Successors and Assigns; Assignments and Participations. (a) This Agreement shall be binding upon, and inure to the benefit of the parties hereto and their respective successors and assigns, except that (i) Borrower may not, directly or indirectly, assign or transfer, or attempt to assign or transfer, any of its Rights, duties, or obligations under any Loan Documents without the express written consent of all Lenders, and (ii) except as permitted NBPLP CREDIT AGREEMENT under this Section, no Lender may transfer, pledge, assign, sell any participation in, or otherwise encumber its portion of the Obligation. (b) Each Lender may assign to one or more Eligible Assignees all or a portion of its Rights and obligations under the Loan Documents (including, without limitation, all or a portion of its Borrowings and its Notes to the extent any Principal Debt owed to such assigning Lender is evidenced by a Note or Notes); provided, however, that: (i) each such assignment shall be to an Eligible Assignee; (ii) except in the case of an assignment to another Lender or in the case of an assignment of all of a Lender's Rights and obligations under the Loan Documents, any such partial assignment under the Facility shall not be less than $5,000,000 unless Borrower and Administrative Agent consent thereto (in their sole discretion) in writing which may be evidenced by their acceptance and execution of the related Assignment and Acceptance Agreement; provided that, no partial assignment for the Facility (including any assignment among Lenders) may result in any Lender holding less than $10,000,000, provided further that, a Lender may hold an amount less than $10,000,000 but greater than $5,000,000 only if such Lender shall hold at least $10,000,000 in the aggregate of this Facility and the Multi- Year Revolving Agreement (notwithstanding the foregoing, in the event the Multi-Year Revolving Agreement is terminated, any Lender may continue to hold an amount in this Facility greater than or equal to the amount such Lender held on the date of the termination of the Multi-Year Revolving Agreement); (iii) the parties to such assignment shall execute and deliver to Administrative Agent for its acceptance an Assignment and Acceptance Agreement in the form of EXHIBIT E hereto, together with any Notes (to the extent any Principal Debt owed to such assigning Lender is evidenced by a Note or Notes) subject to such assignment and a processing fee of $3,500, including, without limitation, any assignment between Lenders; and (iv) so long as any Lender is an Agent under this Agreement, such Lender (or an Affiliate of such Lender) shall retain an economic interest in the Loan Documents, will not assign all of its Rights, duties, or obligations under the Loan Documents, except to an Affiliate of such Lender, and will not enter into any Assignment and Acceptance Agreement that would have the effect of such Lender assigning all of its Rights, duties, or obligations under the Loan Documents to any Person other than an Affiliate of such Lender unless such Agent has relinquished such title in accordance with SECTION 13.1 (with respect to Administrative Agent) or SECTION 13.10 (with respect to the other Agents). Upon execution, delivery, and acceptance of such Assignment and Acceptance Agreement, the assignee thereunder shall be a party hereto and, to the extent of such assignment, have the obligations, Rights, and benefits of a Lender under the Loan Documents and the assigning Lender shall, to the extent of such assignment, relinquish its Rights and be released from its obligations under the Loan Documents. Upon the consummation of any assignment pursuant to this Section, but only upon the request of the assignor or assignee made through Administrative Agent, Borrower shall issue appropriate Notes to the assignor and the assignee, reflecting such Assignment and Acceptance. If the assignee is not incorporated under the laws of the United States of America or a state thereof, it shall deliver to Borrower and Administrative Agent certification as to exemption from deduction or withholding of Taxes in accordance with SECTION 4.6. (c) Administrative Agent shall maintain at its address referred to in SECTION 14.3 a copy of each Assignment and Acceptance Agreement delivered to and accepted by it and a register for NBPLP CREDIT AGREEMENT the recordation of the names and addresses of the Lenders and the Commitment Percentage, and principal amount of the Borrowings owing to, each Lender from time to time (the "REGISTER"). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and Borrower, Administrative Agent and the Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of the Loan Documents. The Register shall be available for inspection by Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice. Upon the consummation of any assignment in accordance with this SECTION 14.13, SCHEDULE 2.1 shall automatically be deemed amended (to the extent required) by Administrative Agent to reflect the name, address, and, where appropriate, respective Committed Sums under the Facility (as the case may be) of the assignor and assignee. (d) Upon its receipt of an Assignment and Acceptance Agreement executed by the parties thereto, together with any Notes (to the extent any Principal Debt owed to such assigning Lender is evidenced by a Note or Notes) subject to such assignment and payment of the processing fee, Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of EXHIBIT E hereto, (i) accept such Assignment and Acceptance Agreement, (ii) record the information contained therein in the Register, and (iii) give prompt notice thereof to the parties thereto. (e) Subject to the provisions of this Section and in accordance with applicable Law, any Lender may, in the ordinary course of its commercial banking business and in accordance with applicable Law, at any time sell to one or more Persons (each a "PARTICIPANT") participating interests in its portion of the Obligation. In the event of any such sale to a Participant, (i) such Lender shall remain a "Lender" under the Loan Documents and the Participant shall not constitute a "Lender" hereunder, (ii) such Lender's obligations under the Loan Documents shall remain unchanged, (iii) such Lender shall remain solely responsible for the performance thereof, (iv) such Lender shall remain the holder of its share of the Principal Debt for all purposes under the Loan Documents, (v) Borrower and Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender's Rights and obligations under the Loan Documents, and (vi) such Lender shall be solely responsible for any withholding taxes or any filing or reporting requirements relating to such participation and shall hold Borrower and Administrative Agent and their respective successors, permitted assigns, officers, directors, employees, agents, and representatives harmless against the same. Participants shall have no Rights under the Loan Documents, other than certain voting Rights as provided below. Subject to the following, each Lender shall be entitled to obtain (on behalf of its Participants) the benefits of SECTION 4 with respect to all participations in its part of the Obligation outstanding from time to time, so long as Borrower shall not be obligated to pay any amount in excess of the amount that would be due to such Lender under SECTION 4 calculated as though no participations have been made. No Lender shall sell any participating interest under which the Participant shall have any Rights to approve any amendment, modification, or waiver of any Loan Document, except to the extent such amendment, modification, or waiver extends the due date for payment of any amount in respect of principal (other than mandatory prepayments), interest, or fees due under the Loan Documents, reduces the interest rate or the amount of principal or fees applicable to the Obligation (except such reductions as are contemplated by the Loan Documents), or releases all or any substantial portion of the Guaranties under the Loan Documents; provided that, in those cases where a Participant is entitled to the benefits of SECTION 4 or a Lender grants Rights to its Participants to approve amendments to or waivers of the Loan Documents respecting the matters previously described in this sentence, such Lender must include a voting mechanism in the relevant participation agreement or agreements, as the case may be, whereby a majority of such Lender's portion of the Obligation (whether held by such Lender or Participant) shall control the vote for all of such Lender's portion of the Obligation. Except in the case of the sale of a participating interest to another Lender, the relevant participation agreement shall not permit the Participant to transfer, pledge, assign, sell participations in, or otherwise encumber its portion of the Obligation, unless the consent of the transferring Lender (which consent will not be unreasonably withheld) has been obtained. NBPLP CREDIT AGREEMENT (f) Notwithstanding any other provision set forth in this Agreement, any Lender may, without notice to, or the consent of Borrower or Administrative Agent, at any time assign and pledge all or any portion of its Borrowings and its Notes (to the extent any Principal Debt owed to such assigning Lender is evidenced by a Note or Notes) to any Federal Reserve Bank as collateral security pursuant to Regulation A and any Operating Circular issued by such Federal Reserve Bank or any Lender which is a fund may pledge all or any portion of its Borrowings and its Notes (to the extent any Principal Debt owed to such assigning Lender is evidenced by a Note or Notes) to its trustee in support of its obligations to its trustee. No such assignment shall release the assigning Lender from its obligations hereunder. (g) Any Lender may furnish any information concerning the Loan Parties in the possession of such Lender from time to time to Eligible Assignees and Participants (including prospective Eligible Assignees and Participants), subject to the provisions of SECTION 14.14.
Appears in 1 contract
Samples: 364 Day Credit Agreement (Northern Border Partners Lp)
Successors and Assigns; Assignments and Participations. (a) This Facility B Agreement shall be binding upon, and inure to the benefit of the parties hereto and their respective successors and assigns, except that (i) Borrower may not, directly or indirectly, assign or transfer, or attempt to assign or transfer, any of its Rights, duties, duties or obligations under any Loan Documents Papers without the express written consent of all Lenders, and (ii) except as permitted NBPLP CREDIT AGREEMENT under this Section, no Facility B Lender may transfer, pledge, assign, sell any participation in, or otherwise encumber its portion of the Obligation.
(b) Each Facility B Lender may assign to one or more Eligible Assignees all or a portion of its Rights and obligations under this Facility B Agreement and the other Facility B Loan Documents Papers (including, without limitation, all or a portion of its Borrowings and Borrowings, its Notes [to the extent any such Facility B Principal Debt owed to such assigning Facility B Lender is evidenced by a Note or Notes]); provided, however, that:
(i) each such assignment shall be to an Eligible Assignee;
(ii) except in the case of an assignment to another Facility B Lender or in the case of an assignment of all of a Facility B Lender's Rights and obligations under this Facility B Agreement and the other Facility B Loan DocumentsPapers, any such partial assignment shall be in an amount at least equal to $10,000,000;
(iii) each such assignment by a Facility B Lender shall be of a constant, and not varying, percentage of all of its Rights and obligations under this Facility B Agreement and the Notes (to the extent the Facility shall not be less than $5,000,000 unless Borrower and Administrative Agent consent thereto (in their sole discretion) in writing which may be B Principal Debt owed to the assigning Facility B Lender is evidenced by their acceptance and execution of the related Assignment and Acceptance Agreement; provided that, no partial assignment for the Facility (including any assignment among Lenders) may result in any Lender holding less than $10,000,000, provided further that, a Lender may hold an amount less than $10,000,000 but greater than $5,000,000 only if such Lender shall hold at least $10,000,000 in the aggregate of this Facility and the Multi- Year Revolving Agreement (notwithstanding the foregoing, in the event the Multi-Year Revolving Agreement is terminated, any Lender may continue to hold an amount in this Facility greater than or equal to the amount such Lender held on the date of the termination of the Multi-Year Revolving AgreementNotes);
(iiiiv) each such assignment shall exclude Competitive Borrowings, unless the assigning Facility B Lender is selling all of its Rights and obligations under the Facility B Loan Papers; and
(v) the parties to such assignment shall execute and deliver to the Administrative Agent for its acceptance an Assignment and Acceptance Agreement in the form of EXHIBIT E hereto, together with any Notes subject to such assignment (to the extent any the Facility B Principal Debt owed to such the assigning Facility B Lender is evidenced by a Note or any Notes) subject to such assignment and a processing fee of $3,500, including, without limitation, any assignment between Lenders; and
(iv) so long as any Lender is an Agent under this Agreement, such Lender (or an Affiliate of such Lender) shall retain an economic interest in the Loan Documents, will not assign all of its Rights, duties, or obligations under the Loan Documents, except to an Affiliate of such Lender, and will not enter into any Assignment and Acceptance Agreement that would have the effect of such Lender assigning all of its Rights, duties, or obligations under the Loan Documents to any Person other than an Affiliate of such Lender unless such Agent has relinquished such title in accordance with SECTION 13.1 (with respect to Administrative Agent) or SECTION 13.10 (with respect to the other Agents). Upon execution, delivery, and acceptance of such Assignment and Acceptance Agreement, the assignee thereunder shall be a party hereto and, to the extent of such assignment, have the obligations, Rights, and benefits of a Facility B Lender under the Facility B Loan Documents Papers and the assigning Facility B Lender shall, to the extent of such assignment, relinquish its Rights rights and be released from its obligations under the Facility B Loan DocumentsPapers. Upon the consummation of any assignment pursuant to this Section, but only upon the request of the assignor or assignee made through Administrative Agent, Borrower shall issue appropriate Notes to the assignor and the assignee, reflecting such Assignment and Acceptance. If the assignee is not incorporated under the laws of the United States of America or a state thereof, it shall deliver to Borrower and Administrative Agent certification as to exemption from deduction or withholding of Taxes in accordance with SECTION 4.610.9.
(c) The Administrative Agent shall maintain at its address referred to in SECTION 14.3 11.3 a copy of each Assignment and Acceptance Agreement delivered to and accepted by it and a register for NBPLP CREDIT AGREEMENT the recordation of the names and addresses of the Facility B Lenders and the Facility B Commitment Percentageof, and principal amount of the Borrowings owing to, each Facility B Lender from time to time (the "REGISTER"). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and Borrower, Administrative Agent and the Facility B Lenders may treat each Person whose name is recorded in the Register as a Facility B Lender hereunder for all purposes of the Facility B Loan DocumentsPapers. The Register shall be available for inspection by Borrower or any Facility B Lender at any reasonable time and from time to time upon reasonable prior notice. Upon the consummation of any assignment in accordance with this SECTION 14.1311.14, SCHEDULE 2.1 shall automatically be deemed amended (to the extent required) by Administrative Agent to reflect the name, address, and, where appropriate, and respective Facility B Committed Sums under the Facility (as the case may be) of the assignor and assignee.
(d) Upon its receipt of an Assignment and Acceptance Agreement executed by the parties thereto, together with any Notes subject to such assignment (to the extent any the Facility B Principal Debt owed to such the assigning Facility B Lender is evidenced by a Note or any Notes) subject to such assignment and payment of the processing fee, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of EXHIBIT E hereto, (i) accept such Assignment and Acceptance Agreement, (ii) record the information contained therein in the Register, Register and (iii) give prompt notice thereof to the parties thereto.
(e) Subject to the provisions of this Section section and in accordance with applicable Law, any Facility B Lender may, in the ordinary course of its commercial banking business and in accordance with applicable Law, at any time sell to one or more Persons (each a "PARTICIPANT") participating interests in its portion of the Obligation. Obligation under Facility B. In the event of any such sale to a Participant, (i) such Lender shall remain a "Lender" under the Loan Documents and the Participant shall not constitute a "Lender" hereunder, (ii) such Lender's obligations under the Loan Documents shall remain unchanged, (iii) such Lender shall remain solely responsible for the performance thereof, (iv) such Lender shall remain the holder of its share of the Principal Debt for all purposes under the Loan Documents, (v) Borrower and Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender's Rights and obligations under the Loan Documents, and (vi) such Lender shall be solely responsible for any withholding taxes or any filing or reporting requirements relating to such participation and shall hold Borrower and Administrative Agent and their respective successors, permitted assigns, officers, directors, employees, agents, and representatives harmless against the same. Participants shall have no Rights under the Loan Documents, other than certain voting Rights as provided below. Subject to the following, each Lender shall be entitled to obtain (on behalf of its Participants) the benefits of SECTION 4 with respect to all participations in its part of the Obligation outstanding from time to time, so long as Borrower shall not be obligated to pay any amount in excess of the amount that would be due to such Lender under SECTION 4 calculated as though no participations have been made. No Lender shall sell any participating interest under which the Participant shall have any Rights to approve any amendment, modification, or waiver of any Loan Document, except to the extent such amendment, modification, or waiver extends the due date for payment of any amount in respect of principal (other than mandatory prepayments), interest, or fees due under the Loan Documents, reduces the interest rate or the amount of principal or fees applicable to the Obligation (except such reductions as are contemplated by the Loan Documents), or releases all or any substantial portion of the Guaranties under the Loan Documents; provided that, in those cases where a Participant is entitled to the benefits of SECTION 4 or a Lender grants Rights to its Participants to approve amendments to or waivers of the Loan Documents respecting the matters previously described in this sentence, such Lender must include a voting mechanism in the relevant participation agreement or agreements, as the case may be, whereby a majority of such Lender's portion of the Obligation (whether held by such Lender or Participant) shall control the vote for all of such Lender's portion of the Obligation. Except in the case of the sale of a participating interest to another Lender, the relevant participation agreement shall not permit the Participant to transfer, pledge, assign, sell participations in, or otherwise encumber its portion of the Obligation, unless the consent of the transferring Lender (which consent will not be unreasonably withheld) has been obtained. NBPLP CREDIT AGREEMENT
(f) Notwithstanding any other provision set forth in this Agreement, any Lender may, without notice to, or the consent of Borrower or Administrative Agent, at any time assign and pledge all or any portion of its Borrowings and its Notes (to the extent any Principal Debt owed to such assigning Lender is evidenced by a Note or Notes) to any Federal Reserve Bank as collateral security pursuant to Regulation A and any Operating Circular issued by such Federal Reserve Bank or any Lender which is a fund may pledge all or any portion of its Borrowings and its Notes (to the extent any Principal Debt owed to such assigning Lender is evidenced by a Note or Notes) to its trustee in support of its obligations to its trustee. No such assignment shall release the assigning Lender from its obligations hereunder.
