice to such Non-Consenting Lender and the BorrowersAdministrative Agent, require such Non-Consenting Lender to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in Section 15.5(b9.7(c)), ) all of its interests, rights and obligations under this Agreement and the related Loan Documents to an Eligible Assignee assignee that shall assume such obligations (which assignee may be another Lender, if a Lender accepts such assignment); providedprovided that (i) the Borrower shall have received the prior written consent of the Administrative Agent, howeverwhich consent shall not unreasonably be withheld, that (ii) such Non-Consenting Lender shall have received payment of an amount equal to the outstanding principal of its AdvancesLoans and participations in L/C Borrowings, accrued interest thereon, accrued fees and all other amounts payable to it hereunder, from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Borrowers Borrower (in the case of all other amounts)) and (iii) the applicable assignee shall have consented to the applicable amendment, waiver or consent that caused such Non-Consenting Lender to become a Non-Consenting Lender. A Non-Consenting Lender shall not be required to make any such assignment and delegation if, prior thereto, as a result of a waiver by such Non-Consenting Lender or otherwise, the circumstances entitling the Borrower to require such assignment and delegation cease to apply. Each party hereto agrees that (x) an assignment required pursuant to this Section 2.19 may be effected pursuant to an Assignment and Assumption executed by the Borrower, the Administrative Agent and the assignee, and (y) the Non-Consenting Lender required to make such assignment need not be a party thereto in order for such assignment to be effective and shall be deemed to have consented to and be bound by the terms thereof; provided that, following the effectiveness of any such assignment, the other parties to such assignment agree to execute and deliver such documents necessary to evidence such assignment as reasonably requested by the applicable Non-Consenting Lender; provided that any such documents shall be without recourse to or warranty by the parties thereto.
Appears in 1 contract
Replacement of Non-Consenting Lenders. If, in connection with any proposed amendment, waiver or consent hereunder pursuant to Section 15.2 (i) requiring the consent of all Lenders, the consent of Required Lenders is obtained but the consent of all Lenders whose consent is required is not obtained or (ii) requiring the consent of Required Lenders, the consent of Lenders holding fifty-one percent (51%) or more of the applicable threshold, is obtained but the consent of Required Lenders is not obtained (If any Lender withholding consent as described in clause (i) and (ii) hereof being referred to as a “Non-Consenting Lender”) refuses to consent to an amendment to or waiver of any Loan Document or provision thereof, which amendment or waiver requires unanimous consent of all the Lenders, or all the Lenders with a Commitment for a particular Facility, and has been approved by the Required Lenders in order to be effective, then the Administrative Agent may or the Borrower may (but neither shall be obligated to), then, so long as the Agent is not a Non-Consenting Lender, the Agent may, at the sole expense of the Borrowers, upon notice to such the Non-Consenting Lender (and the BorrowersAdministrative Agent, if applicable), require such the Non-Consenting Lender to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in Section 15.5(b)), 9.3) all of its interests, rights rights, duties and obligations under this Agreement and the Loan Documents to an Eligible Assignee Lender that shall assume such obligations (which assignee may be another a Lender, if a Lender accepts such assignment); providedprovided that:
(a) if it is an assignment at the request of the Borrower, howeverthe Borrower shall have received the prior written consent of the Administrative Agent (and if the Commitment and Loans of a Revolving Term Lender are being assigned, that the Letter of Credit Issuer), which consent shall not unreasonably be withheld,
(b) if it is an assignment at the request of the Administrative Agent and there is no Event of Default, the Borrower shall have consented to such assignment (and if the Commitment and Loans of a Revolving Term Lender are being assigned, the Letter of Credit Issuer shall have consented) which consents shall not be unreasonably withheld,
(c) in the case of a Non-Consenting Lender, the interests, rights, duties and obligations of all Non-Consenting Lenders are similarly assigned to Eligible Lenders, and
(d) the Non-Consenting Lender shall have received payment of an amount equal to the outstanding principal of its AdvancesLoans, and participations in unreimbursed Letter of Credit Exposure, if any, accrued interest thereon, accrued fees and all other amounts payable to it hereunderhereunder and under the other Loan Documents, from the assignee Eligible Lender (to the extent of such outstanding principal and principal, accrued interest and accrued fees) or the Borrowers Borrower (in the case of all other amounts).
Appears in 1 contract
Samples: Credit Agreement (Green Plains Renewable Energy, Inc.)
Replacement of Non-Consenting Lenders. If, in connection with any proposed amendment, modification or waiver or consent hereunder pursuant to any of the provisions of this Agreement as contemplated by clauses (a) through (g), inclusive, of the first proviso to Section 15.2 (i) requiring the consent of all Lenders10.1.1, the consent of the Required Lenders is obtained but the consent of all one or more of such other Lenders whose consent is required is not obtained obtained, then the Borrower shall have the right, so long as all non-consenting Lenders whose individual consent is required are treated as described in either clauses (A) or (B) below, to either (A) replace each such non-consenting Lender or Lenders (or, at the option of the Borrower if the respective Lender's consent is required with respect to less than all Loans, to replace only the respective Loans of the respective non-consenting Lender which gave rise to the need to obtain such Lender's individual consent) with one or more financial institutions or other Persons (each a "Consenting Lender") pursuant to this Section 10.1.2 so long as at the time of such replacement, each such Consenting Lender consents to the proposed amendment, modification, or waiver or (B) terminate such non-consenting Lender's Revolving Loan Commitment and repay all outstanding Loans of such Lender which gave rise to the need to obtain such Lender's consent, in accordance with Section 2.2.1(b) and/or 3.1.1(h); provided that, unless the Revolving Loan Commitment terminated and Loans repaid pursuant to the preceding clause (B) are immediately replaced in full at such time through the addition of new Lenders or the increase of the Commitments and/or outstanding Loans of existing Lenders (who in each case must specifically consent thereto), then in the case of any action pursuant to preceding clause (B) the Required Lenders (determined before giving effect to the proposed action) shall specifically consent thereto, provided, further, that in any event Borrower shall not have the right to replace a Lender, terminate its Revolving Loan Commitment or repay its Loans solely as a result of the exercise of such Lender's rights (and the withholding of any required consent by such Lender) contemplated by the first proviso to this Section 10.1.2. At the time of any replacement pursuant to this Section 10.1.2, the Consenting Lender shall enter into one or more assignment agreements, in form and substance reasonably satisfactory to the Administrative Agent, pursuant to which the Consenting Lender shall acquire all of the Commitments and outstanding Loans of, and participation in Letters of Credit and Swing Line Loans by, the non-consenting Lender and (ii) requiring the consent of Required Lenders, the consent of Lenders holding fifty-one percent (51%) or more all obligations of the applicable thresholdBorrower owing to the non-consenting Lender (including, is obtained but the consent of Required Lenders is not obtained (any Lender withholding consent as without limitation, such increased costs and excluding those specifically described in clause (i) above in respect of which the assignment purchase price has been, or is concurrently being paid) shall be paid in full to such non-consenting Lender concurrently with such replacement. Upon the execution of the respective assignment documentation, the payment of amounts referred to in clauses (i) and (ii) hereof being referred to as a “Non-Consenting Lender”)above and, then, if so long as requested by the Agent is not a Non-Consenting Lender, delivery to the Agent may, at the sole expense Consenting Lender of the Borrowersappropriate Note or Notes executed by the Borrower, upon notice the Consenting Lender shall become a Lender hereunder and the non-consenting Lender shall cease to constitute a Lender hereunder, except with respect to indemnification provisions under this Agreement, which shall survive as to such Nonnon-Consenting consenting Lender. Notwithstanding anything to the contrary contained above, no Lender and the Borrowers, require such Non-Consenting Lender to assign and delegate, without recourse (in accordance with the restrictions contained in Section 15.5(b)), all of its interests, rights and obligations under this Agreement to that acts as an Eligible Assignee that shall assume such obligations (which assignee Issuer may be another Lenderreplaced hereunder at any time which it has Letters of Credit outstanding hereunder unless arrangements reasonably satisfactory to such Issuer (including the furnishing of a standby letter of credit in form and substance, if a Lender accepts and issued by an issuer reasonably satisfactory to such assignment); provided, however, that Issuer or the Cash Collateralizing of Letter of Credit Outstandings in amounts and pursuant to arrangements reasonably satisfactory to such Lender shall Issuer) have received payment of an amount equal been made with respect to the outstanding principal of its Advances, accrued interest thereon, accrued fees and all other amounts payable to it hereunder, from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Borrowers (in the case Letters of all other amounts).Credit. 101 135
Appears in 1 contract
Samples: Assignment, Amendment and Restatement Agreement (Global Power Equipment Group Inc/)
Replacement of Non-Consenting Lenders. If, in connection with any proposed amendment, modification or waiver or consent hereunder pursuant to any of the provisions of this Agreement as contemplated by clauses (a) through (g) inclusive, of the first proviso to Section 15.2 (i) requiring the consent of all Lenders11.1.1, the consent of the Required Lenders is obtained but the consent of all one or more of such other Lenders whose consent is required is not obtained obtained, then the Borrower shall 2 have the right to replace each such non-consenting Lender or Lenders with one or more financial institutions or other Persons (each a "Consenting Lender") pursuant to this Section 11.16 so long as at the time of such replacement, each such Consenting Lender consents to the proposed amendment, modification or waiver. At the time of any replacement pursuant to this Section 11.16, the Consenting Lender shall enter into one or more assignment agreements, in form and substance reasonably satisfactory to the Administrative Agent, pursuant to which the Consenting Lender shall acquire all of the Commitments and outstanding Loans of, and participation in Letters of Credit and Swing Line Loans by, the non-consenting Lender and (ii) requiring the consent of Required Lenders, the consent of Lenders holding fifty-one percent (51%) or more all obligations of the applicable threshold, is obtained but Borrower owing to the consent non-consenting Lender shall be paid in full to such non-consenting Lender concurrently with such replacement. Upon the payment of Required Lenders is not obtained (any Lender withholding consent as described amounts referred to in clause clauses (i) and (ii) hereof being referred to as a “Non-Consenting Lender”), then, so long as the Agent is not a Non-Consenting Lenderabove, the Agent may, at the sole expense of the Borrowers, upon notice to such Non-Consenting Lender shall become a Lender hereunder and the Borrowers, require such Nonnon-Consenting consenting Lender shall cease to assign and delegate, without recourse (in accordance with the restrictions contained in Section 15.5(b)), all of its interests, rights and obligations under this Agreement to an Eligible Assignee that shall assume such obligations (which assignee may be another Lender, if constitute a Lender accepts such assignment); provided, however, that such Lender shall have received payment of an amount equal to the outstanding principal of its Advances, accrued interest thereon, accrued fees and all other amounts payable to it hereunder, from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Borrowers (in the case of all other amounts).