(g) Any Lender may furnish any information concerning the Loan Parties in the possession of such Lender from time to time to Eligible Assignees and Participants (including prospective Eligible Assignees and Participants), subject to the provisions of SECTION 14.14.such
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (Worldcom Inc /Ga/)
Successors and Assigns; Assignments and Participations. (a) This The provisions of this Agreement shall be binding upon, upon and inure to the benefit of the parties hereto and their respective successors and assignsassigns permitted hereby, except that (i) Borrower may not, directly or indirectly, not assign or transfer, or attempt to assign or transfer, otherwise transfer any of its Rights, duties, rights or obligations under any Loan Documents hereunder without the express prior written consent of all Lenderseach Lender (and any attempted assignment or transfer by Borrower without such consent shall be null and void). Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and (iiassigns permitted hereby, and, to the extent expressly contemplated hereby, Indemnified Parties) except as permitted NBPLP CREDIT AGREEMENT under this Sectionany legal or equitable right, no Lender may transfer, pledge, assign, sell any participation inremedy, or otherwise encumber its portion claim under or by reason of the Obligationthis Agreement.
(b) Each Any Lender may assign to one or more Eligible Assignees all or a portion of its Rights and obligations rights under the Loan Documents this Agreement (including, without limitation, including all or a portion of its Borrowings Revolving Credit Commitment, Notes, and its Notes Loans (including for purposes of this Section 10.2(b) participations in the Letter of Credit Exposure) at the time owing to the extent any Principal Debt owed to such assigning Lender is evidenced by a Note or Notesit); provided, however, that:
provided that (i) each such assignment shall be to an Eligible Assignee;
(ii) except in the case of an assignment of the entire remaining amount of the assigning Lender’s Revolving Credit Commitment, Notes, and Loans at the time owing to another Lender it or in the case of an assignment of all to a Lender or an Affiliate of a Lender's Rights , the aggregate amount of the Revolving Credit Commitment (which for this purpose includes Loans outstanding thereunder) subject to each such assignment, determined as of the date the Assignment and obligations under the Loan DocumentsAcceptance Agreement with respect to such assignment is delivered to Administrative Agent, any such partial assignment under the Facility shall not be less than $5,000,000 or a greater integral multiple of $1,000,000 unless Borrower and each of Administrative Agent and, so long as no Event of Default has occurred and is continuing, Borrower otherwise consents (each such consent thereto not to be unreasonably withheld or delayed), (in their sole discretionii) in writing which may be evidenced by their acceptance and execution of the related Assignment and Acceptance Agreement; provided that, no each partial assignment for shall be made as an assignment of a proportionate part of all the Facility (including any assignment among Lenders) may result in any Lender holding less than $10,000,000, provided further that, a Lender may hold an amount less than $10,000,000 but greater than $5,000,000 only if such Lender shall hold at least $10,000,000 in the aggregate of assigning Lender’s rights under this Facility and the Multi- Year Revolving Agreement (notwithstanding the foregoing, in the event the Multi-Year Revolving Agreement is terminated, any Lender may continue to hold an amount in this Facility greater than or equal with respect to the amount such Lender held on the date of the termination of the Multi-Year Revolving Agreement);
Credit Commitment, Notes, and Loans assigned, (iii) the parties to such each assignment shall execute and deliver to Administrative Agent for its acceptance an Assignment and Acceptance Agreement in the form of EXHIBIT E heretoAgreement, together with any Notes (to the extent any Principal Debt owed to such assigning Lender is evidenced by a Note or Notes) subject to such assignment and a processing and recordation fee of $3,500, including, without limitation, any assignment between Lenders; and
and (iv) so long as any the assignee Lender, if it is not a Lender is an Agent under this Agreement, such Lender (or an Affiliate prior to the effectiveness of such Lender) assignment, shall retain deliver an economic interest in the Loan Documents, will not assign all of its Rights, duties, or obligations under the Loan Documents, except to an Affiliate of such Lender, and will not enter into any Assignment and Acceptance Agreement that would have the effect of such Lender assigning all of its Rights, duties, or obligations under the Loan Documents to any Person other than an Affiliate of such Lender unless such Agent has relinquished such title in accordance with SECTION 13.1 (with respect administrative questionnaire to Administrative Agent) or SECTION 13.10 (with respect . Subject to acceptance and recording thereof by Administrative Agent pursuant to Section 10.2(c), from and after the other Agents). Upon execution, delivery, and acceptance of such effective date specified in each Assignment and Acceptance Agreement, the assignee Eligible Assignee thereunder shall be a party hereto and, to the extent of the interest assigned by such assignmentAssignment and Acceptance Agreement, have the obligations, Rights, and benefits rights of a Lender under the Loan Documents this Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by such assignmentAssignment and Acceptance Agreement, relinquish its Rights and be released from its obligations under this Agreement (and, in the Loan Documents. Upon case of an Assignment and Acceptance Agreement covering all of the consummation assigning Lender’s rights under this Agreement, such Lender shall cease to be a party hereto but shall continue to be entitled to the benefits of any assignment pursuant to this SectionSection 2.12(a) and Section 2.12(b), but only upon to the request of extent pertaining to the assignor or assignee made through Administrative Agentperiod such party was a Lender, and Section 8.6). Upon request, Borrower shall issue appropriate execute and deliver new or replacement Notes to the assignor assigning Lender and the assignee, reflecting assignee Lender. Any assignment or transfer by a Lender of rights under this Agreement that does not comply with this Section 10.2(b) shall be treated for purposes of this Agreement as a sale by such Assignment and Acceptance. If the assignee is not incorporated under the laws Lender of the United States of America or a state thereof, it shall deliver to Borrower and Administrative Agent certification as to exemption from deduction or withholding of Taxes participation in such rights in accordance with SECTION 4.6Section 10.2(d).
(c) Administrative Agent Agent, acting solely for this purpose as an agent of Borrower, shall maintain at its address referred to in SECTION 14.3 Administrative Agent’s office a copy of each Assignment and Acceptance Agreement delivered to and accepted by it and a register for NBPLP CREDIT AGREEMENT the recordation of the names and addresses of the Lenders Lenders, and the Commitment PercentageRevolving Credit Commitments of, and principal amount of the Borrowings Loans and Letter of Credit Exposure owing to, each Lender pursuant to the terms hereof from time to time (the "REGISTER"“Register”). The entries in the Register shall be conclusive and binding for all purposes, absent manifest errorconclusive, and Borrower, Administrative Agent Agent, Letter of Credit Issuers, and the Lenders may treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the Loan Documentscontrary. The Register shall be available for inspection by Borrower or any Lender Borrower, Administrative Agent, Letter of Credit Issuers, and Lenders, at any reasonable time and from time to time upon reasonable prior notice. Upon the consummation of any assignment in accordance with this SECTION 14.13, SCHEDULE 2.1 shall automatically be deemed amended (to the extent required) by Administrative Agent to reflect the name, address, and, where appropriate, respective Committed Sums under the Facility (as the case may be) of the assignor and assignee.
(d) Upon its receipt of an Assignment and Acceptance Agreement executed by the parties thereto, together with any Notes (to the extent any Principal Debt owed to such assigning Lender is evidenced by a Note or Notes) subject to such assignment and payment of the processing fee, Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of EXHIBIT E hereto, (i) accept such Assignment and Acceptance Agreement, (ii) record the information contained therein in the Register, and (iii) give prompt notice thereof to the parties thereto.
(e) Subject to the provisions of this Section and in accordance with applicable Law, any Any Lender may, without the consent of, or notice to, Borrower, any Lender, or Administrative Agent, sell participations to one (1) or more banks or other entities (a “Participant”) in all or a portion of such Lender’s rights under this Agreement (including all or a portion of its Revolving Credit Commitment, Notes, and Loans (including such Lender’s participations in the ordinary course Letter of its commercial banking business and in accordance with applicable Law, at any time sell Credit Exposure) owing to one or more Persons (each a "PARTICIPANT") participating interests in its portion of the Obligation. In the event of any such sale to a Participant, it); provided that (i) such Lender shall remain a "Lender" under the Loan Documents and the Participant shall not constitute a "Lender" hereunder, (ii) such Lender's ’s obligations under the Loan Documents this Agreement shall remain unchanged, (iiiii) such Lender shall remain solely responsible to the other parties hereto for the performance thereofof such obligations, and (iviii) such Lender shall remain the holder Borrower, Administrative Agent, Letter of its share of the Principal Debt for all purposes under the Loan DocumentsCredit Issuers, (v) Borrower and Administrative Agent Lenders shall continue to deal solely and directly with such Lender in connection with such Lender's Rights and obligations ’s rights under the Loan Documents, and (vi) this Agreement. Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall be solely responsible for any withholding taxes or any filing or reporting requirements relating retain the sole right to such participation enforce this Agreement and shall hold Borrower and Administrative Agent and their respective successors, permitted assigns, officers, directors, employees, agents, and representatives harmless against the same. Participants shall have no Rights under the Loan Documents, other than certain voting Rights as provided below. Subject to the following, each Lender shall be entitled to obtain (on behalf of its Participants) the benefits of SECTION 4 with respect to all participations in its part of the Obligation outstanding from time to time, so long as Borrower shall not be obligated to pay any amount in excess of the amount that would be due to such Lender under SECTION 4 calculated as though no participations have been made. No Lender shall sell any participating interest under which the Participant shall have any Rights to approve any amendment, modification, or waiver of any Loan Documentprovision of this Agreement; provided that such agreement or instrument may provide that such Lender will not, except without the consent of the Participant, agree to the extent such any amendment, modificationwaiver, or waiver extends the due other modification that would (A) postpone any date for upon which any payment of any amount in respect of principal money is scheduled to be paid to such Participant, (other than mandatory prepayments)B) reduce the principal, interest, or fees due under the Loan Documents, reduces the interest rate or the amount of principal or fees applicable to the Obligation (except such reductions as are contemplated by the Loan Documents)fees, or releases all other amounts payable to such Participant, or (C) release any substantial portion of guarantor, except as expressly provided herein. To the Guaranties under the Loan Documents; provided thatextent permitted by Applicable Law, in those cases where a each Participant is also shall be entitled to the benefits of SECTION 4 or Section 2.11
(a) as though it were a Lender grants Rights to its Participants to approve amendments to or waivers of the Loan Documents respecting the matters previously described in this sentence, such Lender must include a voting mechanism in the relevant participation agreement or agreements, as the case may be, whereby a majority of such Lender's portion of the Obligation (whether held by such Lender or Participant) shall control the vote for all of such Lender's portion of the Obligation. Except in the case of the sale of a participating interest to another Lender, the relevant participation agreement shall not permit the provided that such Participant agrees to transfer, pledge, assign, sell participations in, or otherwise encumber its portion of the Obligation, unless the consent of the transferring Lender (which consent will not be unreasonably withheldsubject to Section 2.11(b) has been obtained. NBPLP CREDIT AGREEMENTas though it were a Lender.
(fe) Notwithstanding any other provision set forth in this Agreement, any Any Lender may, without notice to, or the consent of Borrower or Administrative Agent, may at any time pledge or assign and pledge a security interest in all or any portion of its Borrowings and rights under this Agreement (including under its Notes (to the extent any Principal Debt owed to such assigning Lender is evidenced by a Note or Notes, if any) to secure obligations of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank as collateral security pursuant to Regulation A and Bank; provided that no such pledge or assignment shall release a Lender from any Operating Circular issued by such Federal Reserve Bank or any Lender which is a fund may pledge all or any portion of its Borrowings and its Notes (to the extent any Principal Debt owed to such assigning Lender is evidenced by a Note or Notes) to its trustee in support of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto, provided that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, and (iii) Borrower, Administrative Agent, Letter of Credit Issuers, and Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights under this Agreement.
(f) If the consent of Borrower to an assignment or to an Eligible Assignee is required hereunder (including a consent to an assignment which does not meet the minimum assignment threshold specified in clause (i) of the proviso to the first sentence of Section 10.2(b)), Borrower shall be deemed to have given its trustee. No such assignment shall release consent five (5) Business Days after the date notice thereof has been delivered by the assigning Lender from its obligations hereunder.
(gthrough Administrative Agent) Any Lender may furnish any information concerning the Loan Parties in the possession of unless such Lender from time consent is expressly refused by Borrower prior to time to Eligible Assignees and Participants such fifth (including prospective Eligible Assignees and Participants5th), subject to the provisions of SECTION 14.14.
Appears in 1 contract
Successors and Assigns; Assignments and Participations. (a) This The provisions of this Agreement shall be binding upon, upon and inure to the benefit of the parties hereto and their respective successors and assignsassigns permitted hereby, except that (i) Borrower the Borrowers may not, directly or indirectly, not assign or transfer, or attempt to assign or transfer, otherwise transfer any of its Rights, duties, their rights or obligations under any Loan Documents hereunder without the express prior written consent of all Lenders, the Agent (and any attempted assignment or transfer by any Borrower without such consent shall be null and void) and (ii) the Lenders may not assign or otherwise transfer its rights or obligations hereunder except as permitted NBPLP CREDIT AGREEMENT under this Sectionto an assignee (“Assignee”) without the prior written consent of the Borrowers (such consent of the Borrowers not to be unreasonably withheld or delayed), no Lender may transfer, pledge, assign, sell any participation inwhich consent shall not be required (A) during the existence of a Default or Event of Default, or otherwise encumber its portion (B) during the existence of the Obligation.
(b) Each Lender may assign to one or more Eligible Assignees all or a portion default under any material Contractual Obligation of its Rights and obligations under the Loan Documents (including, without limitation, all or a portion of its Borrowings and its Notes to the extent any Principal Debt owed to such assigning Lender is evidenced by a Note or Notes)Borrower; provided, howeverfurther, that:
, (i) each such assignment shall be other than to an Eligible Assignee;
(ii) except in the case of an assignment to another a Lender or in the case of an assignment of all Affiliate of a Lender's Rights and obligations under ), the Loan Documents, amount of Loans of the assigning Lender subject to each assignment (aggregating any such partial assignment under the Facility assignments by Affiliates) shall not be less than $5,000,000 15,000,000, unless Borrower the Borrowers and Administrative the Agent consent thereto (in their sole discretion) in writing which may be evidenced by their otherwise agree. Subject to acceptance and execution of recording thereof pursuant to this Section 9.6, from and after the related effective date specified in each Assignment and Acceptance Agreement; provided that, no partial assignment for the Facility (including any assignment among Lenders) may result in any Lender holding less than $10,000,000, provided further that, a Lender may hold an amount less than $10,000,000 but greater than $5,000,000 only if such Lender shall hold at least $10,000,000 in the aggregate of this Facility and the Multi- Year Revolving Agreement (notwithstanding the foregoing, in the event the Multi-Year Revolving Agreement is terminated, any Lender may continue to hold an amount in this Facility greater than or equal to the amount such Lender held on the date of the termination of the Multi-Year Revolving Agreement);
(iii) the parties to such assignment shall execute and deliver to Administrative Agent for its acceptance an Assignment and Acceptance Agreement in the form of EXHIBIT E hereto, together with any Notes (to the extent any Principal Debt owed to such assigning Lender is evidenced by a Note or Notes) subject to such assignment and a processing fee of $3,500, including, without limitation, any assignment between Lenders; and
(iv) so long as any Lender is an Agent under this Agreement, such Lender (or an Affiliate of such Lender) shall retain an economic interest in the Loan Documents, will not assign all of its Rights, duties, or obligations under the Loan Documents, except to an Affiliate of such Lender, and will not enter into any Assignment and Acceptance Agreement that would have the effect of such Lender assigning all of its Rights, duties, or obligations under the Loan Documents to any Person other than an Affiliate of such Lender unless such Agent has relinquished such title in accordance with SECTION 13.1 (with respect to Administrative Agent) or SECTION 13.10 (with respect to the other Agents). Upon execution, delivery, and acceptance of such Assignment and Acceptance AgreementAssumption, the assignee Assignee thereunder shall be a party hereto and, to the extent of the interest assigned by such assignmentAssignment and Assumption, have the obligations, Rights, rights and benefits obligations of a Lender under the Loan Documents this Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by such assignmentAssignment and Assumption, relinquish its Rights and be released from its obligations under this Agreement (and, in the Loan Documents. Upon the consummation case of any assignment pursuant to this Section, but only upon the request an Assignment and Assumption covering all of the assignor or assignee made through Administrative assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto but shall continue to be entitled to the benefits of Section 9.5). The Agent, Borrower shall issue appropriate Notes to the assignor and the assignee, reflecting such Assignment and Acceptance. If the assignee is not incorporated under the laws acting for this purpose as an agent of the United States of America or a state thereofBorrower, it shall deliver to Borrower and Administrative Agent certification as to exemption from deduction or withholding of Taxes in accordance with SECTION 4.6.
(c) Administrative Agent shall maintain at one of its address referred to in SECTION 14.3 offices a copy of each Assignment and Acceptance Agreement Assumption delivered to and accepted by it and a register for NBPLP CREDIT AGREEMENT the recordation of the names and addresses of the Lenders and the Commitment PercentageLenders, and principal amount of the Borrowings Loans owing to, each Lender pursuant to the terms hereof from time to time (the "REGISTER"“Register”). The entries in the Register shall be conclusive and binding for all purposes, absent manifest errorconclusive, and the Borrower, Administrative Agent the Agent, and the Lenders may treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of the Loan Documents. The Register shall be available for inspection by Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice. Upon the consummation of any assignment in accordance with this SECTION 14.13Agreement, SCHEDULE 2.1 shall automatically be deemed amended (notwithstanding notice to the extent required) by Administrative Agent to reflect the name, address, and, where appropriate, respective Committed Sums under the Facility (as the case may be) of the assignor and assignee.
(d) contrary. Upon its receipt of an a duly completed Assignment and Acceptance Agreement Assumption executed by the parties thereto, together with any Notes (to the extent any Principal Debt owed to such an assigning Lender is evidenced by and an Assignee, the Assignee’s completed administrative questionnaire (unless the Assignee shall already be a Note or Notes) subject Lender hereunder), and any written consent to such assignment and payment of required by this Section 9.6, the processing fee, Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of EXHIBIT E hereto, (i) shall accept such Assignment and Acceptance Agreement, (ii) Assumption and record the information contained therein in the Register, and (iii) give prompt notice thereof to . No assignment shall be effective for purposes of this Agreement unless it has been recorded in the parties theretoRegister as provided in this paragraph.
(eb) Subject to the provisions of this Section and in accordance with applicable Law, any Any Lender may, in without the ordinary course consent of its commercial banking business and in accordance with applicable Lawthe Borrowers or the Agent, at any time sell participations to one or more Persons entities in all or a portion of such Lender’s rights and obligations under this Agreement (each including all or a "PARTICIPANT") participating interests in its portion of the Obligation. In the event of any such sale Loans owing to a Participant, it); provided that (i) such Lender shall remain a "Lender" under the Loan Documents and the Participant shall not constitute a "Lender" hereunder, (ii) such Lender's ’s obligations under the Loan Documents this Agreement shall remain unchanged, (iiiii) such Lender shall remain solely responsible to the other parties hereto for the performance thereofof such obligations and (iii) the Borrower, (iv) such Lender shall remain the holder of its share of Agent and the Principal Debt for all purposes under the Loan Documents, (v) Borrower and Administrative Agent other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender's Rights ’s rights and obligations under the Loan Documents, and (vi) this Agreement. Any agreement pursuant to which a Lender sells such a participation shall provide that such Lender shall be solely responsible for any withholding taxes or any filing or reporting requirements relating retain the sole right to such participation enforce this Agreement and shall hold Borrower and Administrative Agent and their respective successors, permitted assigns, officers, directors, employees, agents, and representatives harmless against the same. Participants shall have no Rights under the Loan Documents, other than certain voting Rights as provided below. Subject to the following, each Lender shall be entitled to obtain (on behalf of its Participants) the benefits of SECTION 4 with respect to all participations in its part of the Obligation outstanding from time to time, so long as Borrower shall not be obligated to pay any amount in excess of the amount that would be due to such Lender under SECTION 4 calculated as though no participations have been made. No Lender shall sell any participating interest under which the Participant shall have any Rights to approve any amendment, modification, modification or waiver of any Loan Documentprovision of this Agreement. Each Lender that sells a participation shall, except to acting solely for this purpose as a non-fiduciary agent of the extent such amendmentBorrower, modification, maintain a register on which it enters the name and address of each participant and the principal amounts (and stated interest) of each participant’s interest in the Loans or waiver extends the due date for payment of any amount in respect of principal (other than mandatory prepayments), interest, or fees due obligations under the Loan Documents, reduces Documents (the interest rate or the amount of principal or fees applicable to the Obligation (except such reductions as are contemplated by the Loan Documents“Participant Register”), or releases all or any substantial portion of the Guaranties under the Loan Documents; provided that, in those cases where a Participant is entitled that no Lender shall have any obligation to the benefits of SECTION 4 or a Lender grants Rights to its Participants to approve amendments to or waivers of the Loan Documents respecting the matters previously described in this sentence, such Lender must include a voting mechanism in the relevant participation agreement or agreements, as the case may be, whereby a majority of such Lender's portion of the Obligation (whether held by such Lender or Participant) shall control the vote for all of such Lender's portion of the Obligation. Except in the case of the sale of a participating interest to another Lender, the relevant participation agreement shall not permit the Participant to transfer, pledge, assign, sell participations in, or otherwise encumber its portion of the Obligation, unless the consent of the transferring Lender (which consent will not be unreasonably withheld) has been obtained. NBPLP CREDIT AGREEMENT
(f) Notwithstanding any other provision set forth in this Agreement, any Lender may, without notice to, or the consent of Borrower or Administrative Agent, at any time assign and pledge disclose all or any portion of the Participant Register (including the identity of any participant or any information relating to a participant’s interest in any commitments, loans, or its Borrowings and its Notes (other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any Principal Debt owed to such assigning Lender is evidenced by a Note or Notes) to any Federal Reserve Bank as collateral security pursuant to Regulation A and any Operating Circular issued by such Federal Reserve Bank or any Lender which is a fund may pledge all or any portion of its Borrowings and its Notes (notice to the extent any Principal Debt owed to such assigning Lender is evidenced by contrary. For the avoidance of doubt, the Agent (in its capacity as Agent) shall have no responsibility for maintaining a Note or Notes) to its trustee in support of its obligations to its trustee. No such assignment shall release the assigning Lender from its obligations hereunderParticipant Register.
(g) Any Lender may furnish any information concerning the Loan Parties in the possession of such Lender from time to time to Eligible Assignees and Participants (including prospective Eligible Assignees and Participants), subject to the provisions of SECTION 14.14.
Appears in 1 contract
Samples: Credit Agreement (Cadiz Inc)
Successors and Assigns; Assignments and Participations. (a) This Agreement shall be binding upon, and inure to the benefit of the parties hereto and their respective successors and assigns, except that (i) Borrower may not, directly or indirectly, assign or transfer, or attempt to assign or transfer, any of its Rights, duties, or obligations under any Loan Documents without the express written consent of all Lenders, and (ii) except as permitted NBPLP CREDIT AGREEMENT under this Section, no Lender may transfer, pledge, assign, sell any participation in, or otherwise encumber its portion of the Obligation.
(b) Each Lender may assign to one or more Eligible Assignees all or a portion of its Rights and obligations under the Loan Documents (including, without limitation, all or a portion of its Borrowings and its Notes Notes, to the extent any Principal Debt owed to such assigning Lender is evidenced by a Note or Notes); provided, however, that:
(i) each such assignment shall be to an Eligible Assignee;
(ii) except in the case of an assignment to another Lender, an Affiliate of Lender or an Approved Fund of any Lender, or in the case of an assignment of all of a Lender's Rights and obligations under the Loan Documents, any such partial assignment under the Revolver Facility shall not be less than $5,000,000 the following amounts for the Revolver Facility (unless Borrower and Administrative Agent and, unless a Default or Potential Default has occurred and is continuing, Borrower consent thereto (in their sole discretion) in writing which may be evidenced by their acceptance and execution of the related Assignment and Acceptance Agreement; provided Agreement);provided that, no partial assignment for the Revolver Facility (including any assignment among Lenders) may result in any Lender holding less than $10,000,000, provided further that, 5,000,000 in the Revolver Facility;
(iii) each such assignment by a Lender may hold an amount less than $10,000,000 but greater than $5,000,000 only if such Lender shall hold at least $10,000,000 in be of a proportionate part of all of the aggregate of assigning Lender's Rights and obligations under this Facility Agreement and the Multi- Year Revolving Agreement Notes (notwithstanding the foregoing, in the event the Multi-Year Revolving Agreement is terminated, any Lender may continue to hold an amount in this Facility greater than or equal to the amount extent any Principal Debt owed to such assigning Lender held on the date of the termination of the Multi-Year Revolving Agreementis evidenced by a Note or Notes);
(iiiiv) the parties to such assignment shall execute and deliver to Administrative Agent for its acceptance an Assignment and Acceptance Agreement in the form of EXHIBIT E heretoAgreement, together with any Notes (to the extent any Principal Debt owed to such assigning Lender is evidenced by a Note or Notes) subject to such assignment and a processing fee of $3,500, including, without limitation, any assignment between Lenders; provided that, no such fee shall be payable in respect of any assignment between a Lender and any of its Affiliates; and
(ivv) so long as any Lender is an Agent under this Agreement, such Lender (or an Affiliate of such Lender) shall retain an economic interest in the Loan Documents, will not assign all of its Rights, duties, or obligations under the Loan Documents, except to an Affiliate of such Lender, and will not enter into any Assignment and Acceptance Agreement that would have the effect of such Lender assigning all of its Rights, duties, or obligations under the Loan Documents to any Person other than an Affiliate of such Lender unless such Agent has relinquished such title in accordance with SECTION 13.1 Section 12.1 (with respect to Administrative Agent) or SECTION 13.10 Section 12.10 (with respect to the other Agents). Upon execution, delivery, and acceptance of such Assignment and Acceptance Agreement, the assignee thereunder shall be a party hereto and, to the extent of such assignment, have the obligations, Rights, and benefits of a Lender under the Loan Documents and the assigning Lender shall, to the extent of such assignment, relinquish its Rights and be released from its obligations under the Loan Documents. Upon the consummation of any assignment pursuant to this Section, but only upon the request of the assignor or assignee made through Administrative Agent, Borrower shall issue appropriate Notes to the assignor and the assignee, reflecting such Assignment and Acceptance. If the assignee is not incorporated under the laws of the United States of America or a state thereof, it shall deliver to Borrower and Administrative Agent certification as to exemption from deduction or withholding of Taxes in accordance with SECTION Section 4.6.
(c) Administrative Agent (acting solely for this administrative purpose as an agent for Borrower) shall maintain at its address referred to in SECTION 14.3 Section 13.3 a copy of each Assignment and Acceptance Agreement delivered to and accepted by it and a register for NBPLP CREDIT AGREEMENT the recordation of the names and addresses of the Lenders and the Commitment Percentage, and principal amount of the Borrowings owing to, each Lender from time to time (the "REGISTERRegister"). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and Borrower, Administrative Agent and the Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of the Loan Documents. The Register shall be available for inspection by Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice. Upon the consummation of any assignment in accordance with this SECTION 14.13Section 13.13, SCHEDULE Schedule 2.1 shall automatically be deemed amended (to the extent required) by Administrative Agent to reflect the name, address, and, where appropriate, the respective Committed Sums under the Revolver Facility (as the case may be) of the assignor and assignee.
(d) Upon its receipt of an Assignment and Acceptance Agreement executed by the parties thereto, together with any Notes (to the extent any Principal Debt owed to such assigning Lender is evidenced by a Note or Notes) subject to such assignment and payment of the processing fee, Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of EXHIBIT E heretocompleted, (i) accept such Assignment and Acceptance Agreement, (ii) record the information contained therein in the Register, and (iii) give prompt notice thereof to the parties thereto.
(e) Subject to the provisions of this Section and in accordance with applicable Law, any Lender may, in the ordinary course of its commercial banking business and in accordance with applicable Law, at any time sell to one or more Persons (other than Borrower or any Affiliate of Borrower) (each a "PARTICIPANTParticipant") participating interests in its portion of the Obligation. In the event of any such sale to a Participant, (i) such Lender shall remain a "Lender" under the Loan Documents and the Participant shall not constitute a "Lender" hereunder, (ii) such Lender's obligations under the Loan Documents shall remain unchanged, (iii) such Lender shall remain solely responsible for the performance thereof, (iv) such Lender shall remain the holder of its share of the Principal Debt for all purposes under the Loan Documents, (v) Borrower and Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender's Rights and obligations under the Loan Documents, and (vi) such Lender shall be solely responsible for any withholding taxes Taxes or any filing or reporting requirements relating to such participation and shall hold Borrower and Administrative Agent and their respective successors, permitted assigns, officers, directors, employees, agents, and representatives harmless against the same. Participants shall have no Rights under the Loan Documents, other than certain voting Rights as provided below. Subject to the following, each Lender shall be entitled to obtain (on behalf of its Participants) the benefits of SECTION Section 4 with respect to all participations in its part of the Obligation outstanding from time to time, so long as Borrower shall not be obligated to pay any amount in excess of the amount that would be due to such Lender under SECTION Section 4 calculated as though no participations have been made. No Lender shall sell any participating interest under which the Participant shall have any Rights to approve any amendment, modification, or waiver of any Loan Document, except to the extent such amendment, modification, or waiver extends the due date for payment of any amount in respect of principal (other than mandatory prepayments), interest, or fees due under the Loan Documents, reduces the interest rate or the amount of principal or fees applicable to the Obligation (except such reductions as are contemplated by the Loan Documents), or releases all or any substantial portion of the Guaranties or all or any substantial portion of the Collateral for the Obligation under the Loan DocumentsDocuments (except such releases of Guaranties or Collateral as are contemplated in Section 6.4); provided that, in those cases where a Participant is entitled to the benefits of SECTION Section 4 or a Lender grants Rights to its Participants to approve amendments to or waivers of the Loan Documents respecting the matters previously described in this sentence, such Lender must include a voting mechanism in the relevant participation agreement or agreements, as the case may be, whereby a majority of such Lender's portion of the Obligation (whether held by such Lender or Participant) shall control the vote for all of such Lender's portion of the Obligation. Except in the case of the sale of a participating interest to another Lender, the relevant participation agreement shall not permit the Participant to transfer, pledge, assign, sell participations in, or otherwise encumber its portion of the Obligation, unless the consent of the transferring Lender (which consent will not be unreasonably withheld) has been obtained. NBPLP CREDIT AGREEMENT.