Appears in 1 contract
Samples: Assignment, Amendment and Restatement Agreement (Global Power Equipment Group Inc/)
Replacement of Non-Consenting Lenders. If, in connection with any proposed amendment, waiver or consent hereunder pursuant to Section 15.2 (ia) requiring the consent of all Lenders, the consent of Required Lenders is obtained but the consent of all Lenders whose consent is required is not obtained or (ii) requiring the consent of Required Lenders, the consent of Lenders holding fifty-one percent (51%) or more of the applicable threshold, is obtained but the consent of Required Lenders is not obtained (If any Lender withholding consent as described in clause (i) and (ii) hereof being referred to as a “Non-Consenting Lender”), then, so long as the Agent is not a Non-Consenting Lender, the Agent Borrower may, :
(i) at the its sole expense of the Borrowersand effort, upon notice to such Non-Consenting Lender and the BorrowersAdministrative Agent, require such Non-Consenting Lender to assign and delegate, without recourse (recourse, in accordance with and subject to the restrictions contained in in, and consents required by, Section 15.5(b))10.07, all of its interests, rights (other than its existing rights to payments pursuant to Section 2.07 or Section 2.08) and obligations under this Agreement and the related Margin Loan Documentation to an Eligible Assignee a Person eligible to take such Loans by assignment pursuant to Section 10.07 (and such Non-Consenting Lender shall be deemed to have consented to the assignment and delegation of its interests, rights and obligations if it does not execute and deliver any such assignment to the Administrative Agent within five (5) Business Days after having received a request therefor); provided that (w) any such assignment pursuant to this clause (i) will not be deemed to be a waiver or release by such Lender of its right to any amount payable under Sections 2.04(c) and 2.07(f), (x) Borrower shall assume have paid to the Administrative Agent the assignment fee (if any), (y) such obligations assignment does not conflict with applicable Law and (which z) the applicable assignee may be another Lendershall have consented to the applicable amendment, if a Lender accepts such assignment)waiver or consent; provided, however, that Borrower (or such Non-Consenting Lender, as applicable) shall offer each Initial Lender and/or any of its Permitted Affiliates a right of first refusal to acquire the interests, rights and obligations of such Non-Consenting Lender by assignment ratably in accordance with such Applicable Lender’s Applicable Percentage and if any such Initial Lender and/or any of its Permitted Affiliates does not accept such offer within seven (7) Business Days, then it shall be deemed to have waived its right of first refusal; provided further that, if an Initial Lender declines such offer, then such declined amounts shall be reoffered to each Initial Lender that accepted such initial offer and each such Initial Lender shall have received payment of an amount equal respond within three (3) Business Days to the outstanding principal such reoffer; or
(ii) if such Initial Lender and/or any of its AdvancesPermitted Affiliates does not accept such offer(s) of first refusal with respect to any assignment of such Non-Consenting Lender’s interests, rights and obligations as set forth in clause (a)(i), terminate and prepay in full such Non-Consenting Lender’s Loans and Commitments, together with accrued and unpaid interest thereon, accrued fees thereon and any amount due under Sections 2.04(c) and 2.07(f) (and all other amounts Obligations that are then due and payable to it hereunder, from the assignee (to the extent or will become due and payable on account of such outstanding principal prepayment); provided that (i) such Non-Consenting Lender is not an Accelerating Lender and accrued interest and fees(ii) such termination will not be deemed to be a waiver or release of any claim that Borrower, the Borrowers Administrative Agent or any other Lender may have against such Non-Consenting Lender.
(in the case b) A Non-Consenting Lender shall not be required to make any such assignment or delegation if, prior thereto, as a result of all other amounts)a waiver by such Lender or otherwise, it ceases to be a Non-Consenting Lender.
Appears in 1 contract
Samples: Margin Loan Agreement (HNA Tourism Group Co., Ltd.)
Replacement of Non-Consenting Lenders. IfIf any Existing Lender declines or fails to consent to this Amendment Agreement by returning an executed counterpart hereof to the Administrative Agent prior to 5:00 p.m. (New York City time), on August 1, 2013, then pursuant to Sections 3.06(b) and 10.13 of the Existing Revolving Credit Agreement, such Existing Lender shall be replaced and the Commitments, Loans and other Obligations purchased and assumed by either (x) a New Lender or (y) a Consenting Lender which is willing to increase its Commitments and Loans (identified on Schedule 1 by an asterisk), in each case as evidenced by its execution and delivery of this Amendment Agreement (which will also be deemed to be its execution and delivery of an Assignment and Assumption substantially in the form of Exhibit B to the Existing Revolving Credit Agreement as an “Assignee” as defined therein and thereunder, agreeing in such capacity to all the terms therein applicable to it), and effective on the Closing Date (as defined in the Amended ACT Revolving Credit Agreement). The Administrative Agent agrees that notwithstanding the provisions of Section 10.13 of the Existing Revolving Credit Agreement, the Company shall not be required to pay to the Administrative Agent any assignment fee in connection with any proposed amendment, waiver or consent hereunder pursuant to Section 15.2 (i) requiring the consent replacement of all Lenders, the consent of Required Lenders is obtained but the consent of all Lenders whose consent is required is not obtained or (ii) requiring the consent of Required Lenders, the consent of Lenders holding fifty-one percent (51%) or more of the applicable threshold, is obtained but the consent of Required Lenders is not obtained (any Lender withholding consent as described in clause (i) and (ii) hereof being referred to as a “Non-Consenting Lender”), then, so long as the Agent is not a Non-Consenting Lender, the Agent may, at the sole expense of the Borrowers, upon notice to such Non-Lenders. Each Consenting Lender and each New Lender hereby agrees that, with respect to any Assignment and Assumption entered into by such Lender on and after the Borrowerseffectiveness of this Amendment Agreement, require such Non-each assignee thereunder shall expressly agree to be a Consenting Lender to assign for purposes of this Amendment Agreement, and delegate, without recourse (in accordance with the restrictions contained in Section 15.5(b)), all of its interests, rights shall be evidenced by an Assignment and obligations under this Agreement to an Eligible Assignee that shall assume such obligations (which assignee may be another Lender, if a Lender accepts such assignment); provided, however, that such Lender shall have received payment of an amount equal to the outstanding principal of its Advances, accrued interest thereon, accrued fees and all other amounts payable to it hereunder, from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Borrowers (Acceptance in the case of all other amounts)form attached as Annex B hereto.
Appears in 1 contract
Samples: Revolving Credit Amendment Agreement (Actavis, Inc.)