(f) Notwithstanding any other provision set forth in this Agreement, any Lender may, without notice to, or the consent of Borrower or Administrative Agent, at any time assign and pledge all or any portion of its Borrowings and its Notes (to the extent any Principal Debt owed to such assigning Lender is evidenced by a Note or Notes) to any Federal Reserve Bank as collateral security pursuant to Regulation A and any Operating Circular issued by such Federal Reserve Bank or any Lender which is a fund may pledge all or any portion of its Borrowings and its Notes (to the extent any Principal Debt owed to such assigning Lender is evidenced by a Note or Notes) to its any trustee in support or to any other representative of its holders of obligations owed or securities issued by such fund as security for such obligations or securities; provided that any transfer to its trusteeany Person upon the enforcement of such pledge or security interest may only be made subject to this Section 13.13. No such assignment or pledge shall release the assigning Lender from its obligations hereunder.
(g) Any Lender may furnish any information concerning the Loan Parties and Subsidiaries thereof in the possession of such Lender from time to time to Eligible Assignees and Participants (including prospective Eligible Assignees and Participants), subject ) and to counterparties under a Financial Hedge issued by a Lender or an Affiliate of a Lender to the provisions of SECTION 14.14extent permitted by the Loan Documents.
Appears in 1 contract
Successors and Assigns; Assignments and Participations. (a) This Agreement shall be binding upon, and inure to the benefit of the parties hereto and their respective successors and assigns, except that (i) assignments by Borrower may not, directly or indirectly, assign or transfer, or attempt are subject to assign or transfer, any the restrictions of its Rights, duties, or obligations under any Loan Documents without the express written consent of all LendersSECTION 7.16, and (ii) except as permitted NBPLP CREDIT AGREEMENT under this Section, no Lender may transfer, pledge, assign, sell any participation in, or otherwise encumber its portion of the Obligation.
(b) Each Lender may assign to one or more Eligible Assignees all or a portion of its Rights and obligations under this Agreement and the other Loan Documents Papers (including, without limitation, all or a portion of its Borrowings and Borrowings, its Notes [to the extent any such Principal Debt owed to such assigning Lender is evidenced by a Note or Notes]); provided, however, that:
(i) each such assignment shall be to an Eligible Assignee;
(ii) except in the case of an assignment to another Lender or in the case of an assignment of all of a Lender's Rights and obligations under this Agreement and the other Loan DocumentsPapers, any such partial assignment (when aggregated with the amounts of any concurrent assignments under Facility B and/or Facility A by the assigning Lender to the same assignee) shall be in an amount at least equal to $10,000,000, but in no event shall an assigned interest in any of Facility shall not A, Facility B, or the 364-Day Facility be less than $5,000,000 unless Borrower and Administrative Agent consent thereto 1,000,000 (except in their sole discretion) in writing which may be evidenced by their acceptance and execution case of the related Assignment and Acceptance Agreement; provided that, no partial an assignment for the of all of such 364-Day Facility (including any assignment among Lenders) may result Lender's interest in any Lender holding less than $10,000,000, provided further that, a Lender may hold an amount less than $10,000,000 but greater than $5,000,000 only if such Lender shall hold at least $10,000,000 in the aggregate of this Facility and the Multi- Year Revolving Agreement (notwithstanding the foregoing, in the event the Multi-Year Revolving Agreement is terminated, any Lender may continue to hold an amount in this Facility greater than or equal to the amount such Lender held on the date of the termination of the Multi-Year Revolving Agreementfacility);
(iii) the parties to each such assignment by a Lender shall execute be of a constant, and deliver to Administrative Agent for not varying, percentage of all of its acceptance an Assignment Rights and Acceptance obligations under this Agreement in and the form of EXHIBIT E hereto, together with any Notes (to the extent any the Principal Debt owed to such the assigning Lender is evidenced by a Note or any Notes) subject to such assignment and a processing fee of $3,500, including, without limitation, any assignment between Lenders); and
364-DAY REVOLVING CREDIT AND TERM LOAN AGREEMENT 58 64 (iv) so long as any each such assignment shall exclude Competitive Borrowings, unless the assigning Lender is an Agent under this Agreement, such Lender (or an Affiliate of such Lender) shall retain an economic interest in the Loan Documents, will not assign selling all of its Rights, duties, or obligations under the Loan Documents, except to an Affiliate of such Lender, and will not enter into any Assignment and Acceptance Agreement that would have the effect of such Lender assigning all of its Rights, duties, or obligations under the Loan Documents to any Person other than an Affiliate of such Lender unless such Agent has relinquished such title in accordance with SECTION 13.1 (with respect to Administrative Agent) or SECTION 13.10 (with respect to the other Agents). Upon execution, delivery, and acceptance of such Assignment and Acceptance Agreement, the assignee thereunder shall be a party hereto and, to the extent of such assignment, have the obligations, Rights, and benefits of a Lender under the Loan Documents and the assigning Lender shall, to the extent of such assignment, relinquish its Rights and be released from its obligations under the Loan Documents. Upon the consummation of any assignment pursuant to this Section, but only upon the request of the assignor or assignee made through Administrative Agent, Borrower shall issue appropriate Notes to the assignor and the assignee, reflecting such Assignment and Acceptance. If the assignee is not incorporated under the laws of the United States of America or a state thereof, it shall deliver to Borrower and Administrative Agent certification as to exemption from deduction or withholding of Taxes in accordance with SECTION 4.6.
(c) Administrative Agent shall maintain at its address referred to in SECTION 14.3 a copy of each Assignment and Acceptance Agreement delivered to and accepted by it and a register for NBPLP CREDIT AGREEMENT the recordation of the names and addresses of the Lenders and the Commitment Percentage, and principal amount of the Borrowings owing to, each Lender from time to time (the "REGISTER"). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and Borrower, Administrative Agent and the Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of the Loan Documents. The Register shall be available for inspection by Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice. Upon the consummation of any assignment in accordance with this SECTION 14.13, SCHEDULE 2.1 shall automatically be deemed amended (to the extent required) by Administrative Agent to reflect the name, address, and, where appropriate, respective Committed Sums under the Facility (as the case may be) of the assignor and assignee.
(d) Upon its receipt of an Assignment and Acceptance Agreement executed by the parties thereto, together with any Notes (to the extent any Principal Debt owed to such assigning Lender is evidenced by a Note or Notes) subject to such assignment and payment of the processing fee, Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of EXHIBIT E hereto, (i) accept such Assignment and Acceptance Agreement, (ii) record the information contained therein in the Register, and (iii) give prompt notice thereof to the parties thereto.
(e) Subject to the provisions of this Section and in accordance with applicable Law, any Lender may, in the ordinary course of its commercial banking business and in accordance with applicable Law, at any time sell to one or more Persons (each a "PARTICIPANT") participating interests in its portion of the Obligation. In the event of any such sale to a Participant, (i) such Lender shall remain a "Lender" under the Loan Documents and the Participant shall not constitute a "Lender" hereunder, (ii) such Lender's obligations under the Loan Documents shall remain unchanged, (iii) such Lender shall remain solely responsible for the performance thereof, (iv) such Lender shall remain the holder of its share of the Principal Debt for all purposes under the Loan Documents, (v) Borrower and Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender's Rights and obligations under the Loan Documents, and (vi) such Lender shall be solely responsible for any withholding taxes or any filing or reporting requirements relating to such participation and shall hold Borrower and Administrative Agent and their respective successors, permitted assigns, officers, directors, employees, agents, and representatives harmless against the same. Participants shall have no Rights under the Loan Documents, other than certain voting Rights as provided below. Subject to the following, each Lender shall be entitled to obtain (on behalf of its Participants) the benefits of SECTION 4 with respect to all participations in its part of the Obligation outstanding from time to time, so long as Borrower shall not be obligated to pay any amount in excess of the amount that would be due to such Lender under SECTION 4 calculated as though no participations have been made. No Lender shall sell any participating interest under which the Participant shall have any Rights to approve any amendment, modification, or waiver of any Loan Document, except to the extent such amendment, modification, or waiver extends the due date for payment of any amount in respect of principal (other than mandatory prepayments), interest, or fees due under the Loan Documents, reduces the interest rate or the amount of principal or fees applicable to the Obligation (except such reductions as are contemplated by the Loan Documents), or releases all or any substantial portion of the Guaranties under the Loan Documents; provided that, in those cases where a Participant is entitled to the benefits of SECTION 4 or a Lender grants Rights to its Participants to approve amendments to or waivers of the Loan Documents respecting the matters previously described in this sentence, such Lender must include a voting mechanism in the relevant participation agreement or agreements, as the case may be, whereby a majority of such Lender's portion of the Obligation (whether held by such Lender or Participant) shall control the vote for all of such Lender's portion of the Obligation. Except in the case of the sale of a participating interest to another Lender, the relevant participation agreement shall not permit the Participant to transfer, pledge, assign, sell participations in, or otherwise encumber its portion of the Obligation, unless the consent of the transferring Lender (which consent will not be unreasonably withheld) has been obtained. NBPLP CREDIT AGREEMENT
(f) Notwithstanding any other provision set forth in this Agreement, any Lender may, without notice to, or the consent of Borrower or Administrative Agent, at any time assign and pledge all or any portion of its Borrowings and its Notes (to the extent any Principal Debt owed to such assigning Lender is evidenced by a Note or Notes) to any Federal Reserve Bank as collateral security pursuant to Regulation A and any Operating Circular issued by such Federal Reserve Bank or any Lender which is a fund may pledge all or any portion of its Borrowings and its Notes (to the extent any Principal Debt owed to such assigning Lender is evidenced by a Note or Notes) to its trustee in support of its obligations to its trustee. No such assignment shall release the assigning Lender from its obligations hereunder.
(g) Any Lender may furnish any information concerning the Loan Parties in the possession of such Lender from time to time to Eligible Assignees and Participants (including prospective Eligible Assignees and Participants), subject to the provisions of SECTION 14.14.Papers;
Appears in 1 contract
Samples: 364 Day Revolving Credit and Term Loan Agreement (Worldcom Inc /Ga/)
Successors and Assigns; Assignments and Participations. (a) This The provisions of this Agreement shall be binding upon, upon and inure to the benefit of the parties hereto and their respective successors and assignsassigns permitted hereby, except that (i) the Borrower may not, directly or indirectly, not assign or transfer, or attempt to assign or transfer, otherwise transfer any of its Rights, duties, rights or obligations under any Loan Documents hereunder without the express prior written consent of all Lenders, the Agent (and any attempted assignment or transfer by the Borrower without such consent shall be null and void) and (ii) the Lenders may not assign or otherwise transfer its rights or obligations hereunder except to an assignee ("ASSIGNEE") subject to the following: (x) no one other than Peloton shall be entitled to the benefit of the Board Representation provision that are provided for the benefit of the original Lender in the Loan Documents set forth in Section 2.8(d); (y) each assignee shall agree to be subject to the Exchange Cap and an Assignment and Acceptance, the form of which is attached hereto as EXHIBIT E; and (z) no transfer of more than 50% of the principal amount of the Loans shall be permitted NBPLP CREDIT AGREEMENT under without the prior written consent of Borrower, such consent not to be unreasonably withheld. Subject to acceptance and recording thereof pursuant to this Section, no Lender may transfer, pledge, assign, sell any participation in, or otherwise encumber its portion of from and after the Obligation.
(b) Each Lender may assign to one or more Eligible Assignees all or a portion of its Rights and obligations under the Loan Documents (including, without limitation, all or a portion of its Borrowings and its Notes to the extent any Principal Debt owed to such assigning Lender is evidenced by a Note or Notes); provided, however, that:
(i) effective date specified in each such assignment shall be to an Eligible Assignee;
(ii) except in the case of an assignment to another Lender or in the case of an assignment of all of a Lender's Rights and obligations under the Loan Documents, any such partial assignment under the Facility shall not be less than $5,000,000 unless Borrower and Administrative Agent consent thereto (in their sole discretion) in writing which may be evidenced by their acceptance and execution of the related Assignment and Acceptance Agreement; provided that, no partial assignment for Assumption the Facility (including any assignment among Lenders) may result in any Lender holding less than $10,000,000, provided further that, a Lender may hold an amount less than $10,000,000 but greater than $5,000,000 only if such Lender shall hold at least $10,000,000 in the aggregate of this Facility and the Multi- Year Revolving Agreement (notwithstanding the foregoing, in the event the Multi-Year Revolving Agreement is terminated, any Lender may continue to hold an amount in this Facility greater than or equal to the amount such Lender held on the date of the termination of the Multi-Year Revolving Agreement);
(iii) the parties to such assignment shall execute and deliver to Administrative Agent for its acceptance an Assignment and Acceptance Agreement in the form of EXHIBIT E hereto, together with any Notes (to the extent any Principal Debt owed to such assigning Lender is evidenced by a Note or Notes) subject to such assignment and a processing fee of $3,500, including, without limitation, any assignment between Lenders; and
(iv) so long as any Lender is an Agent under this Agreement, such Lender (or an Affiliate of such Lender) shall retain an economic interest in the Loan Documents, will not assign all of its Rights, duties, or obligations under the Loan Documents, except to an Affiliate of such Lender, and will not enter into any Assignment and Acceptance Agreement that would have the effect of such Lender assigning all of its Rights, duties, or obligations under the Loan Documents to any Person other than an Affiliate of such Lender unless such Agent has relinquished such title in accordance with SECTION 13.1 (with respect to Administrative Agent) or SECTION 13.10 (with respect to the other Agents). Upon execution, delivery, and acceptance of such Assignment and Acceptance Agreement, the assignee Assignee thereunder shall be a party hereto and, to the extent of the interest assigned by such assignmentAssignment and Assumption, have the obligations, Rights, rights and benefits obligations of a Lender under the Loan Documents this Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by such assignmentAssignment and Assumption, relinquish its Rights and be released from its obligations under this Agreement (and, in the Loan Documents. Upon the consummation case of any assignment pursuant to this Section, but only upon the request an Assignment and Assumption covering all of the assignor or assignee made through Administrative assigning Lender's rights and obligations under this Agreement, such Lender shall cease to be a party hereto but shall continue to be entitled to the benefits of Section 9.5). The Agent, Borrower shall issue appropriate Notes to the assignor and the assignee, reflecting such Assignment and Acceptance. If the assignee is not incorporated under the laws acting for this purpose as an agent of the United States of America or a state thereofBorrower, it shall deliver to Borrower and Administrative Agent certification as to exemption from deduction or withholding of Taxes in accordance with SECTION 4.6.