Replacement of Non-Consenting Lenders. IfNotwithstanding anything to the contrary provided in Section 9.6, in connection with any proposed amendment, waiver or consent hereunder pursuant to Section 15.2 (i) requiring the consent of all Lenders, the consent of Required Lenders is obtained but the consent of all Lenders whose consent is required is not obtained or (ii) requiring the consent of Required Lenders, the consent of Lenders holding fifty-one percent (51%) or more of the applicable threshold, is obtained but the consent of Required Lenders is not obtained (if any Lender withholding consent as described in clause (i) and (ii) hereof being referred to as such Lender, a “Non-Consenting Lender”)) has failed to consent to a proposed amendment, thenwaiver, so long as discharge or termination which pursuant to the Agent is not a terms of Section 9.1 requires the consent of all of the Lenders or all of the Lenders affected and with respect to which the Required Lenders shall have granted their consent, then the Borrower shall have the right (unless such Non-Consenting Lender grants such consent) to replace such Non-Consenting Lender by deeming such Non-Consenting Lender to have assigned its Loans, and its Commitments hereunder to one or more assignees reasonably acceptable to the Administrative Agent (unless such assignee is a Lender, the Agent mayan Affiliate of a Lender or an Approved Fund); provided, at the sole expense that: (i) all Obligations of the BorrowersBorrower owing to such Non-Consenting Lender being replaced shall be paid in full to such Non-Consenting Lender concurrently with such assignment and (ii) the replacement Lender shall purchase the foregoing by paying to such Non-Consenting Lender a price equal to the principal amount thereof plus accrued and unpaid interest thereon. No action by or consent of the Non-Consenting Lender shall be necessary in connection with such assignment, which shall be immediately and automatically effective upon notice to payment of such purchase price. In connection with any such assignment, the Borrower, Administrative Agent, such Non-Consenting Lender and the Borrowersreplacement Lender shall otherwise comply with Section 9.6; provided, require that if such Non-Consenting Lender does not comply with Section 9.6 within three (3) Business Days after Borrower’s request, compliance with Section 9.6 shall not be required to assign and delegate, without recourse (in accordance with the restrictions contained in Section 15.5(b)), all of its interests, rights and obligations under this Agreement to an Eligible Assignee that shall assume such obligations (which assignee may be another Lender, if a Lender accepts effect such assignment); provided, however, that such Lender shall have received payment of an amount equal to the outstanding principal of its Advances, accrued interest thereon, accrued fees and all other amounts payable to it hereunder, from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Borrowers (in the case of all other amounts).
Appears in 1 contract
Replacement of Non-Consenting Lenders. If(a) Each existing Lender holding Term B Loans that does not execute a counterpart to this Agreement in the form attached hereto as Annex I with respect to such Lender’s Term B Loans will be deemed to be a Non-Consenting Lender (each such Lender in such capacity, in connection with any proposed amendment, waiver or consent hereunder pursuant to Section 15.2 (i) requiring the consent of all Lenders, the consent of Required Lenders is obtained but the consent of all Lenders whose consent is required is not obtained or (ii) requiring the consent of Required Lenders, the consent of Lenders holding fifty-one percent (51%) or more of the applicable threshold, is obtained but the consent of Required Lenders is not obtained (any Lender withholding consent as described in clause (i) and (ii) hereof being referred to as a “Non-Consenting Term B Lender”), then, so long as ) for purposes of Section 2.19(c) of the Agent is not a Credit Agreement. The Borrower shall be deemed to have exercised its right pursuant to Section 2.19(c) of the Credit Agreement to require that each Non-Consenting Lender, the Agent may, at the sole expense of the Borrowers, upon notice to such Non-Consenting Term B Lender and the Borrowers, require such Non-Consenting Lender to assign and delegate, without recourse (in accordance with the restrictions contained in Section 15.5(b))recourse, all of its interests, rights and obligations under the Credit Agreement with respect to the Term B Loans to JPMorgan Chase Bank, N.A., as replacement lender (in such capacity, the “Replacement Term B Lender”), which assignment shall occur immediately and automatically, without action by or consent of any Non-Consenting Term B Lender, upon satisfaction of the condition in Section 6(d) below, and the Replacement Term B Xxxxxx agrees to accept each such assignment.
(b) Each existing Lender holding Term B-1 Loans that does not execute a counterpart to this Agreement in the form attached hereto as Annex I with respect to an Eligible Assignee such Lender’s Term B-1 Loans will be deemed to be a Non-Consenting Lender with respect to such Lender’s Term B-1 Loans (each such Lender in such capacity, a “Non-Consenting Term B-1 Lender”) for purposes of Section 2.19(c) of the Credit Agreement. The Borrower shall be deemed to have exercised its right pursuant to Section 2.19(c) of the Credit Agreement to require that each Non-Consenting Term B-1 Lender assign and delegate, without recourse, all interests, rights and obligations under the Credit Agreement with respect to the Term B-1 Loans to JPMorgan Chase Bank, N.A., as replacement lender (in such capacity, the “Replacement Term B-1 Lender”), which assignment shall assume such obligations (which assignee may be another occur immediately and automatically, without action by or consent of any Non-Consenting Term B-1 Lender, if a upon satisfaction of the condition in Section 6(e) below, and the Replacement Term B-1 Lender accepts agrees to accept each such assignment); provided, however, that such Lender shall have received payment of an amount equal to the outstanding principal of its Advances, accrued interest thereon, accrued fees and all other amounts payable to it hereunder, from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Borrowers (in the case of all other amounts).
Appears in 1 contract
Replacement of Non-Consenting Lenders. If, in connection with any proposed amendment, waiver or consent hereunder pursuant to Section 15.2 (ia) requiring On and as of the consent of all LendersFirst Amendment Effective Date, the consent of Required Revolving Facility shall be allocated among the Lenders is obtained but under the consent of all Amended Credit Agreement, including Replacement Lenders whose consent is required is not obtained or (ii) requiring the consent of Required Lenderscollectively, the consent of Lenders holding fifty-one percent (51%) or more of “Continuing Lenders”), such that immediately after giving effect to this First Amendment on the applicable thresholdFirst Amendment Effective Date, is obtained but each Continuing Lender shall hold Revolving Commitments and Revolving Loans in the consent of Required Lenders is not obtained (any Lender withholding consent amounts set forth opposite such Person’s name on Schedule II to the Amended Credit Agreement, all as described in clause (i) and (ii) hereof being referred previously disclosed to as a “the Non-Consenting Lender”), then, so long as Lenders and the Agent is not a Non-Consenting LenderContinuing Lenders by the Administrative Agent.
(b) In addition, the Agent mayBorrower hereby requires, at the sole expense pursuant to (and in accordance with) Section 2.25 of the BorrowersExisting Credit Agreement, upon notice to such that each Non-Consenting Lender assign its Revolving Commitments and the BorrowersRevolving Loans, require such Non-Consenting Lender to assign and delegate, without recourse (in accordance with the restrictions contained in Section 15.5(b)), all of its interests, rights and obligations with respect thereto, under the Existing Credit Agreement and the related Loan Documents as of the First Amendment Effective Date (each, a “Non-Consenting Lender Assigned Interest”), to Replacement Lenders as set forth herein. Each of the Administrative Agent, the Issuing Bank and the Swingline Lender, by its signature to this First Amendment, hereby consents to the assignment of each of the Non-Consenting Lender Assigned Interests pursuant to this Section 2. This First Amendment constitutes any notice to the Administrative Agent and/or each Non-Consenting Lender that is required pursuant to Section 2.25 of the Existing Credit Agreement.
(c) As a result of the foregoing, a Continuing Lender’s Pro Rata Share of the Aggregate Revolving Commitments under the Amended Credit Agreement to an Eligible Assignee that shall assume such obligations (which assignee may be another (i) greater than such Continuing Lender’s Pro Rata Share of the Aggregate Revolving Commitments under the Existing Credit Agreement (each such Continuing Lender, if an “Increasing Lender”) or (ii) less than such Continuing Lender’s Pro Rata Share of the Aggregate Revolving Commitments under the Existing Credit Agreement (each such Continuing Lender, a Lender accepts such assignment“Decreasing Lender”); provided.
(d) To effect the foregoing, howeveron and as of the First Amendment Effective Date, that such (i) each Non-Consenting Lender shall be deemed to have assigned its Non-Consenting Lender Assigned Interest and (ii) each Consenting Lender shall be deemed to have assigned its Revolving Commitments and Revolving Loans, and all or any portion of its interests, rights and obligations with respect thereto, under the Existing Credit Agreement and the related Loan Documents as of the First Amendment Effective Date (each, a “Consenting Lender Assigned Interest” and, together with the Non-Consenting Lender Assigned Interests, collectively, the “Assigned Interests”), in each case for a purchase price at par (the “Purchase Price”), to Continuing Lenders in such amounts as required by the Administrative Agent in order that, after giving effect to all such assignments pursuant to this Section 2, (i) each Continuing Lender shall hold Revolving Commitments and Revolving Loans in the amounts set forth opposite such Person’s name on Schedule II to the Amended Credit Agreement, and (ii) each Non-Consenting Lender shall hold no Revolving Commitments and no Revolving Loans.
(e) On the First Amendment Effective Date:
(i) To the extent Revolving Loans are outstanding on the First Amendment Effective Date, each Increasing Lender shall remit to the Administrative Agent, in the manner contemplated by Section 2.6 of the Amended Credit Agreement, such amount as may be necessary for such Increasing Lender to hold Revolving Loans in the amounts set forth opposite such Person’s name on Schedule II to the Amended Credit Agreement, which amounts shall, in turn, be used by the Administrative Agent to remit to each Decreasing Lender such amount as may be necessary for such Decreasing Lender to hold Revolving Loans in the amounts set forth opposite such Person’s name on Schedule II to the Amended Credit Agreement.
(ii) The Administrative Agent shall remit (A) to each Consenting Lender and to each Non-Consenting Lender (with amounts received payment from the Borrower pursuant to Section 3(h) of this First Amendment) such Person’s pro rata share of all unpaid interest, commitment fees, Letter of Credit participation fees and other amounts (including any breakage costs) in respect of the Revolving Loans and Revolving Commitments of the Lenders under the Existing Credit Agreement, in each case that have accrued to but excluding the First Amendment Effective Date and (B) to each Non-Consenting Lender an amount equal to the outstanding principal Purchase Price (net of amounts paid pursuant to clause (A) above) with respect to its AdvancesNon-Consenting Lender Assigned Interest, accrued interest thereonwhereupon such Non-Consenting Lender shall cease to be a party to the Amended Credit Agreement.
(f) The Administrative Agent hereby waives each processing and recordation fee that would otherwise be due pursuant to Section 10.4 of the Existing Credit Agreement in connection with the assignments contemplated by this Section 2. Further, accrued fees it is hereby agreed that this First Amendment shall be deemed to be an Assignment and Acceptance with respect to the assignments contemplated by this Section 2.
(g) Each Replacement Lender, if any, that initially becomes a party to the Amended Credit Agreement on the First Amendment Effective Date hereby (i) represents and warrants that (A) it has full power and authority, and has taken all other amounts payable action necessary, to execute and deliver this First Amendment and to consummate the transactions contemplated hereby and to become a Lender under the Amended Credit Agreement, (B) on and as of the First Amendment Effective Date, it hereundershall be bound by the provisions of the Amended Credit Agreement as a Lender thereunder and, from the assignee (to the extent of its Revolving Commitment (or Revolving Loans) and all other related rights and obligations under the Amended Credit Agreement, shall have the obligations of a Lender thereunder, (C) it has received a copy of the Existing Credit Agreement, and has received or has been accorded the opportunity to receive copies of the most recent financial statements delivered pursuant to Section 5.1 thereof, as applicable, and such outstanding principal other documents and accrued interest information as it deems appropriate to make its own credit analysis and feesdecision to enter into this First Amendment and become a Lender under the Amended Credit Agreement, and (D) it has, independently and without reliance upon the Administrative Agent or any existing Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this First Amendment and become a Lender under the Amended Credit Agreement; and (ii) agrees that (A) it will, independently and without reliance on 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 the Loan Documents and (B) it will perform in accordance with their terms all of the obligations which by the terms of the Loan Documents are required to be performed by it as a Lender.
(h) Notwithstanding anything to the contrary herein, in the event that each Lender under the Existing Credit Agreement consents to this First Amendment, this First Amendment shall be adopted in accordance with Section 10.2 of the Existing Credit Agreement, and Section 2.25 of the Existing Credit Agreement shall not be applicable to this First Amendment or the Borrowers (in the case of all other amounts)transactions contemplated hereby.
Appears in 1 contract
Samples: Credit Agreement (Teradyne, Inc)
Replacement of Non-Consenting Lenders. If, in connection with any proposed amendment, waiver or consent hereunder pursuant to Section 15.2 (ia) requiring the consent of all Lenders, the consent of Required Lenders is obtained but the consent of all Lenders whose consent is required is not obtained or (ii) requiring the consent of Required Lenders, the consent of Lenders holding fifty-one percent (51%) or more of the applicable threshold, is obtained but the consent of Required Lenders is not obtained (If any Lender withholding consent as described in clause (i) and (ii) hereof being referred to as a “Non-Consenting Lender”), then, so long as the Agent is not a Non-Consenting Lender, the Agent Borrower may, :
(i) at the its sole expense of the Borrowersand effort, upon notice to such Non-Consenting Lender and the BorrowersAdministrative Agent, require such Non-Consenting Lender to assign and delegate, without recourse (recourse, in accordance with and subject to the restrictions contained in in, and consents required by, Section 15.5(b))10.07, all of its interests, rights (other than its existing rights to payments pursuant to Section 2.07 or Section 2.08) and obligations under this Agreement and the related Margin Loan Documentation to an Eligible Assignee a Person eligible to take such Loans by assignment pursuant to Section 10.07 (and such Non-Consenting Lender shall be deemed to have consented to the assignment and delegation of its interests, rights and obligations if it does not execute and deliver any such assignment to the Administrative Agent within five (5) Business Days after having received a request therefor); provided that (w) any such assignment pursuant to this clause (i) will not be deemed to be a waiver or release by such Lender of its right to any amount payable under Sections 2.04(c) and 2.07(f), (x) Borrower shall assume have paid to the Administrative Agent the assignment fee (if any), (y) such obligations assignment does not conflict with applicable Law and (which z) the applicable assignee may be another Lendershall have consented to the applicable amendment, if a Lender accepts such assignment)waiver or consent; provided, however, that Borrower (or such Non-Consenting Lender, as applicable) shall offer each Original Lender and/or any of its Permitted Affiliates a right of first refusal to acquire the interests, rights and obligations of such Non-Consenting Lender by assignment ratably in accordance with such Applicable Lender’s Applicable Percentage and if any such Original Lender and/or any of its Permitted Affiliates does not accept such offer within seven (7) Business Days, then it shall be deemed to have waived its right of first refusal; provided further that, if an Original Lender declines such offer, then such declined amounts shall be reoffered to each Original Lender that accepted such initial offer and each such Original Lender shall have received payment of an amount equal respond within three (3) Business Days to the outstanding principal such reoffer; or
(ii) if such Original Lender and/or any of its AdvancesPermitted Affiliates does not accept such offer(s) of first refusal with respect to any assignment of such Non-Consenting Lender’s interests, rights and obligations as set forth in clause (a)(i), terminate and prepay in full such Non-Consenting Lender’s Loans and Commitments, together with accrued and unpaid interest thereon, accrued fees thereon and any amount due under Sections 2.04(c) and 2.07(f) (and all other amounts Obligations that are then due and payable to it hereunder, from the assignee (to the extent or will become due and payable on account of such outstanding principal prepayment); provided that (i) such Non-Consenting Lender is not an Accelerating Lender and accrued interest and fees(ii) such termination will not be deemed to be a waiver or release of any claim that Borrower, the Borrowers Administrative Agent or any other Lender may have against such Non-Consenting Lender.
(in the case b) A Non-Consenting Lender shall not be required to make any such assignment or delegation if, prior thereto, as a result of all other amounts)a waiver by such Lender or otherwise, it ceases to be a Non-Consenting Lender.
Appears in 1 contract
Samples: Margin Loan Agreement (HNA Tourism Group Co., Ltd.)
Replacement of Non-Consenting Lenders. If, in connection with any proposed amendment, waiver or consent hereunder pursuant to Section 15.2 (i) requiring the consent of all Lenders, the consent of Required Lenders is obtained but the consent of all Lenders whose consent is required is not obtained or (ii) requiring the consent of Required Lenders, the consent of Lenders holding fifty-one percent (51%) or more of the applicable threshold, is obtained but the consent of Required Lenders is not obtained (If any Lender withholding consent as described in clause (i) and (ii) hereof being referred to as a “Non-Consenting Lender”), then, so long as the Agent is not a Non-Consenting Lender, then the Agent Borrower may, at the its sole expense of the Borrowersand effort, upon notice to such Non-Consenting Lender and the BorrowersAdministrative Agent, require such Non-Consenting Lender to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in in, and consents required by, Section 15.5(b)13.5, other than the consent of any Lender being so replaced), all of its interests, rights (other than its existing rights to payments pursuant to Sections 3.10 and 5.1) and obligations under this Agreement and the other Loan Documents to an Eligible Assignee that shall assume such obligations (which assignee may be another Lender, if a Lender accepts such assignment), provided that (i) the Borrower shall have paid to the Administrative Agent the assignment fee specified in Section 13.5(b)(iv); provided, however, that (ii) such Lender shall have received payment of an amount equal to 100% of the outstanding principal of its AdvancesLoans, accrued interest thereon, accrued fees and all other amounts payable to it hereunder, hereunder and under the other Loan Documents (including any amounts under Section 5.4) from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Borrowers Borrower (in the case of all other amounts); (iii) such assignment does not conflict with Applicable Laws; and (iv) the applicable assignee shall have consented to the applicable amendment, waiver or consent. A Lender shall not be required to make any such assignment or delegation if, prior thereto, as a result of a waiver by such Lender or otherwise, the circumstances entitling the Borrower to require such assignment and delegation cease to apply. Each Lender agrees that, if the Borrower elects to replace such Lender in accordance with this clause (d), it shall promptly execute and deliver to the Administrative Agent an Assignment and Assumption to evidence the assignment and shall deliver to the Administrative Agent any Term Note (if a Term Note has been issued in respect of such Lender’s Loans) subject to such Assignment and Assumption; provided that the failure of any such Lender to execute an Assignment and Assumption shall not render such assignment invalid and such assignment shall be recorded in the Register.