(c) Administrative Agent shall maintain at one of its address referred to in SECTION 14.3 offices a copy of each Assignment and Acceptance Agreement Assumption delivered to and accepted by it and a register for NBPLP CREDIT AGREEMENT the recordation of the names and addresses of the Lenders Lenders, and the Commitment PercentageCommitments of, and principal amount of the Borrowings Loans owing to, each Lender pursuant to the terms hereof from time to time (the "REGISTER"). The entries in the Register shall be conclusive and binding for all purposes, absent manifest errorconclusive, and the Borrower, Administrative Agent the Agent, and the Lenders may treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of the Loan Documents. The Register shall be available for inspection by Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice. Upon the consummation of any assignment in accordance with this SECTION 14.13Agreement, SCHEDULE 2.1 shall automatically be deemed amended (notwithstanding notice to the extent required) by Administrative Agent to reflect the name, address, and, where appropriate, respective Committed Sums under the Facility (as the case may be) of the assignor and assignee.
(d) contrary. Upon its receipt of an a duly completed Assignment and Acceptance Agreement Assumption executed by the parties thereto, together with any Notes (to the extent any Principal Debt owed to such an assigning Lender is evidenced by and an Assignee, the Assignee's completed administrative questionnaire (unless the Assignee shall already be a Note or Notes) subject Lender hereunder), and any written consent to such assignment and payment of required by this Section, the processing fee, Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of EXHIBIT E hereto, (i) shall accept such Assignment and Acceptance Agreement, (ii) Assumption and record the information contained therein in the Register, and (iii) give prompt notice thereof to . No assignment shall be effective for purposes of this Agreement unless it has been recorded in the parties theretoRegister as provided in this paragraph.
(eb) Subject to the provisions of this Section and in accordance with applicable Law, any Any Lender may, in without the ordinary course consent of its commercial banking business and in accordance with applicable Lawthe Borrower or the Agent, at any time sell participations to one or more Persons (each entities in all or a "PARTICIPANT") participating interests in its portion of such Lender's rights and obligations under this Agreement (including all or a portion of its Commitments and the Obligation. In the event of any such sale Loans owing to a Participant, it); provided that (i) such Lender shall remain a "Lender" under the Loan Documents and the Participant shall not constitute a "Lender" hereunder, (ii) such Lender's obligations under the Loan Documents this Agreement shall remain unchanged, (iiiii) such Lender shall remain solely responsible to the other parties hereto for the performance thereofof such obligations and (iii) the Borrower, (iv) such Lender shall remain the holder of its share of Agent and the Principal Debt for all purposes under the Loan Documents, (v) Borrower and Administrative Agent other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender's Rights rights and obligations under the Loan Documents, and (vi) this Agreement. Any agreement pursuant to which a Lender sells such a participation shall provide that such Lender shall be solely responsible for any withholding taxes or any filing or reporting requirements relating retain the sole right to such participation enforce this Agreement and shall hold Borrower and Administrative Agent and their respective successors, permitted assigns, officers, directors, employees, agents, and representatives harmless against the same. Participants shall have no Rights under the Loan Documents, other than certain voting Rights as provided below. Subject to the following, each Lender shall be entitled to obtain (on behalf of its Participants) the benefits of SECTION 4 with respect to all participations in its part of the Obligation outstanding from time to time, so long as Borrower shall not be obligated to pay any amount in excess of the amount that would be due to such Lender under SECTION 4 calculated as though no participations have been made. No Lender shall sell any participating interest under which the Participant shall have any Rights to approve any amendment, modification, modification or waiver of any Loan Document, except to the extent such amendment, modification, or waiver extends the due date for payment provision of any amount in respect of principal (other than mandatory prepayments), interest, or fees due under the Loan Documents, reduces the interest rate or the amount of principal or fees applicable to the Obligation (except such reductions as are contemplated by the Loan Documents), or releases all or any substantial portion of the Guaranties under the Loan Documentsthis Agreement; provided that, in those cases where a Participant is entitled to the benefits of SECTION 4 or a Lender grants Rights to its Participants to approve amendments to or waivers of the Loan Documents respecting the matters previously described in this sentence, that such agreement may provide that such Lender must include a voting mechanism in the relevant participation agreement or agreementswill not, as the case may be, whereby a majority of such Lender's portion of the Obligation (whether held by such Lender or Participant) shall control the vote for all of such Lender's portion of the Obligation. Except in the case of the sale of a participating interest to another Lender, the relevant participation agreement shall not permit the Participant to transfer, pledge, assign, sell participations in, or otherwise encumber its portion of the Obligation, unless without the consent of the transferring Lender loan participant, agree to any amendment, modification or waiver that (which consent will not be unreasonably withheldx) has been obtained. NBPLP CREDIT AGREEMENT
(f) Notwithstanding any other provision set forth in this Agreement, any Lender may, without notice to, or requires the consent of Borrower or Administrative Agent, at any time assign and pledge all or any portion of its Borrowings and its Notes (to the extent any Principal Debt owed to such assigning each Lender is evidenced by a Note or Notes) to any Federal Reserve Bank as collateral security directly affected thereby pursuant to Regulation A Section 9.1 and any Operating Circular issued by (y) directly affects such Federal Reserve Bank or any Lender which is a fund may pledge all or any portion of its Borrowings and its Notes (to the extent any Principal Debt owed to such assigning Lender is evidenced by a Note or Notes) to its trustee in support of its obligations to its trustee. No such assignment shall release the assigning Lender from its obligations hereunderloan participant.
(g) Any Lender may furnish any information concerning the Loan Parties in the possession of such Lender from time to time to Eligible Assignees and Participants (including prospective Eligible Assignees and Participants), subject to the provisions of SECTION 14.14.
Appears in 1 contract
Samples: Credit Agreement (Cadiz Inc)
Successors and Assigns; Assignments and Participations. (a) This Agreement shall be binding upon, and inure to the benefit of the parties hereto and their respective successors and assigns, except that (i) Borrower the Company may not, directly or indirectly, assign or transfer, or attempt to assign or transfer, any of its Rights, duties, duties or obligations under any Loan Documents Papers without the express written consent of all Lenders, and (ii) except as permitted NBPLP CREDIT AGREEMENT under this Section, no Lender may transfer, pledge, assign, sell any participation in, or otherwise encumber its portion of the Obligation.. LETTER OF CREDIT AND REIMBURSEMENT AGREEMENT 58
(b) Each Lender may assign to one or more Eligible Assignees all or a portion of its Rights and obligations under this Agreement and the other Loan Documents (including, without limitation, all or a portion of its Borrowings and its Notes to the extent any Principal Debt owed to such assigning Lender is evidenced by a Note or Notes)Papers; provided, however, that:
(i) each such assignment shall be to an Eligible Assignee;
(ii) except in the case of an assignment to another Lender or in the case to an Affiliate of a Lender, or an assignment of all of a Lender's Rights and obligations under this Agreement and the other Loan DocumentsPapers, any such partial assignment under the Facility shall not be in an amount at least equal to $5,000,000, and, after such assignment, no Lender shall have a Committed Sum of less than $5,000,000 unless Borrower and Administrative Agent consent thereto (in their sole discretion) in writing which may be evidenced each case unless otherwise agreed by their acceptance and execution of the related Assignment and Acceptance Agreement; provided that, no partial assignment for the Facility (including any assignment among Lenders) may result in any Lender holding less than $10,000,000, provided further that, a Lender may hold an amount less than $10,000,000 but greater than $5,000,000 only if such Lender shall hold at least $10,000,000 in the aggregate of this Facility Company and the Multi- Year Revolving Agreement (notwithstanding the foregoing, in the event the Multi-Year Revolving Agreement is terminated, any Lender may continue to hold an amount in this Facility greater than or equal to the amount such Lender held on the date of the termination of the Multi-Year Revolving AgreementAdministrative Agent);
(iii) each such assignment by a Lender shall be of a constant, and not varying, percentage of all of its Rights and obligations under this Agreement; and
(iv) the parties to such assignment shall execute and deliver to the Administrative Agent for its acceptance an Assignment and Acceptance Agreement in the form of EXHIBIT E heretoAgreement, together with any Notes (to the extent any Principal Debt owed to such assigning Lender is evidenced by a Note or Notes) subject to such assignment and a processing fee of $3,500, including, without limitation, any assignment between Lenders; and
(iv) so long as any Lender is an Agent under this Agreement, such Lender (or an Affiliate of such Lender) shall retain an economic interest in the Loan Documents, will not assign all of its Rights, duties, or obligations under the Loan Documents, except to an Affiliate of such Lender, and will not enter into any Assignment and Acceptance Agreement that would have the effect of such Lender assigning all of its Rights, duties, or obligations under the Loan Documents to any Person other than an Affiliate of such Lender unless such Agent has relinquished such title in accordance with SECTION 13.1 (with respect to Administrative Agent) or SECTION 13.10 (with respect to the other Agents). Upon execution, delivery, and acceptance of such Assignment and Acceptance Agreement, the assignee thereunder shall be a party hereto and, to the extent of such assignment, have the obligations, Rights, and benefits of a Lender under the Loan Documents Papers and the assigning Lender shall, to the extent of such assignment, relinquish its Rights rights and be released from its obligations under the Loan Documents. Upon the consummation of any assignment pursuant to this Section, but only upon the request of the assignor or assignee made through Administrative Agent, Borrower shall issue appropriate Notes to the assignor and the assignee, reflecting such Assignment and AcceptancePapers. If the assignee is not incorporated under the laws Laws of the United States of America or a state thereof, it shall deliver to Borrower the Company and the Administrative Agent certification as to exemption from deduction or withholding of Taxes in accordance with SECTION 4.63.6.
(c) The Administrative Agent shall maintain at its address referred to in SECTION 14.3 11.3 a copy of each Assignment and Acceptance Agreement delivered to and accepted by it and a register for NBPLP CREDIT AGREEMENT the recordation of the names and addresses of the Lenders and the Commitment Percentagetheir respective Committed Sums, and principal amount of the Borrowings Drawings, if any, owing to, to each Lender from time to time (the "REGISTER"). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and Borrowerthe Company, the Administrative Agent Agent, Issuing Lender, and the Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of the Loan DocumentsPapers. The Register shall be available for inspection by Borrower the Company or any Lender at any reasonable time and from time to time upon reasonable prior notice. Upon the consummation of any assignment in accordance with this SECTION 14.13Section, SCHEDULE 2.1 shall automatically be deemed amended (to the extent required) by the Administrative Agent to reflect the name, address, and, where appropriate, and respective Committed Sums under the Facility (as the case may be) of the assignor and assignee.
(d) Upon its receipt of an Assignment and Acceptance Agreement executed by the parties thereto, together with any Notes (to the extent any Principal Debt owed to such assigning Lender is evidenced by a Note or Notes) subject to such assignment and payment of the processing fee, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of EXHIBIT E B hereto, : (i) accept such Assignment and Acceptance Agreement, (ii) record the information contained therein in the Register, and (iii) give prompt notice thereof to the parties thereto.
(e) Subject to the provisions of this Section and in accordance with applicable Law, any Lender may, in the ordinary course of its commercial banking lending business and in accordance with applicable Law, at any time sell to one or more Persons (each a "PARTICIPANT") participating interests in its portion of the Obligation. In the event of any such sale to a Participant, (i) such LETTER OF CREDIT AND REIMBURSEMENT AGREEMENT Lender shall remain a "Lender" under the Loan Documents this Agreement and the Participant shall not constitute a "Lender" hereunder, (ii) such Lender's obligations under the Loan Documents this Agreement shall remain unchanged, (iii) such Lender shall remain solely responsible for the performance thereof, (iv) such Lender shall remain the holder of its share of the Principal Debt Obligation for all purposes under the Loan Documentsthis Agreement, (v) Borrower the Company and the Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender's Rights and obligations under the Loan DocumentsPapers, and (vi) such Lender shall be solely responsible for any withholding taxes or any filing or reporting requirements relating to such participation and shall hold Borrower the Company and the Administrative Agent and their respective successors, permitted assigns, officers, directors, employees, agents, and representatives harmless against the same. Participants shall have no Rights under the Loan DocumentsPapers, other than certain voting Rights as provided below. Subject to the following, each Lender shall be entitled to obtain (on behalf of its Participants) the benefits of SECTION 4 3.4 with respect to all participations in its part of the Obligation outstanding from time to time, time so long as Borrower the Company shall not be obligated to pay any amount in excess of the amount that would be due to such Lender under SECTION 4 3.4 calculated as though no participations have been made. No Lender shall sell any participating interest under which the Participant shall have any Rights to approve any amendment, modification, or waiver of any Loan DocumentPaper, except to the extent such amendment, modification, or waiver extends the due date for payment of any amount in respect of principal (other than mandatory prepayments), interest, or fees due under the Loan Documents, reduces the interest rate or the amount of principal or fees applicable Lender has voting rights pursuant to the Obligation (except such reductions as are contemplated by the Loan Documents), or releases all or any substantial portion of the Guaranties under the Loan DocumentsSECTION 11.10; provided that, in those cases where a Participant is entitled to the benefits of SECTION 4 3.4 or a Lender grants Rights to its Participants to approve amendments to or waivers of the Loan Documents Papers respecting the matters previously described in this sentence, such Lender must include a voting mechanism in the relevant participation agreement or agreements, as the case may be, whereby a majority of such Lender's portion of the Obligation (whether held by such Lender or Participant) shall control the vote for all of such Lender's portion of the Obligation. Except in the case of the sale of a participating interest to another Lender, the relevant participation agreement shall not permit the Participant to transfer, pledge, assign, sell participations in, or otherwise encumber its portion of the Obligation, unless the consent of the transferring Lender (which consent will not be unreasonably withheld) has been obtained. NBPLP CREDIT AGREEMENT.
(f) Notwithstanding any other provision set forth in this Agreement, any Lender may, without notice to, or the consent of Borrower or Administrative Agent, may at any time assign and pledge all or any portion of its Borrowings loans and its Notes (to the extent any Principal Debt owed to such assigning Lender is evidenced by a Note or Notes) advances hereunder to any Federal Reserve Bank as collateral security pursuant to Regulation A and any Operating Circular issued by such Federal Reserve Bank or any Lender which is a fund may pledge all or any portion of its Borrowings and its Notes (to the extent any Principal Debt owed to such assigning Lender is evidenced by a Note or Notes) to its trustee in support of its obligations to its trusteeBank. No such assignment shall release the assigning Lender from its obligations hereunder.
(g) Any Lender may furnish any information concerning the Loan Credit Parties in the possession of such Lender from time to time to Eligible Assignees and Participants (including prospective Eligible Assignees and Participants), subject subject, however, to the provisions of SECTION 14.1411.16 hereof.
Appears in 1 contract
Samples: Letter of Credit and Reimbursement Agreement (Flowserve Corp)
Successors and Assigns; Assignments and Participations. (a) This Agreement shall be binding upon, and inure Subject to the benefit of the parties hereto and their respective successors and assigns, except that (iSections 13.2(f) Borrower may not, directly or indirectly, assign or transfer, or attempt to assign or transfer, any of its Rights, duties, or obligations under any Loan Documents without the express written consent of all Lenders, and (ii) except as permitted NBPLP CREDIT AGREEMENT under this Sectionh), no Lender may transfer, pledge, assign, sell at any participation in, or otherwise encumber its portion of the Obligation.