Appears in 1 contract
Samples: Credit Agreement (VEREIT Operating Partnership, L.P.)
Replacement of Non-Consenting Lenders. If, in connection with any proposed amendment, waiver or consent hereunder pursuant to Section 15.2 (ia) requiring the consent of all Lenders, the consent of Required Lenders is obtained but the consent of all Lenders whose consent is required is not obtained or (ii) requiring the consent of Required Lenders, the consent of Lenders holding fifty-one percent (51%) or more of the applicable threshold, is obtained but the consent of Required Lenders is not obtained (If any Lender withholding consent as described in clause (i) and (ii) hereof being referred to as a “Non-Consenting Lender”), then, so long as the Agent is not a Non-Consenting Lender, then the Agent Company may, at the its sole expense of the Borrowersand effort, upon notice to such Non-Consenting Lender and the BorrowersFacility Agent, require such Non-Consenting Lender to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in Section 15.5(bin, and consents required by Clause 41 (Changes to the Parties)), all of its interests, rights and obligations under this Agreement the Finance Documents to an Eligible Assignee any person that shall assume such obligations (which assignee may be another Lender, if a Lender accepts such assignment); provided, however, that provided that:
(i) no Default is outstanding at the time of the assignment or delegation or would be outstanding as a result of it;
(ii) such Lender shall have received payment of an amount equal to the outstanding principal of its AdvancesLoans, accrued interest thereon, accrued fees and all other amounts payable to it hereunder, under the Finance Documents from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Borrowers Company (in the case of all other amounts);
(iii) such assignment does not conflict with applicable law; and
(iv) the applicable assignee shall have consented to the applicable amendment, waiver or consent which resulted in that Lender becoming a Non-Consenting Lender.
(b) A Lender shall not be required to make any such assignment if, prior thereto, as a result of a waiver by such Lender or otherwise, the circumstances entitling the Company to require such assignment and delegation cease to apply.
(c) Each Non-Consenting Lender shall be entitled to the continuing benefit of the indemnities provided to the Non-Consenting Lender under Clause 38 (Indemnities and Break Costs) in respect of any action or omission which occurred, or which is alleged to have occurred, during the period in which they were a Lender (unless the Non-Consenting Lender has already been indemnified by an Obligor under a Finance Document for that action or omission).
Appears in 1 contract
Samples: Second Supplemental Agreement (MGM Resorts International)
Replacement of Non-Consenting Lenders. If, in connection with any proposed amendment, waiver or consent hereunder pursuant to Section 15.2 (ia) requiring the consent of all Lenders, the consent of Required Lenders is obtained but the consent of all Lenders whose consent is required is not obtained or (ii) requiring the consent of Required Lenders, the consent of Lenders holding fifty-one percent (51%) or more of the applicable threshold, is obtained but the consent of Required Lenders is not obtained (If any Lender withholding consent as described in clause (i) and (ii) hereof being referred to as a “Non-Consenting Lender”), then, so long as the Agent is not a Non-Consenting Lender, then the Agent Company may, at the its sole expense of the Borrowersand effort, upon notice to such Non-Consenting Lender and the BorrowersFacility Agent, require such Non-Consenting Lender to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in Section 15.5(bin, and consents required by Clause 26 (Changes to the Parties)), all of its interests, rights and obligations under this Agreement the Finance Documents to an Eligible Assignee any person that shall assume such obligations (which assignee may be another Lender, if a Lender accepts such assignment); provided, however, that provided that:
(i) no Default is outstanding at the time of the assignment or delegation or would be outstanding as a result of it;
(ii) such Lender shall have received payment of an amount equal to the outstanding principal of its AdvancesLoans, accrued interest thereon, accrued fees and all other amounts payable to it hereunder, under the Finance Documents from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Borrowers Company (in the case of all other amounts);
(iii) such assignment does not conflict with applicable law; and
(iv) the applicable assignee shall have consented to the applicable amendment, waiver or consent which resulted in that Lender becoming a Non-Consenting Lender.
(b) A Lender shall not be required to make any such assignment if, prior thereto, as a result of a waiver by such Lender or otherwise, the circumstances entitling the Company to require such assignment and delegation cease to apply.
(c) Each Non-Consenting Lender shall be entitled to the continuing benefit of the indemnities provided to the Non-Consenting Lender under Clause 23 (Indemnities and Break Costs) in respect of any action or omission which occurred, or which is alleged to have occurred, during the period in which they were a Lender (unless the Non-Consenting Lender has already been indemnified by the Company under a Finance Document for that action or omission).
(d) Where a Lender is a Non-Consenting Lender and has made or is required to make an assignment and/or delegation under this Subclause, and that Non-Consenting Lender (or any of its Affiliates) is also a Finance Party in another capacity or capacities, that Non-Consenting Lender (or that Affiliate) acting in each such capacity (the outgoing Finance Party) shall, on the date on which it makes the assignment and/or delegation under this Subclause in its capacity as a Lender, be considered for the purposes of this Agreement to have resigned from each of its other capacities as a Finance Party and such resignation by the outgoing Finance Party in each of its other capacities shall be deemed to have become effective on the date on which:
(i) arrangements satisfactory to the outgoing Finance Party have been put in place to ensure that no amounts which are or may be owed to it in each such capacity will remain outstanding after that date and that indemnities reasonably acceptable to that outgoing Finance Party for any further loss or liability which it might incur for having acted in each such capacity have been provided;
(ii) the Company has designated another Lender (or Affiliate of a Lender) as replacement for the outgoing Finance Party in each relevant capacity under the Finance Documents; and
(iii) the outgoing Finance Party has assigned all of its interests, rights and obligations in each relevant capacity to that replacement Lender (or Affiliate of a Lender) designated by the Company under subparagraph (d)(ii) above.
Appears in 1 contract
Samples: Revolving Credit Facility Agreement (MGM Resorts International)
Replacement of Non-Consenting Lenders. If, in connection with any proposed amendment, waiver or consent hereunder pursuant to Section 15.2 (i) requiring the consent of all Lenders, the consent of Required Lenders is obtained but the consent of all Lenders whose consent is required is not obtained or (ii) requiring the consent of Required Lenders, the consent of Lenders holding fifty-one percent (51%) or more of the applicable threshold, is obtained but the consent of Required Lenders is not obtained (If any Lender withholding consent as described in clause (i) and (ii) hereof being referred to as such Lender, a “Non-Consenting Lender”)) has failed to consent to a proposed amendment, thenwaiver, so long as discharge or termination which pursuant to the Agent is not a terms of Section 10.08 requires the consent of all of the Lenders affected and with respect to which the Super-required Lenders shall have granted their consent, then the Borrowers shall have the right (unless such Non-Consenting LenderLender grants such consent) at their sole expense (including with respect to the processing and recordation fee referred to in Section 10.04(b)(ii)(B)), to replace such Non-Consenting Lender by requiring such Non-Consenting Lender to (and any such Non-Consenting Lender agrees that it shall, upon the Agent mayBorrower Representative’s request) assign its Loans and its Commitments (or, at the sole expense Borrower Representative’s option, the Loans and Commitments under the Facility that is the subject of the proposed amendment, waiver, discharge or termination) hereunder to one or more assignees reasonably acceptable to (i) the Administrative Agent (unless, in the case of an assignment of Term Loans, such assignee is a Lender, an Affiliate of a Lender or an Approved Fund) and (ii) if in respect of any Revolving Facility Commitment or Revolving Facility Loan, the Issuing Bank; provided that: (a) all Obligations of the Borrowers owing to such Non-Consenting Lender being replaced shall be paid in full to such Non-Consenting Lender by the assignee or the Borrowers, upon notice as applicable, concurrently with such assignment, (b) the replacement Lender shall purchase the foregoing by paying to such Non-Consenting Lender a price equal to the principal amount thereof plus accrued and unpaid interest thereon and (c) the replacement Lender shall grant its consent with respect to the applicable proposed amendment, waiver, discharge or termination. In connection with any such assignment the Borrowers, Administrative Agent, such Non-Consenting Lender and the Borrowersreplacement Lender shall otherwise comply with Section 10.04. Each Lender hereby grants to the Administrative Agent an irrevocable power of attorney (which power is coupled with an interest) to execute and deliver, require on behalf of such Non-Consenting Lender as assignor, any Assignment and Acceptance necessary to assign effectuate any assignment of such Lender’s interest hereunder in the circumstance contemplated by this Section 2.18(c) and delegate, without recourse (the Administrative Agent agrees to effectuate such assignment within three Business Days after the Borrower Representative’s request so long as the other conditions for such assignment set forth in accordance with the restrictions contained this Section 2.18 and in Section 15.5(b)), all of its interests, rights and obligations under this Agreement to an Eligible Assignee that shall assume such obligations (which assignee may be another Lender, if a Lender accepts such assignment); provided, however, that such Lender shall 10.04 have received payment of an amount equal to the outstanding principal of its Advances, accrued interest thereon, accrued fees and all other amounts payable to it hereunder, from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Borrowers (in the case of all other amounts)been satisfied.
Appears in 1 contract
Samples: Credit Agreement (Mariner, LLC)
Replacement of Non-Consenting Lenders. IfNotwithstanding anything to the contrary provided in Section 9.6, in connection with any proposed amendment, waiver or consent hereunder pursuant to Section 15.2 (i) requiring the consent of all Lenders, the consent of Required Lenders is obtained but the consent of all Lenders whose consent is required is not obtained or (ii) requiring the consent of Required Lenders, the consent of Lenders holding fifty-one percent (51%) or more of the applicable threshold, is obtained but the consent of Required Lenders is not obtained (if any Lender withholding consent as described in clause (i) and (ii) hereof being referred to as such Lender, a “Non-Consenting Lender”)) has failed to consent to a proposed amendment, thenwaiver, so long as discharge or termination which pursuant to the Agent is not a terms of Section 9.1 requires the consent of all of the Lenders or all of the Lenders affected and with respect to which the Required Lenders shall have granted their consent, then the Borrower shall have the right (unless such Non-Consenting Lender grants such consent) to replace such Non-Consenting Lender by deeming such Non-Consenting Lender to have assigned its Loans hereunder to one or more assignees reasonably acceptable to the Administrative Agent (unless such assignee is a Lender, the Agent mayan Affiliate of a Lender or an Approved Fund); provided, at the sole expense that: (i) all Obligations of the BorrowersBorrower owing to such Non-Consenting Lender being replaced shall be paid in full to such Non-Consenting Lender concurrently with such assignment and (ii) the replacement Lender shall purchase the foregoing by paying to such Non-Consenting Lender a price equal to the principal amount thereof plus accrued and unpaid interest thereon. No action by or consent of the Non-Consenting Lender shall be necessary in connection with such assignment, which shall be immediately and automatically effective upon notice to payment of such purchase price. In connection with any such assignment, the Borrower, Administrative Agent, such Non-Consenting Lender and the Borrowersreplacement Lender shall otherwise comply with Section 9.6; provided, require that if such Non-Consenting Lender does not comply with Section 9.6 within three (3) Business Days after Borrower’s request, compliance with Section 9.6 shall not be required to assign and delegate, without recourse (in accordance with the restrictions contained in Section 15.5(b)), all of its interests, rights and obligations under this Agreement to an Eligible Assignee that shall assume such obligations (which assignee may be another Lender, if a Lender accepts effect such assignment); provided, however, that such Lender shall have received payment of an amount equal to the outstanding principal of its Advances, accrued interest thereon, accrued fees and all other amounts payable to it hereunder, from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Borrowers (in the case of all other amounts).
Appears in 1 contract
Replacement of Non-Consenting Lenders. If, in connection with any proposed amendment, waiver or consent hereunder pursuant to Section 15.2 (ia) requiring the consent of all Lenders, the consent of Required Lenders is obtained but the consent of all Lenders whose consent is required is not obtained or (ii) requiring the consent of Required Lenders, the consent of Lenders holding fifty-one percent (51%) or more of the applicable threshold, is obtained but the consent of Required Lenders is not obtained (If any Lender withholding consent as described in clause (i) and (ii) hereof being referred to as a “Non-Consenting Lender”), then, so long as the Agent is not a Non-Consenting Lender, then the Agent Company may, at the its sole expense of the Borrowersand effort, upon notice to such Non-Consenting Lender and the BorrowersFacility Agent, require such Non-Consenting Lender to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in Section 15.5(bin, and consents required by Clause 26 (Changes to the Parties)), all of its interests, rights and obligations under this Agreement the Finance Documents to an Eligible Assignee any person that shall assume such obligations (which assignee may be another Lender, if a Lender accepts such assignment); provided, however, that provided that:
(i) no Default is outstanding at the time of the assignment or delegation or would be outstanding as a result of it;
(ii) such Lender shall have received payment of an amount equal to its participation in the outstanding principal of its Advancesthe Loans, accrued interest thereon, accrued fees and all other amounts payable to it hereunder, under the Finance Documents from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Borrowers Company (in the case of all other amounts);
(iii) such assignment does not conflict with applicable law; and
(iv) the applicable assignee shall have consented to the applicable amendment, waiver or consent which resulted in that Lender becoming a Non-Consenting Lender.
(b) A Lender shall not be required to make any such assignment if, prior thereto, as a result of a waiver by such Lender or otherwise, the circumstances entitling the Company to require such assignment and delegation cease to apply.
(c) Each Non-Consenting Lender shall be entitled to the continuing benefit of the indemnities provided to the Non-Consenting Lender under Clause 23 (Indemnities and Break Costs) in respect of any action or omission which occurred, or which is alleged to have occurred, during the period in which they were a Lender (unless the Non-Consenting Lender has already been indemnified by the Company under a Finance Document for that action or omission).
(d) Where a Lender is a Non-Consenting Lender and has made or is required to make an assignment and/or delegation under this Subclause, and that Non-Consenting Lender (or any of its Affiliates) is also a Finance Party in another capacity or capacities, that Non-Consenting Lender (or that Affiliate) acting in each such capacity (the outgoing Finance Party) shall, on the date on which it makes the assignment and/or delegation under this Subclause in its capacity as a Lender, be considered for the purposes of this Agreement to have resigned from each of its other capacities as a Finance Party and such resignation by the outgoing Finance Party in each of its other capacities shall be deemed to have become effective on the date on which:
(i) arrangements satisfactory to the outgoing Finance Party have been put in place to ensure that no amounts which are or may be owed to it in each such capacity will remain outstanding after that date and that indemnities reasonably acceptable to that outgoing Finance Party for any further loss or liability which it might incur for having acted in each such capacity have been provided;
(ii) the Company has designated another Lender (or Affiliate of a Lender) as replacement for the outgoing Finance Party in each relevant capacity under the Finance Documents; and
(iii) the outgoing Finance Party has assigned all of its interests, rights and obligations in each relevant capacity to that replacement Lender (or Affiliate of a Lender) designated by the Company under subparagraph (d)(ii) above.
Appears in 1 contract
Samples: Revolving Credit Facility Agreement (MGM Resorts International)
Replacement of Non-Consenting Lenders. If, in connection with any proposed amendment, modification or waiver or consent hereunder pursuant to any of the provisions of this Agreement as contemplated by clauses (a) through (g), inclusive, of the first proviso to Section 15.2 (i) requiring the consent of all Lenders10.1.1, the consent of the Required Lenders is obtained but the consent of all one or more of such other Lenders whose consent is required is not obtained or (ii) requiring obtained, then the consent of Required Lenders, Borrower shall have the consent of Lenders holding fifty-one percent (51%) or more of the applicable threshold, is obtained but the consent of Required Lenders is not obtained (any Lender withholding consent as described in clause (i) and (ii) hereof being referred to as a “Non-Consenting Lender”), thenright, so long as the Agent all non-consenting Lenders whose individual consent is not a Nonrequired are treated as described in either clauses (A) or (B) below, to either (A) replace each such non-Consenting Lender, the Agent mayconsenting Lender or Lenders (or, at the sole expense option of the BorrowersBorrower if the respective Lender's consent is required with respect to less than all Loans, upon notice to replace only the respective Loans of the respective non-consenting Lender which gave rise to the need to obtain such Non-Lender's individual consent) with one or more financial institutions or other Persons (each a "Consenting Lender") pursuant to this Section 10.1.2 so long as at the time of such replacement, each such Consenting Lender consents to the proposed amendment, modification, or waiver or (B) terminate such non-consenting Lender's Revolving Loan Commitment and repay all outstanding Loans of such Lender which gave rise to the Borrowersneed to obtain such Lender's consent, require such Non-Consenting Lender to assign and delegate, without recourse (in accordance with Section 2.2.1(b) and/or 3.1.1(h); provided that, unless the restrictions contained Revolving Loan Commitment terminated and Loans repaid pursuant to the preceding clause (B) are immediately replaced in Section 15.5(b)full at such time through the addition of new Lenders or the increase of the Commitments and/or outstanding Loans of existing Lenders (who in each case must specifically consent thereto), all of its interests, rights and obligations under this Agreement to an Eligible Assignee that shall assume such obligations (which assignee may be another Lender, if a Lender accepts such assignment); provided, however, that such Lender shall have received payment of an amount equal to the outstanding principal of its Advances, accrued interest thereon, accrued fees and all other amounts payable to it hereunder, from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Borrowers (then in the case of all other amounts)any action pursuant to preceding clause (B) the Required Lenders (determined before giving effect to the proposed action) shall specifically consent thereto, provided, further, that in any event Borrower shall not have the right to replace a Lender, terminate its Revolving Loan Commitment or repay its Loans solely as a result of the exercise of such Lender's rights (and the withholding of any required consent by such Lender) contemplated by the first proviso to this Section 10.1.