(b) Each Lender may time assign to one or more Eligible Assignees all or a portion of its Rights rights and delegate all or a portion of its obligations under this Agreement and the other Loan Documents (including all its rights and obligations under with respect to the Loan Documents Loan) to one or more Persons constituting a Qualified Transferee, Eligible Transferee or Qualified Institutional Lender (each as defined in the applicable Intercreditor Agreement (a "TRANSFEREE")); provided, that such assignment shall be in an amount of not less than $5,000,000; provided, further, that notwithstanding anything to the contrary in this Agreement (including, without limitation, all or a portion of its Borrowings and its Notes to the extent any Principal Debt owed to such assigning Lender is evidenced by a Note or Notes); provided, however, that:
(i) each such assignment shall be to an Eligible Assignee;
(ii) except in the case of an assignment to another Lender or in the case of an assignment of all of a Lender's Rights and obligations under the Loan Documents, any such partial assignment under the Facility shall not be less than $5,000,000 unless Borrower and Administrative Agent consent thereto (in their sole discretion) in writing which may be evidenced by their acceptance and execution of the related Assignment and Acceptance Agreement; provided that, no partial assignment for the Facility (including any assignment among Lenders) may result in any Lender holding less than $10,000,000, provided further that, a Lender may hold an amount less than $10,000,000 but greater than $5,000,000 only if such Lender shall hold at least $10,000,000 in the aggregate of this Facility and the Multi- Year Revolving Agreement (notwithstanding the foregoing, in the event the Multi-Year Revolving Agreement is terminated, any Lender may continue to hold an amount limitation set forth in this Facility greater than or equal to the amount such Lender held on the date of the termination of the Multi-Year Revolving AgreementSection 13.2(a);
(iii) the parties to such assignment shall execute and deliver to Administrative Agent for its acceptance an Assignment and Acceptance Agreement in the form of EXHIBIT E hereto), together with any Notes (to the extent any Principal Debt owed to such assigning Lender is evidenced by a Note or Notes) subject to such assignment and a processing fee of $3,500, including, without limitation, any assignment between Lenders; and
(iv) CapitalSource hereby agrees that so long as (A) any Lender is an Agent under this Agreement, such Lender Obligations (or an Affiliate of such Lender) shall retain an economic interest in the Loan Documents, will not assign all of its Rights, duties, or obligations under the Loan Documents, except to an Affiliate of such Lender, and will not enter into any Assignment and Acceptance Agreement that would have the effect of such Lender assigning all of its Rights, duties, or other than indemnity obligations under the Loan Documents to that are not then due and payable or for which any Person other than an Affiliate events or claims that would give rise thereto are not then due and payable or for which any events or claims that would give rise thereto are not then pending) remain outstanding, (B) no Default or Event of such Lender unless such Agent Default has relinquished such title in accordance with SECTION 13.1 occurred and is continuing, and (with respect to Administrative AgentC) CapitalSource has not previously assigned any of its rights during the continuance of a Default or SECTION 13.10 Event of Default, its aggregate Commitments shall equal at least fifty and one-tenth of one percent (with respect 50.1%) of the total aggregate Commitments. Notwithstanding anything to the contrary in this Agreement, there shall be no limitation or restriction on Lender's ability to assign, pledge or otherwise transfer any Note or other Agents)Obligation if an Event of Default shall have occurred. The Transferee and Lender shall execute and deliver for acceptance and recording in the Register, a Lender Addition Agreement, which shall be in form and substance reasonably acceptable to Lender in its sole discretion. Upon such execution, delivery, acceptance and acceptance of such Assignment Loan and Acceptance Agreement, the assignee thereunder shall be a party hereto and, to the extent of such assignment, have the obligations, Rights, and benefits of a Lender under the Loan Documents and the assigning Lender shall, to the extent of such assignment, relinquish its Rights and be released from its obligations under the Loan Documents. Upon the consummation of any assignment pursuant to this Section, but only upon the request of the assignor or assignee made through Administrative Agent, Borrower shall issue appropriate Notes to the assignor and the assignee, reflecting such Assignment and Acceptance. If the assignee is not incorporated under the laws of the United States of America or a state thereof, it shall deliver to Borrower and Administrative Agent certification as to exemption from deduction or withholding of Taxes in accordance with SECTION 4.6.
Security Agreement (c) Administrative Agent shall maintain at its address referred to in SECTION 14.3 a copy of each Assignment and Acceptance Agreement delivered to and accepted by it and a register for NBPLP CREDIT AGREEMENT the recordation of the names and addresses of the Lenders and the Commitment Percentage, and principal amount of the Borrowings owing to, each Lender from time to time (the "REGISTER"Ashford). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and Borrower, Administrative Agent and the Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of the Loan Documents. The Register shall be available for inspection by Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice. Upon the consummation of any assignment in accordance with this SECTION 14.13, SCHEDULE 2.1 shall automatically be deemed amended (to the extent required) by Administrative Agent to reflect the name, address, and, where appropriate, respective Committed Sums under the Facility (as the case may be) of the assignor and assignee.
(d) Upon its receipt of an Assignment and Acceptance Agreement executed by the parties thereto, together with any Notes (to the extent any Principal Debt owed to such assigning Lender is evidenced by a Note or Notes) subject to such assignment and payment of the processing fee, Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of EXHIBIT E hereto, (i) accept such Assignment and Acceptance Agreement, (ii) record the information contained therein in the Register, and (iii) give prompt notice thereof to the parties thereto.
(e) Subject to the provisions of this Section and in accordance with applicable Law, any Lender may, in the ordinary course of its commercial banking business and in accordance with applicable Law, at any time sell to one or more Persons (each a "PARTICIPANT") participating interests in its portion of the Obligation. In the event of any such sale to a Participant, (i) such Lender shall remain a "Lender" under the Loan Documents and the Participant shall not constitute a "Lender" hereunder, (ii) such Lender's obligations under the Loan Documents shall remain unchanged, (iii) such Lender shall remain solely responsible for the performance thereof, (iv) such Lender shall remain the holder of its share of the Principal Debt for all purposes under the Loan Documents, (v) Borrower and Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender's Rights and obligations under the Loan Documents, and (vi) such Lender shall be solely responsible for any withholding taxes or any filing or reporting requirements relating to such participation and shall hold Borrower and Administrative Agent and their respective successors, permitted assigns, officers, directors, employees, agents, and representatives harmless against the same. Participants shall have no Rights under the Loan Documents, other than certain voting Rights as provided below. Subject to the following, each Lender shall be entitled to obtain (on behalf of its Participants) the benefits of SECTION 4 with respect to all participations in its part of the Obligation outstanding from time to time, so long as Borrower shall not be obligated to pay any amount in excess of the amount that would be due to such Lender under SECTION 4 calculated as though no participations have been made. No Lender shall sell any participating interest under which the Participant shall have any Rights to approve any amendment, modification, or waiver of any Loan Document, except to the extent such amendment, modification, or waiver extends the due date for payment of any amount in respect of principal (other than mandatory prepayments), interest, or fees due under the Loan Documents, reduces the interest rate or the amount of principal or fees applicable to the Obligation (except such reductions as are contemplated by the Loan Documents), or releases all or any substantial portion of the Guaranties under the Loan Documents; provided that, in those cases where a Participant is entitled to the benefits of SECTION 4 or a Lender grants Rights to its Participants to approve amendments to or waivers of the Loan Documents respecting the matters previously described in this sentence, such Lender must include a voting mechanism in the relevant participation agreement or agreements, as the case may be, whereby a majority of such Lender's portion of the Obligation (whether held by such Lender or Participant) shall control the vote for all of such Lender's portion of the Obligation. Except in the case of the sale of a participating interest to another Lender, the relevant participation agreement shall not permit the Participant to transfer, pledge, assign, sell participations in, or otherwise encumber its portion of the Obligation, unless the consent of the transferring Lender (which consent will not be unreasonably withheld) has been obtained. NBPLP CREDIT AGREEMENT
(f) Notwithstanding any other provision set forth in this Agreement, any Lender may, without notice to, or the consent of Borrower or Administrative Agent, at any time assign and pledge all or any portion of its Borrowings and its Notes (to the extent any Principal Debt owed to such assigning Lender is evidenced by a Note or Notes) to any Federal Reserve Bank as collateral security pursuant to Regulation A and any Operating Circular issued by such Federal Reserve Bank or any Lender which is a fund may pledge all or any portion of its Borrowings and its Notes (to the extent any Principal Debt owed to such assigning Lender is evidenced by a Note or Notes) to its trustee in support of its obligations to its trustee. No such assignment shall release the assigning Lender from its obligations hereunder.
(g) Any Lender may furnish any information concerning the Loan Parties in the possession of such Lender from time to time to Eligible Assignees and Participants (including prospective Eligible Assignees and Participants), subject to the provisions of SECTION 14.14.
Appears in 1 contract
Samples: Loan and Security Agreement (Ashford Hospitality Trust Inc)
Successors and Assigns; Assignments and Participations. (a) This Agreement shall be binding upon, upon and shall inure to the benefit of Borrower, Agent and the parties hereto Lenders and their respective successors and assigns, except that (i) Borrower may not, directly or indirectly, assign or transfer, or attempt to assign or transfer, any of its Rights, duties, or obligations under any Loan Documents without the express written consent of all Lenders, and (ii) except as permitted NBPLP CREDIT AGREEMENT under this Section, no Lender may transfer, pledge, assign, sell any participation in, or otherwise encumber its portion of the Obligation.
(b) Each Lender The foregoing shall not authorize any assignment by Borrower, of its rights or duties hereunder, and, except as otherwise provided herein, no such assignment shall be made (or effective) without the prior written approval of the Lenders.
(c) The Borrower and Agent acknowledge that each of the Lenders may at any time and from time to time, without cost of the Borrower, subject to the terms and conditions hereof, assign to one or more Eligible Assignees all grant participations in such Lender's rights and obligations hereunder (on a pro rata or a portion of its Rights non-rata basis) and obligations under the other Loan Documents (includingto any commercial Lender, without limitationsavings and loan association, all insurance company, pension fund, mutual fund, loan or a portion debt fund, commercial finance company or other similar financial institution, the identity of its Borrowings which institution is approved by Borrower and its Notes Agent, such approval not to the extent any Principal Debt owed to such assigning Lender is evidenced by a Note be unreasonably withheld or Notes)delayed; provided, however, thatthat (i) the approval of Borrower shall not be required upon the occurrence and during the continuance of an Event of Default, (ii) the approval of Borrower and Agent shall not be required for any such sale, transfer, assignment or participation to the Affiliate of an assigning Lender, any other Lender or any 71 Federal Reserve Lender and (iii) no assignment shall be made or participation granted to an entity which is a competitor of Borrower and its Subsidiaries without the consent of the Borrower, which consent may be withheld in the sole discretion of Borrower. The Borrower authorizes each Lender to disclose to any prospective assignee or participant, once approved by Borrower and Agent, any and all financial information in such Lender's possession concerning the Borrower which has been delivered to such Lender pursuant to this Agreement.
(d) Each assignment by a Lender of all or any portion of its rights and obligations hereunder and under the other Loan Documents, which assignments shall be on a pro rata or (but only with the consent of the Agent) a non pro-rata basis, shall be made pursuant to an Assignment Agreement ("Assignment Agreement") substantially (as determined by Agent) in the form attached hereto as Exhibit N (with appropriate insertions acceptable to Agent) (provided however that such Lender need not deliver an Assignment Agreement in connection with assignments to such Lender's Affiliates or to a Federal Reserve Lender) and shall be subject to the terms and conditions hereof, and to the following restrictions:
(i) each such no assignment shall be to effective unless Agent has received from the assignee (or from the assigning Lender) an Eligible Assignee;assignment fee of $3,500 for each such assignment; and
(ii) except each assignment shall be in the case of an assignment amount approved by Agent, such approval not to another Lender or in the case of an assignment of all of a Lender's Rights and obligations under the Loan Documentsbe unreasonably withheld. In connection with any assignment, any such partial assignment under the Facility shall not be less than $5,000,000 unless Borrower and Administrative Agent consent thereto shall be entitled to continue to deal solely and directly with the assigning Lender in connection with the interest so assigned until (in their sole discretionx) in writing which may be evidenced the Agent shall have received a notice of assignment duly executed by their acceptance the assigning Lender and execution of an Assignment Agreement (with respect thereto) duly executed by the related Assignment assigning Lender and Acceptance Agreementeach assignee; provided that, no partial assignment for and (y) the Facility (including any assignment among Lenders) may result in any Lender holding less than $10,000,000, provided further that, a Lender may hold an amount less than $10,000,000 but greater than $5,000,000 only if such assigning Lender shall hold at least $10,000,000 in the aggregate of this Facility and the Multi- Year Revolving Agreement (notwithstanding the foregoing, in the event the Multi-Year Revolving Agreement is terminated, any Lender may continue to hold an amount in this Facility greater than or equal have delivered to the amount such Lender Agent the original of each Note held on by the date of the termination of the Multi-Year Revolving Agreement);
(iii) the parties to such assignment shall execute and deliver to Administrative Agent for its acceptance an Assignment and Acceptance Agreement in the form of EXHIBIT E hereto, together with any Notes (to the extent any Principal Debt owed to such assigning Lender is evidenced by a Note or Notes) subject to such assignment and a processing fee of $3,500, including, without limitation, any assignment between Lenders; and
(iv) so long as any Lender is an Agent under this Agreement, such . From and after the date on which the Agent shall notify Borrower and the assigning Lender in writing that the foregoing conditions shall have been satisfied and all consents (or an Affiliate of such Lenderif any) required shall retain an economic interest in the Loan Documents, will not assign all of its Rights, duties, or obligations under the Loan Documents, except to an Affiliate of such Lender, and will not enter into any Assignment and Acceptance Agreement that would have the effect of such Lender assigning all of its Rights, duties, or obligations under the Loan Documents to any Person other than an Affiliate of such Lender unless such Agent has relinquished such title in accordance with SECTION 13.1 (with respect to Administrative Agent) or SECTION 13.10 (with respect to the other Agents). Upon execution, delivery, and acceptance of such Assignment and Acceptance Agreementbeen given, the assignee thereunder shall be deemed to be a party hereto andto this Agreement. To the extent that rights and obligations hereunder shall have been assigned to such assignee as provided in such notice of assignment (and Assignment Agreement), such assignee shall have the rights and obligations of a Lender under this Agreement and the other Loan Documents (including without limitation the right to receive fees payable hereunder in respect of the period following such assignment). In addition, the assigning Lender, to the extent that rights and obligations hereunder shall have been assigned by it as provided in such notice of such assignmentassignment (and Assignment Agreement), have the obligationsbut not otherwise, Rights, and benefits of a Lender under the Loan Documents and the assigning Lender shall, to the extent of such assignment, shall relinquish its Rights rights and be released from its obligations under this Agreement and the other Loan Documents. Upon Within five (5) Business Days following Borrower's receipt of written notice from the consummation Agent that Agent has accepted and executed a notice of assignment and the duly executed Assignment Agreement and assuming the Borrower has consented to such assignment (if their consent is required), Borrower shall, to the extent applicable, execute and deliver to the Agent in exchange for any assignment surrendered Note, new Note(s) payable to the order of the assignee in an amount equal to the amount assigned to it pursuant to this Sectionsuch notice of assignment (and Assignment Agreement), but only upon and with respect to the request portion of the assignor or assignee made through Administrative Indebtedness retained by the assigning Lender, to the extent applicable, new Note(s) payable to the order of the assigning Lender in an amount equal to the amount retained by such Lender hereunder. Agent, Borrower shall issue appropriate Notes to the assignor and the assignee, reflecting such Assignment and Acceptance. If the assignee is not incorporated under the laws of the United States of America or a state thereof, it shall deliver to Borrower and Administrative Agent certification as to exemption from deduction or withholding of Taxes in accordance with SECTION 4.6.