Appears in 1 contract
Samples: Credit Agreement (Global Power Equipment Group Inc/)
Replacement of Non-Consenting Lenders. If, in connection with any proposed amendment, waiver or consent hereunder pursuant to Section 15.2 (i) requiring the consent of all Lenders, the consent of Required Lenders is obtained but the consent of all Lenders whose consent is required is not obtained or (ii) requiring the consent of Required Lenders, the consent of Lenders holding fifty-one percent (51%) or more of the applicable threshold, is obtained but the consent of Required Lenders is not obtained (If any Lender withholding consent as described in clause (i) and (ii) hereof being referred to as a “Non-Consenting Lender”), then, so long as the Agent is not a Non-Consenting Lender, then the Agent Borrower may, at the its sole expense of the Borrowersand effort, upon notice to such Non-Consenting Lender and the BorrowersAdministrative Agent, require such Non-Consenting Lender to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in in, and consents required by, Section 15.5(b)13.5, other than the consent of any Lender being so replaced), all of its interests, rights (other than its existing rights to payments pursuant to Sections 3.10 and 5.1) and obligations under this Agreement and the other Loan Documents to an Eligible Assignee that shall assume such obligations (which assignee may be another Lender, if a Lender accepts such assignment), provided that (i) the Borrower shall have paid to the Administrative Agent the assignment fee specified in Section 13.5(b)(iv); provided, however, that (ii) such Lender shall have received payment of an amount equal to 100% of the outstanding principal of its AdvancesLoans and L/C Disbursements, accrued interest thereon, accrued fees and all other amounts payable to it hereunder, hereunder and under the other Loan Documents (including any amounts under Section 5.4) from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Borrowers Borrower (in the case of all other amounts); (iii) such assignment does not conflict with Applicable Laws; and (iv) the applicable assignee shall have consented to the applicable amendment, waiver or consent. A Lender shall not be required to make any such assignment or delegation if, prior thereto, as a result of a waiver by such Lender or otherwise, the circumstances entitling the Borrower to require such assignment and delegation cease to apply. Each Lender agrees that, if the Borrower elects to replace such Lender in accordance with this clause (d), it shall promptly execute and deliver to the Administrative Agent an Assignment and Assumption to evidence the assignment and shall deliver to the Administrative Agent any Note (if a Note has been issued in respect of such Lender’s Loans) subject to such Assignment and Assumption; provided that the failure of any such Lender to execute an Assignment and Assumption shall not render such assignment invalid and such assignment shall be recorded in the Register.
Appears in 1 contract
Samples: Credit Agreement (American Realty Capital Properties, Inc.)
Replacement of Non-Consenting Lenders. If, in connection with any proposed amendment, waiver or consent hereunder pursuant to Section 15.2 (i) requiring the consent of all Lenders, the consent of Required Lenders is obtained but the consent of all Lenders whose consent is required is not obtained or (ii) requiring the consent of Required Lenders, the consent of Lenders holding fifty-one percent (51%) or more of the applicable threshold, is obtained but the consent of Required Lenders is not obtained (If any Lender withholding consent as described in clause (i) and (ii) hereof being referred to as a “Non-Consenting Lender”) refuses to give timely consent to an amendment, modification or waiver of this Agreement that, pursuant to Section 10.5, requires consent of 100% of Lenders or 100% of Lenders with Obligations directly affected (and the consent of Requisite Lenders has been given with respect thereto), then, so long as the Agent is not Borrower has obtained a commitment from another Lender or an Eligible Assignee to purchase at par the Non-Consenting Lender, ’s Loans and assume the Agent may, at the sole expense Non-Consenting Lender’s Commitments (if any) and all other obligations of the Borrowers, upon notice to such Non-Consenting Lender and hereunder, the Borrowers, Borrower may require such the Non-Consenting Lender to assign and delegate, without recourse (in accordance with the restrictions contained in Section 15.5(b)), all of its interestsLoans and Commitments (if any) to such other Lender, rights and obligations under this Agreement to an Lenders, Eligible Assignee that shall assume or Eligible Assignees pursuant to the provisions of this Section 10.6; provided that, prior to or concurrently with such obligations replacement (which assignee may be another Lender, if a Lender accepts such assignment); provided, however, that such i) the Non-Consenting Lender shall have received payment in full of an amount equal all Obligations then due and owing to it through such date of replacement (including any Applicable Premium then due and owing to such lender in connection with the payment of the outstanding principal amount of the Loan then due and owing to such Lender) and a release from its Advancesobligations under the Credit Documents, accrued interest thereon(ii) all of the requirements for such assignment contained in this Section 10.6, accrued fees have been fulfilled; and all other amounts payable to it hereunder(iii) each assignee shall consent, from at the assignee (to the extent time of such assignment, to each matter in respect of which such Non-Consenting Lender would not consent to prior to such assignment. For the avoidance of doubt, no Lender or any other Person shall be deemed to have made any commitment to assume any outstanding principal and accrued interest and fees) Loans or the Borrowers (in the case Commitments of all other amounts)any Non-Consenting Lender.
Appears in 1 contract
Samples: Credit and Guaranty Agreement (Kv Pharmaceutical Co /De/)
Replacement of Non-Consenting Lenders. If, in connection with any proposed amendment, waiver or consent hereunder pursuant to Section 15.2 (ia) requiring On and as of the consent of all LendersSecond Amendment Effective Date, the consent of Required Revolving Facility shall be allocated among the Lenders is obtained but under the consent of all Amended Credit Agreement, including Replacement Lenders whose consent is required is not obtained or (ii) requiring the consent of Required Lenderscollectively, the consent of Lenders holding fifty-one percent (51%) or more of “Continuing Lenders”), such that immediately after giving effect to this Second Amendment on the applicable thresholdSecond Amendment Effective Date, is obtained but each Continuing Lender shall hold Revolving Commitments and Revolving Loans in the consent of Required Lenders is not obtained (any Lender withholding consent amounts set forth opposite such Person’s name on Schedule II to the Amended Credit Agreement, all as described in clause (i) and (ii) hereof being referred previously disclosed to as a “the Non-Consenting Lender”), then, so long as Lenders and the Agent is not a Non-Consenting LenderContinuing Lenders by the Administrative Agent.
(b) In addition, the Agent mayBorrower hereby requires, at the sole expense pursuant to (and in accordance with) Section 2.25 of the BorrowersExisting Credit Agreement, upon notice to such that each Non-Consenting Lender assign its Revolving Commitments and the BorrowersRevolving Loans, require such Non-Consenting Lender to assign and delegate, without recourse (in accordance with the restrictions contained in Section 15.5(b)), all of its interests, rights and obligations with respect thereto, under the Existing Credit Agreement and the related Loan Documents as of the Second Amendment Effective Date (each, a “Non-Consenting Lender Assigned Interest”), to Replacement Lenders as set forth herein. Each of the Administrative Agent, the Issuing Bank and the Swingline Lender, by its signature to this Second Amendment, hereby consents to the assignment of each of the Non-Consenting Lender Assigned Interests pursuant to this Section 2. This Second Amendment constitutes any notice to the Administrative Agent and/or each Non-Consenting Lender that is required pursuant to Section 2.25 of the Existing Credit Agreement.
(c) As a result of the foregoing, a Continuing Lender’s Pro Rata Share of the Aggregate Revolving Commitments under the Amended Credit Agreement to an Eligible Assignee that shall assume such obligations (which assignee may be another (i) greater than such Continuing Lender’s Pro Rata Share of the Aggregate Revolving Commitments under the Existing Credit Agreement (each such Continuing Lender, if an “Increasing Lender”) or (ii) less than such Continuing Lender’s Pro Rata Share of the Aggregate Revolving Commitments under the Existing Credit Agreement (each such Continuing Lender, a Lender accepts such assignment“Decreasing Lender”); provided.
(d) To effect the foregoing, howeveron and as of the Second Amendment Effective Date, that such (i) each Non-Consenting Lender shall be deemed to have assigned its Non-Consenting Lender Assigned Interest and (ii) each Consenting Lender shall be deemed to have assigned its Revolving Commitments and Revolving Loans, and all or any portion of its interests, rights and obligations with respect thereto, under the Existing Credit Agreement and the related Loan Documents as of the Second Amendment Effective Date (each, a “Consenting Lender Assigned Interest” and, together with the Non-Consenting Lender Assigned Interests, collectively, the “Assigned Interests”), in each case for a purchase price at par (the “Purchase Price”), to Continuing Lenders in such amounts as required by the Administrative Agent in order that, after giving effect to all such assignments pursuant to this Section 2, (i) each Continuing Lender shall hold Revolving Commitments and Revolving Loans in the amounts set forth opposite such Person’s name on Schedule II to the Amended Credit Agreement, and (ii) each Non-Consenting Lender shall hold no Revolving Commitments and no Revolving Loans.
(e) On the Second Amendment Effective Date:
(i) To the extent Revolving Loans are outstanding on the Second Amendment Effective Date, each Increasing Lender shall remit to the Administrative Agent, in the manner contemplated by Section 2.6 of the Amended Credit Agreement, such amount as may be necessary for such Increasing Lender to hold Revolving Loans in the amounts set forth opposite such Person’s name on Schedule II to the Amended Credit Agreement, which amounts shall, in turn, be used by the Administrative Agent to remit to each Decreasing Lender such amount as may be necessary for such Decreasing Lender to hold Revolving Loans in the amounts set forth opposite such Person’s name on Schedule II to the Amended Credit Agreement.
(ii) The Administrative Agent shall remit (A) to each Consenting Lender and to each Non-Consenting Lender (with amounts received payment from the Borrower pursuant to Section 3(h) of this Second Amendment) such Person’s pro rata share of all unpaid interest, commitment fees, Letter of Credit participation fees and other amounts (including any breakage costs) in respect of the Revolving Loans and Revolving Commitments of the Lenders under the Existing Credit Agreement, in each case that have accrued to but excluding the Second Amendment Effective Date and (B) to each Non-Consenting Lender an amount equal to the outstanding principal Purchase Price (net of amounts paid pursuant to clause (A) above) with respect to its AdvancesNon-Consenting Lender Assigned Interest, accrued interest thereonwhereupon such Non-Consenting Lender shall cease to be a party to the Amended Credit Agreement.
(f) The Administrative Agent hereby waives each processing and recordation fee that would otherwise be due pursuant to Section 10.4 of the Existing Credit Agreement in connection with the assignments contemplated by this Section 2. Further, accrued fees it is hereby agreed that this Second Amendment shall be deemed to be an Assignment and Acceptance with respect to the assignments contemplated by this Section 2.
(g) Each Replacement Lender, if any, that initially becomes a party to the Amended Credit Agreement on the Second Amendment Effective Date hereby (i) represents and warrants that (A) it has full power and authority, and has taken all other amounts payable action necessary, to execute and deliver this Second Amendment and to consummate the transactions contemplated hereby and to become a Lender under the Amended Credit Agreement, (B) on and as of the Second Amendment Effective Date, it hereundershall be bound by the provisions of the Amended Credit Agreement as a Lender thereunder and, from the assignee (to the extent of its Revolving Commitment (or Revolving Loans) and all other related rights and obligations under the Amended Credit Agreement, shall have the obligations of a Lender thereunder, (C) it has received a copy of the Existing Credit Agreement, and has received or has been accorded the opportunity to receive copies of the most recent financial statements delivered pursuant to Section 5.1 thereof, as applicable, and such outstanding principal other documents and accrued interest information as it deems appropriate to make its own credit analysis and feesdecision to enter into this Second Amendment and become a Lender under the Amended Credit Agreement, and (D) it has, independently and without reliance upon the Administrative Agent or any existing Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Second Amendment and become a Lender under the Amended Credit Agreement; and (ii) agrees that (A) it will, independently and without reliance on 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 the Loan Documents and (B) it will perform in accordance with their terms all of the obligations which by the terms of the Loan Documents are required to be performed by it as a Lender.
(h) Notwithstanding anything to the contrary herein, in the event that each Lender under the Existing Credit Agreement consents to this Second Amendment, this Second Amendment shall be adopted in accordance with Section 10.2 of the Existing Credit Agreement, and Section 2.25 of the Existing Credit Agreement shall not be applicable to this Second Amendment or the Borrowers (in the case of all other amounts)transactions contemplated hereby.
Appears in 1 contract
Samples: Credit Agreement (Teradyne, Inc)
Replacement of Non-Consenting Lenders. If, in connection with any proposed amendment, waiver or consent hereunder pursuant to Section 15.2 (ia) requiring the consent of all Lenders, the consent of Required Lenders is obtained but the consent of all Lenders whose consent is required is not obtained or (ii) requiring the consent of Required Lenders, the consent of Lenders holding fifty-one percent (51%) or more of the applicable threshold, is obtained but the consent of Required Lenders is not obtained (If any Lender withholding consent as described in clause (i) and (ii) hereof being referred to as a “Non-Consenting Lender”), then, so long as the Agent is not a Non-Consenting Lender, the Agent Borrower may, :
(i) at the its sole expense of the Borrowersand effort, upon notice to such Non-Consenting Lender and the BorrowersAdministrative Agent, require such Non-Consenting Lender to assign and delegate, without recourse (recourse, in accordance with and subject to the restrictions contained in in, and consents required by, Section 15.5(b))9.07, all of its interests, rights (other than its existing rights to payments pursuant to Section 2.07 or Section 2.08) and obligations under this Agreement and the related Margin Loan Documentation to an Eligible Assignee a Person eligible to take such Loans by assignment pursuant to Section 9.07 (and such Non-Consenting Lender shall be deemed to have consented to the assignment and delegation of its interests, rights and obligations if it does not execute and deliver any such assignment to the Administrative Agent within five (5) Business Days after having received a request therefor); provided that (w) any such assignment pursuant to this clause (i) will not be deemed to be a waiver or release by such Lender of its right to any amount payable under Sections 2.04(a) and 2.07(f), (x) Borrower shall assume have paid to the Administrative Agent the assignment fee (if any), (y) such obligations assignment does not conflict with applicable Law and (which z) the applicable assignee may be another Lendershall have consented to the applicable amendment, if a Lender accepts such assignment)waiver or consent; provided, however, that Borrower (or such Non-Consenting Lender, as applicable) shall offer the Original Lender shall have received payment of an amount equal to the outstanding principal and/or any of its AdvancesPermitted Affiliates a right of first refusal to acquire the interests, rights and obligations of such Non-Consenting Lender by assignment ratably in accordance with such Applicable Lender’s Applicable Percentage and if the Original Lender and/or any of its Permitted Affiliates does not accept such offer within seven (7) Business Days, then it shall be deemed to have waived its right of first refusal; provided further that, if the Original Lender is the sole Lender and constitutes the Non-Consenting Lender, any such assignment pursuant to this clause (i) shall be deemed to be a prepayment by Borrower of the Non-Consenting Lender’s Advances for purposes of Section 2.04(a); or
(ii) if the Original Lender and/or any of its Permitted Affiliates does not accept such offer(s) of first refusal with respect to any assignment of such Non-Consenting Lender’s interests, rights and obligations as set forth in clause (a)(i), terminate and prepay in full such Non-Consenting Lender’s Loans and Commitments, together with accrued and unpaid interest thereon, accrued fees thereon and any amount due under Sections 2.04(a) and 2.07(f) (and all other amounts Obligations that are then due and payable to it hereunder, from the assignee (to the extent or will become due and payable on account of such outstanding principal prepayment); provided that (i) such Non-Consenting Lender is not an Accelerating Lender and accrued interest and fees(ii) such termination will not be deemed to be a waiver or release of any claim that Borrower, the Borrowers Administrative Agent or any other Lender may have against such Non-Consenting Lender.
(in the case b) A Non-Consenting Lender shall not be required to make any such assignment or delegation if, prior thereto, as a result of all other amounts)a waiver by such Lender or otherwise, it ceases to be a Non-Consenting Lender.
Appears in 1 contract
Replacement of Non-Consenting Lenders. If, in connection with any proposed amendment, waiver or consent hereunder pursuant to Section 15.2 13.1 hereof: (i) requiring the consent of all Lenders, the consent of Required Lenders is obtained but the consent of all Lenders whose consent is if required is not obtained or (ii) requiring the consent of Required Lenders, the consent of Lenders holding fifty-one percent (51%) % or more of the applicable threshold, is obtained but the consent of Required Lenders is not obtained (any Lender withholding consent as described in clause (i) and (ii) hereof being referred to as a “Non-Consenting Lender”), then, so long as the Administrative Agent is not a Non-Consenting Lender, the Administrative Agent may, at the sole expense of the such Borrowers, upon notice to such Non-Consenting Lender and the BorrowersBorrower Representative, require such Non-Consenting Lender to assign and delegate, without recourse (in accordance with the restrictions contained in Section 15.5(b)10.2), all of its interests, rights and obligations under this Agreement to an Eligible Assignee that shall assume such obligations (which assignee may be another Lender, if a Lender accepts such assignment); provided, however, provided that such Lender shall have received payment of an amount equal to the outstanding principal of its AdvancesRevolving Credit Loans, accrued interest thereon, accrued fees and all other amounts payable to it hereunder, from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Borrowers (in the case of all other amounts).
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Samples: Credit Agreement (Unova Inc)