(c) Administrative Agent shall maintain at its address referred to in SECTION 14.3 a copy of each Assignment and Acceptance Agreement delivered to and accepted by it and a register for NBPLP CREDIT AGREEMENT the recordation of the names and addresses of the Lenders and the Commitment PercentageBorrower acknowledge and agree that any such new Note(s) shall be given in renewal and replacement of the surrendered Notes and shall not effect or constitute a novation or discharge of the Obligations evidenced by any surrendered Note, and principal amount each such new Note may contain a provision confirming such agreement. In addition, promptly following receipt of such Notes, Agent shall prepare and distribute to Borrower and the assigning Lender and the assignee Lender a revised Schedule 1 72 to this Agreement setting forth the applicable new Percentages of the Borrowings owing toLenders (including the assignee Lender), each Lender from time to time (the "REGISTER"). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and Borrower, Administrative Agent and the Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of the Loan Documents. The Register shall be available for inspection by Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice. Upon the consummation of any assignment in accordance with this SECTION 14.13, SCHEDULE 2.1 shall automatically be deemed amended (to the extent required) by Administrative Agent to reflect the name, address, and, where appropriate, respective Committed Sums under the Facility (as the case may be) of the assignor and assignee.
(d) Upon its receipt of an Assignment and Acceptance Agreement executed by the parties thereto, together with any Notes (to the extent any Principal Debt owed to taking into account such assigning Lender is evidenced by a Note or Notes) subject to such assignment and payment of the processing fee, Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of EXHIBIT E hereto, (i) accept such Assignment and Acceptance Agreement, (ii) record the information contained therein in the Register, and (iii) give prompt notice thereof to the parties theretoassignment.
(e) Subject Each Lender agrees that any participation agreement permitted hereunder shall comply with all applicable laws and shall be subject to the provisions of this Section and in accordance with applicable Law, any Lender may, following restrictions (which shall be set forth in the ordinary course of its commercial banking business and in accordance with applicable Law, at any time sell to one or more Persons (each a "PARTICIPANT") participating interests in its portion of the Obligation. In the event of any such sale to a Participant, Participation Agreement):
(i) such Lender shall remain a "Lender" under the Loan Documents and the Participant shall not constitute a "Lender" hereunder, (ii) such Lender's obligations under the Loan Documents shall remain unchanged, (iii) such Lender shall remain solely responsible for the performance thereof, (iv) such Lender shall remain the holder of its share of the Principal Debt for all purposes under the Loan DocumentsNotes hereunder, (v) Borrower and Administrative Agent shall continue to deal solely and directly with notwithstanding any such Lender in connection with such Lender's Rights and obligations under the Loan Documents, and (vi) such Lender shall be solely responsible for any withholding taxes or any filing or reporting requirements relating to such participation and shall hold Borrower and Administrative Agent and their respective successors, permitted assigns, officers, directors, employees, agents, and representatives harmless against the same. Participants shall have no Rights under the Loan Documents, other than certain voting Rights as provided below. Subject to the following, each Lender shall be entitled to obtain (on behalf of its Participants) the benefits of SECTION 4 with respect to all participations in its part of the Obligation outstanding from time to time, so long as Borrower shall not be obligated to pay any amount in excess of the amount that would be due to such Lender under SECTION 4 calculated as though no participations have been made. No Lender shall sell any participating interest under which the Participant shall have any Rights to approve any amendment, modification, or waiver of any Loan Document, except to the extent such amendment, modification, or waiver extends the due date for payment of any amount in respect of principal (other than mandatory prepayments), interest, or fees due under the Loan Documents, reduces the interest rate or the amount of principal or fees applicable to the Obligation (except such reductions as are contemplated by the Loan Documents), or releases all or any substantial portion of the Guaranties under the Loan Documents; provided that, in those cases where a Participant is entitled to the benefits of SECTION 4 or a Lender grants Rights to its Participants to approve amendments to or waivers of the Loan Documents respecting the matters previously described in this sentence, such Lender must include a voting mechanism in the relevant participation agreement or agreements, as the case may be, whereby a majority of such Lender's portion of the Obligation (whether held by such Lender or Participant) shall control the vote for all of such Lender's portion of the Obligation. Except in the case of the sale of a participating interest to another Lender, the relevant participation agreement shall not permit the Participant to transfer, pledge, assign, sell participations in, or otherwise encumber its portion of the Obligation, unless the consent of the transferring Lender (which consent will not be unreasonably withheld) has been obtained. NBPLP CREDIT AGREEMENTparticipation;
(fii) Notwithstanding any other provision except as expressly set forth in this AgreementSection 10.2 with respect to rights of setoff and the benefits of Sections 3.4 through 3.8 hereof, any Lender may, without notice toa participant shall have no direct rights or remedies hereunder; (iii) a participant shall not reassign or transfer, or the consent of Borrower or Administrative Agent, at grant any time assign and pledge all sub-participations in its participation interest hereunder or any portion of its Borrowings and its Notes (to the extent any Principal Debt owed to such assigning Lender is evidenced by a Note or Notes) to any Federal Reserve Bank as collateral security pursuant to Regulation A and any Operating Circular issued by such Federal Reserve Bank or any Lender which is a fund may pledge all or any portion of its Borrowings and its Notes (to the extent any Principal Debt owed to such assigning Lender is evidenced by a Note or Notes) to its trustee in support of its obligations to its trustee. No such assignment shall release the assigning Lender from its obligations hereunder.
(g) Any Lender may furnish any information concerning the Loan Parties in the possession of such Lender from time to time to Eligible Assignees and Participants (including prospective Eligible Assignees and Participants), subject to the provisions of SECTION 14.14.part thereof; and
Appears in 1 contract
Samples: Loan Agreement (Summa Industries)
Successors and Assigns; Assignments and Participations. (a) This The provisions of this Agreement shall be binding upon, upon and inure to the benefit of the parties hereto and their respective successors and assignsassigns permitted hereby, except that (i) the Borrower may not, directly or indirectly, not assign or transfer, or attempt to assign or transfer, otherwise transfer any of its Rights, duties, rights or obligations under any Loan Documents hereunder without the express prior written consent of all Lenders, the Agent (and any attempted assignment or transfer by the Borrower without such consent shall be null and void) and (ii) except as permitted NBPLP CREDIT AGREEMENT under this Section, no Lender the Lenders may transfer, pledge, assign, sell any participation in, not assign or otherwise encumber transfer its portion rights or obligations hereunder except to an assignee (“Assignee”); provided that, on or prior to the second anniversary of the Obligation.
Closing Date, the Lenders may not assign or otherwise transfer their rights or obligations hereunder to an Assignee other than a Lender or an Affiliate of a Lender without the prior written consent of the Borrowers (bsuch consent of the Borrowers not to be unreasonably withheld or delayed), which consent shall not be required during the existence of (A) Each Lender may assign to one a Default or more Eligible Assignees all Event of Default or (B) a portion default under any material Contractual Obligation of its Rights and obligations under the Loan Documents (including, without limitation, all or a portion of its Borrowings and its Notes to the extent any Principal Debt owed to such assigning Lender is evidenced by a Note or Notes)Borrower; provided, howeverfurther, that:
, following the second anniversary of the Closing Date (i) each such assignment shall be other than to an Eligible Assignee;
(ii) except in the case of an assignment to another a Lender or in the case of an assignment of all Affiliate of a Lender's Rights and obligations under ), the Loan Documents, amount of Loans of the assigning Lender subject to each assignment (aggregating any such partial assignment under the Facility assignments by Affiliates) shall not be less than $5,000,000 15,000,000, unless Borrower the Borrowers and Administrative the Agent consent thereto (in their sole discretion) in writing which may be evidenced by their otherwise agree. Subject to acceptance and execution of recording thereof pursuant to this Section 9.6, from and after the related effective date specified in each Assignment and Acceptance Agreement; provided that, no partial assignment for the Facility (including any assignment among Lenders) may result in any Lender holding less than $10,000,000, provided further that, a Lender may hold an amount less than $10,000,000 but greater than $5,000,000 only if such Lender shall hold at least $10,000,000 in the aggregate of this Facility and the Multi- Year Revolving Agreement (notwithstanding the foregoing, in the event the Multi-Year Revolving Agreement is terminated, any Lender may continue to hold an amount in this Facility greater than or equal to the amount such Lender held on the date of the termination of the Multi-Year Revolving Agreement);
(iii) the parties to such assignment shall execute and deliver to Administrative Agent for its acceptance an Assignment and Acceptance Agreement in the form of EXHIBIT E hereto, together with any Notes (to the extent any Principal Debt owed to such assigning Lender is evidenced by a Note or Notes) subject to such assignment and a processing fee of $3,500, including, without limitation, any assignment between Lenders; and
(iv) so long as any Lender is an Agent under this Agreement, such Lender (or an Affiliate of such Lender) shall retain an economic interest in the Loan Documents, will not assign all of its Rights, duties, or obligations under the Loan Documents, except to an Affiliate of such Lender, and will not enter into any Assignment and Acceptance Agreement that would have the effect of such Lender assigning all of its Rights, duties, or obligations under the Loan Documents to any Person other than an Affiliate of such Lender unless such Agent has relinquished such title in accordance with SECTION 13.1 (with respect to Administrative Agent) or SECTION 13.10 (with respect to the other Agents). Upon execution, delivery, and acceptance of such Assignment and Acceptance AgreementAssumption, the assignee Assignee thereunder shall be a party hereto and, to the extent of the interest assigned by such assignmentAssignment and Assumption, have the obligations, Rights, rights and benefits obligations of a Lender under the Loan Documents this Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by such assignmentAssignment and Assumption, relinquish its Rights and be released from its obligations under this Agreement (and, in the Loan Documents. Upon the consummation case of any assignment pursuant to this Section, but only upon the request an Assignment and Assumption covering all of the assignor or assignee made through Administrative assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto but shall continue to be entitled to the benefits of Section 9.5). The Agent, Borrower shall issue appropriate Notes to the assignor and the assignee, reflecting such Assignment and Acceptance. If the assignee is not incorporated under the laws acting for this purpose as an agent of the United States of America or a state thereofBorrower, it shall deliver to Borrower and Administrative Agent certification as to exemption from deduction or withholding of Taxes in accordance with SECTION 4.6.
(c) Administrative Agent shall maintain at one of its address referred to in SECTION 14.3 offices a copy of each Assignment and Acceptance Agreement Assumption delivered to and accepted by it and a register for NBPLP CREDIT AGREEMENT the recordation of the names and addresses of the Lenders and the Commitment PercentageLenders, and principal amount of the Borrowings Loans owing to, each Lender pursuant to the terms hereof from time to time (the "REGISTER"“Register”). The entries in the Register shall be conclusive and binding for all purposes, absent manifest errorconclusive, and the Borrower, Administrative Agent the Agent, and the Lenders may treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of the Loan Documents. The Register shall be available for inspection by Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice. Upon the consummation of any assignment in accordance with this SECTION 14.13Agreement, SCHEDULE 2.1 shall automatically be deemed amended (notwithstanding notice to the extent required) by Administrative Agent to reflect the name, address, and, where appropriate, respective Committed Sums under the Facility (as the case may be) of the assignor and assignee.
(d) contrary. Upon its receipt of an a duly completed Assignment and Acceptance Agreement Assumption executed by the parties thereto, together with any Notes (to the extent any Principal Debt owed to such an assigning Lender is evidenced by and an Assignee, the Assignee’s completed administrative questionnaire (unless the Assignee shall already be a Note or Notes) subject Lender hereunder), and any written consent to such assignment and payment of required by this Section 9.6, the processing fee, Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of EXHIBIT E hereto, (i) shall accept such Assignment and Acceptance Agreement, (ii) Assumption and record the information contained therein in the Register, and (iii) give prompt notice thereof to . No assignment shall be effective for purposes of this Agreement unless it has been recorded in the parties theretoRegister as provided in this paragraph.
(eb) Subject to the provisions of this Section and in accordance with applicable Law, any Any Lender may, in without the ordinary course consent of its commercial banking business and in accordance with applicable Lawthe Borrower or the Agent, at any time sell participations to one or more Persons entities in all or a portion of such Lender’s rights and obligations under this Agreement (each including all or a "PARTICIPANT") participating interests in its portion of the Obligation. In the event of any such sale Loans owing to a Participant, it); provided that (i) such Lender shall remain a "Lender" under the Loan Documents and the Participant shall not constitute a "Lender" hereunder, (ii) such Lender's ’s obligations under the Loan Documents this Agreement shall remain unchanged, (iiiii) such Lender shall remain solely responsible to the other parties hereto for the performance thereofof such obligations and (iii) the Borrower, (iv) such Lender shall remain the holder of its share of Agent and the Principal Debt for all purposes under the Loan Documents, (v) Borrower and Administrative Agent other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender's Rights ’s rights and obligations under the Loan Documents, and (vi) this Agreement. Any agreement pursuant to which a Lender sells such a participation shall provide that such Lender shall be solely responsible for any withholding taxes or any filing or reporting requirements relating retain the sole right to such participation enforce this Agreement and shall hold Borrower and Administrative Agent and their respective successors, permitted assigns, officers, directors, employees, agents, and representatives harmless against the same. Participants shall have no Rights under the Loan Documents, other than certain voting Rights as provided below. Subject to the following, each Lender shall be entitled to obtain (on behalf of its Participants) the benefits of SECTION 4 with respect to all participations in its part of the Obligation outstanding from time to time, so long as Borrower shall not be obligated to pay any amount in excess of the amount that would be due to such Lender under SECTION 4 calculated as though no participations have been made. No Lender shall sell any participating interest under which the Participant shall have any Rights to approve any amendment, modification, modification or waiver of any Loan Documentprovision of this Agreement. Each Lender that sells a participation shall, except to acting solely for this purpose as a non-fiduciary agent of the extent such amendmentBorrower, modification, maintain a register on which it enters the name and address of each participant and the principal amounts (and stated interest) of each participant’s interest in the Loans or waiver extends the due date for payment of any amount in respect of principal (other than mandatory prepayments), interest, or fees due obligations under the Loan Documents, reduces Documents (the interest rate or the amount of principal or fees applicable to the Obligation (except such reductions as are contemplated by the Loan Documents“Participant Register”), or releases all or any substantial portion of the Guaranties under the Loan Documents; provided that, in those cases where a Participant is entitled that no Lender shall have any obligation to the benefits of SECTION 4 or a Lender grants Rights to its Participants to approve amendments to or waivers of the Loan Documents respecting the matters previously described in this sentence, such Lender must include a voting mechanism in the relevant participation agreement or agreements, as the case may be, whereby a majority of such Lender's portion of the Obligation (whether held by such Lender or Participant) shall control the vote for all of such Lender's portion of the Obligation. Except in the case of the sale of a participating interest to another Lender, the relevant participation agreement shall not permit the Participant to transfer, pledge, assign, sell participations in, or otherwise encumber its portion of the Obligation, unless the consent of the transferring Lender (which consent will not be unreasonably withheld) has been obtained. NBPLP CREDIT AGREEMENT
(f) Notwithstanding any other provision set forth in this Agreement, any Lender may, without notice to, or the consent of Borrower or Administrative Agent, at any time assign and pledge disclose all or any portion of the Participant Register (including the identity of any participant or any information relating to a participant’s interest in any commitments, loans, or its Borrowings and its Notes (other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any Principal Debt owed to such assigning Lender is evidenced by a Note or Notes) to any Federal Reserve Bank as collateral security pursuant to Regulation A and any Operating Circular issued by such Federal Reserve Bank or any Lender which is a fund may pledge all or any portion of its Borrowings and its Notes (notice to the extent any Principal Debt owed to such assigning Lender is evidenced by contrary. For the avoidance of doubt, the Agent (in its capacity as Agent) shall have no responsibility for maintaining a Note or Notes) to its trustee in support of its obligations to its trustee. No such assignment shall release the assigning Lender from its obligations hereunderParticipant Register.
(g) Any Lender may furnish any information concerning the Loan Parties in the possession of such Lender from time to time to Eligible Assignees and Participants (including prospective Eligible Assignees and Participants), subject to the provisions of SECTION 14.14.
Appears in 1 contract
Samples: Credit Agreement (Cadiz Inc)
Successors and Assigns; Assignments and Participations. (a) This The provisions of this Agreement shall be binding upon, upon and inure to the benefit of the parties hereto and their respective successors and assignsassigns permitted hereby, except that (i) Borrower the Borrowers may not, directly or indirectly, not assign or transfer, or attempt to assign or transfer, otherwise transfer any of its Rights, duties, their rights or obligations under any Loan Documents hereunder without the express prior written consent of all Lenders, the Agent (and any attempted assignment or transfer by any Borrower without such consent shall be null and void) and (ii) the Lenders may not assign or otherwise transfer its rights or obligations hereunder except as permitted NBPLP CREDIT AGREEMENT under this Sectionto an assignee (“Assignee”) without the prior written consent of the Borrowers (such consent of the Borrowers not to be unreasonably withheld or delayed), no Lender may transfer, pledge, assign, sell any participation inwhich consent shall not be required (A) during the existence of a Default or Event of Default, or otherwise encumber its portion (B) during the existence of the Obligation.
(b) Each Lender may assign to one or more Eligible Assignees all or a portion default under any material Contractual Obligation of its Rights and obligations under the Loan Documents (including, without limitation, all or a portion of its Borrowings and its Notes to the extent any Principal Debt owed to such assigning Lender is evidenced by a Note or Notes)Borrower; provided, howeverfurther, that:
, (i) each such assignment shall be other than to an Eligible Assignee;
(ii) except in the case of an assignment to another a Lender or in the case of an assignment of all Affiliate of a Lender's Rights and obligations under ), the Loan Documents, amount of Loans of the assigning Lender subject to each assignment (aggregating any such partial assignment under the Facility assignments by Affiliates) shall not be less than $5,000,000 15,000,000, unless Borrower the Borrowers and Administrative the Agent consent thereto (in their sole discretion) in writing which may be evidenced by their otherwise agree. Subject to acceptance and execution of recording thereof pursuant to this Section 9.6, from and after the related effective date specified in each Assignment and Acceptance Agreement; provided that, no partial assignment for the Facility (including any assignment among Lenders) may result in any Lender holding less than $10,000,000, provided further that, a Lender may hold an amount less than $10,000,000 but greater than $5,000,000 only if such Lender shall hold at least $10,000,000 in the aggregate of this Facility and the Multi- Year Revolving Agreement (notwithstanding the foregoing, in the event the Multi-Year Revolving Agreement is terminated, any Lender may continue to hold an amount in this Facility greater than or equal to the amount such Lender held on the date of the termination of the Multi-Year Revolving Agreement);
(iii) the parties to such assignment shall execute and deliver to Administrative Agent for its acceptance an Assignment and Acceptance Agreement in the form of EXHIBIT E hereto, together with any Notes (to the extent any Principal Debt owed to such assigning Lender is evidenced by a Note or Notes) subject to such assignment and a processing fee of $3,500, including, without limitation, any assignment between Lenders; and
(iv) so long as any Lender is an Agent under this Agreement, such Lender (or an Affiliate of such Lender) shall retain an economic interest in the Loan Documents, will not assign all of its Rights, duties, or obligations under the Loan Documents, except to an Affiliate of such Lender, and will not enter into any Assignment and Acceptance Agreement that would have the effect of such Lender assigning all of its Rights, duties, or obligations under the Loan Documents to any Person other than an Affiliate of such Lender unless such Agent has relinquished such title in accordance with SECTION 13.1 (with respect to Administrative Agent) or SECTION 13.10 (with respect to the other Agents). Upon execution, delivery, and acceptance of such Assignment and Acceptance AgreementAssumption, the assignee Assignee thereunder shall be a party hereto and, to the extent of the interest assigned by such assignmentAssignment and Assumption, have the obligations, Rights, rights and benefits obligations of a Lender under the Loan Documents this Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by such assignmentAssignment and Assumption, relinquish its Rights and be released from its obligations under this Agreement (and, in the Loan Documents. Upon the consummation case of any assignment pursuant to this Section, but only upon the request an Assignment and Assumption covering all of the assignor or assignee made through Administrative assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto but shall continue to be entitled to the benefits of Section 9.5). The Agent, Borrower shall issue appropriate Notes to the assignor and the assignee, reflecting such Assignment and Acceptance. If the assignee is not incorporated under the laws acting for this purpose as an agent of the United States of America or a state thereofBorrower, it shall deliver to Borrower and Administrative Agent certification as to exemption from deduction or withholding of Taxes in accordance with SECTION 4.6.
(c) Administrative Agent shall maintain at one of its address referred to in SECTION 14.3 offices a copy of each Assignment and Acceptance Agreement Assumption delivered to and accepted by it and a register for NBPLP CREDIT AGREEMENT the recordation of the names and addresses of the Lenders and the Commitment PercentageLenders, and principal amount of the Borrowings Loans owing to, each Lender pursuant to the terms hereof from time to time (the "REGISTER"“Register”). The entries in the Register shall be conclusive and binding for all purposes, absent manifest errorconclusive, and the Borrower, Administrative Agent the Agent, and the Lenders may treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of the Loan Documents. The Register shall be available for inspection by Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice. Upon the consummation of any assignment in accordance with this SECTION 14.13Agreement, SCHEDULE 2.1 shall automatically be deemed amended (notwithstanding notice to the extent required) by Administrative Agent to reflect the name, address, and, where appropriate, respective Committed Sums under the Facility (as the case may be) of the assignor and assignee.
(d) contrary. Upon its receipt of an a duly completed Assignment and Acceptance Agreement Assumption executed by an assigning Xxxxxx and an Assignee, the parties theretoAssignee’s completed administrative questionnaire (unless the Assignee shall already be a Lender hereunder), together with and any Notes (to the extent any Principal Debt owed to such assigning Lender is evidenced by a Note or Notes) subject written consent to such assignment and payment of required by this Section 9.6, the processing fee, Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of EXHIBIT E hereto, (i) shall accept such Assignment and Acceptance Agreement, (ii) Assumption and record the information contained therein in the Register, and (iii) give prompt notice thereof to . No assignment shall be effective for purposes of this Agreement unless it has been recorded in the parties theretoRegister as provided in this paragraph.
(eb) Subject to the provisions of this Section and in accordance with applicable Law, any Any Lender may, in without the ordinary course consent of its commercial banking business and in accordance with applicable Lawthe Borrowers or the Agent, at any time sell participations to one or more Persons entities in all or a portion of such Lender’s rights and obligations under this Agreement (each including all or a "PARTICIPANT") participating interests in its portion of the Obligation. In the event of any such sale Loans owing to a Participant, it); provided that (i) such Lender shall remain a "Lender" under the Loan Documents and the Participant shall not constitute a "Lender" hereunder, (ii) such Lender's ’s obligations under the Loan Documents this Agreement shall remain unchanged, (iiiii) such Lender shall remain solely responsible to the other parties hereto for the performance thereofof such obligations and (iii) the Borrower, (iv) such Lender shall remain the holder of its share of Agent and the Principal Debt for all purposes under the Loan Documents, (v) Borrower and Administrative Agent other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender's Rights ’s rights and obligations under the Loan Documents, and (vi) this Agreement. Any agreement pursuant to which a Lender sells such a participation shall provide that such Lender shall be solely responsible for any withholding taxes or any filing or reporting requirements relating retain the sole right to such participation enforce this Agreement and shall hold Borrower and Administrative Agent and their respective successors, permitted assigns, officers, directors, employees, agents, and representatives harmless against the same. Participants shall have no Rights under the Loan Documents, other than certain voting Rights as provided below. Subject to the following, each Lender shall be entitled to obtain (on behalf of its Participants) the benefits of SECTION 4 with respect to all participations in its part of the Obligation outstanding from time to time, so long as Borrower shall not be obligated to pay any amount in excess of the amount that would be due to such Lender under SECTION 4 calculated as though no participations have been made. No Lender shall sell any participating interest under which the Participant shall have any Rights to approve any amendment, modification, modification or waiver of any Loan Documentprovision of this Agreement. Each Lender that sells a participation shall, except to acting solely for this purpose as a non-fiduciary agent of the extent such amendmentBorrower, modification, maintain a register on which it enters the name and address of each participant and the principal amounts (and stated interest) of each participant’s interest in the Loans or waiver extends the due date for payment of any amount in respect of principal (other than mandatory prepayments), interest, or fees due obligations under the Loan Documents, reduces Documents (the interest rate or the amount of principal or fees applicable to the Obligation (except such reductions as are contemplated by the Loan Documents“Participant Register”), or releases all or any substantial portion of the Guaranties under the Loan Documents; provided that, in those cases where a Participant is entitled that no Lender shall have any obligation to the benefits of SECTION 4 or a Lender grants Rights to its Participants to approve amendments to or waivers of the Loan Documents respecting the matters previously described in this sentence, such Lender must include a voting mechanism in the relevant participation agreement or agreements, as the case may be, whereby a majority of such Lender's portion of the Obligation (whether held by such Lender or Participant) shall control the vote for all of such Lender's portion of the Obligation. Except in the case of the sale of a participating interest to another Lender, the relevant participation agreement shall not permit the Participant to transfer, pledge, assign, sell participations in, or otherwise encumber its portion of the Obligation, unless the consent of the transferring Lender (which consent will not be unreasonably withheld) has been obtained. NBPLP CREDIT AGREEMENT
(f) Notwithstanding any other provision set forth in this Agreement, any Lender may, without notice to, or the consent of Borrower or Administrative Agent, at any time assign and pledge disclose all or any portion of the Participant Register (including the identity of any participant or any information relating to a participant’s interest in any commitments, loans, or its Borrowings and its Notes (other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any Principal Debt owed to such assigning Lender is evidenced by a Note or Notes) to any Federal Reserve Bank as collateral security pursuant to Regulation A and any Operating Circular issued by such Federal Reserve Bank or any Lender which is a fund may pledge all or any portion of its Borrowings and its Notes (notice to the extent any Principal Debt owed to such assigning Lender is evidenced by contrary. For the avoidance of doubt, the Agent (in its capacity as Agent) shall have no responsibility for maintaining a Note or Notes) to its trustee in support of its obligations to its trustee. No such assignment shall release the assigning Lender from its obligations hereunderParticipant Register.
(g) Any Lender may furnish any information concerning the Loan Parties in the possession of such Lender from time to time to Eligible Assignees and Participants (including prospective Eligible Assignees and Participants), subject to the provisions of SECTION 14.14.
Appears in 1 contract
Samples: Credit Agreement (Cadiz Inc)
Successors and Assigns; Assignments and Participations. (a) This Agreement shall be binding upon, and inure to the benefit of the parties hereto and their respective successors and assigns, except that (i) Borrower may not, directly or indirectly, assign or transfer, or attempt to assign or transfer, any of its Rights, duties, or obligations under any Loan Documents without the express written consent of all Lenders, and (ii) except as permitted NBPLP CREDIT AGREEMENT under this Section, no Lender may transfer, pledge, assign, sell any participation in, or otherwise encumber its portion of the Obligation.
(b) Each Lender may assign to one or more Eligible Assignees all or a portion of its Rights and obligations under the Loan Documents (including, without limitation, all or a portion of its Borrowings and its Notes -- to the extent any Principal Debt owed to such assigning Lender is evidenced by a Note or Notes); provided, however, that:
(i) each such assignment shall be to an Eligible Assignee;
(ii) except in the case of an assignment to another Lender or an Affiliate of Lender, or in the case of an assignment of all of a Lender's Rights and obligations under the Loan Documents, any such partial assignment under the Revolver Facility shall not be less than $5,000,000 (unless Borrower and Administrative Agent consent and, unless a Default or Potential Default has occurred and is continuing, Borrower consents thereto (in their sole discretion) in writing which may be evidenced by their acceptance and execution of the related Assignment and Acceptance Agreement; ), provided that, no partial assignment for the Facility (including any assignment among Lenders) may result in any Lender holding less than $10,000,000, provided further that, 5,000,000.
(iii) each such assignment by a Lender may hold an amount less than $10,000,000 but greater than $5,000,000 only if such Lender shall hold at least $10,000,000 in be of a proportionate part of all of the aggregate of assigning Lender's Rights and obligations under this Facility Agreement and the Multi- Year Revolving Agreement Notes (notwithstanding the foregoing, in the event the Multi-Year Revolving Agreement is terminated, any Lender may continue to hold an amount in this Facility greater than or equal to the amount extent any Principal Debt owed to such assigning Lender held on the date of the termination of the Multi-Year Revolving Agreementis evidenced by a Note or Notes);
(iiiiv) the parties to such assignment shall execute and deliver to Administrative Agent for its acceptance an Assignment and Acceptance Agreement in the form of EXHIBIT E heretohereto ("ASSIGNMENT AND ACCEPTANCE"), together with any Notes (to the extent any Principal Debt owed to such assigning Lender is evidenced by a Note or Notes) subject to such assignment and a processing fee of $3,500, including, without limitation, any assignment between Lenders; and
(ivv) so long as any Lender is an Agent under this Agreement, such Lender (or an Affiliate of such Lender) shall retain an economic interest in the Loan Documents, will not assign all of its Rights, duties, or obligations under the Loan Documents, except to an Affiliate of such Lender, and will not enter into any Assignment and Acceptance Agreement that would have the effect of such Lender assigning all of its Rights, duties, or obligations under the Loan Documents to any Person other than an Affiliate of such Lender unless such Agent has relinquished such title in accordance with SECTION 13.1 12.1 (with respect to Administrative Agent) or SECTION 13.10 12.10 (with respect to the other Agents). Upon execution, delivery, and acceptance of such Assignment and Acceptance AgreementAcceptance, the assignee thereunder shall be a party hereto and, to the extent of such assignment, have the obligations, Rights, and benefits of a Lender under the Loan Documents and the assigning Lender shall, to the extent of such assignment, relinquish its Rights and be released from its obligations under the Loan Documents. Upon the consummation of any assignment pursuant to this Section, but only upon the request of the assignor or assignee made through Administrative Agent, Borrower shall issue appropriate Notes to the assignor and the assignee, reflecting such Assignment and Acceptance. If the assignee is not incorporated under the laws of the United States of America or a state thereof, it shall deliver to Borrower and Administrative Agent certification as to exemption from deduction or withholding of Taxes in accordance with SECTION 4.6.
(c) Administrative Agent shall maintain at its address referred to in SECTION 14.3 13.3 a copy of each Assignment and Acceptance Agreement delivered to and accepted by it and a register for NBPLP CREDIT AGREEMENT the recordation of the names and addresses of the Lenders and the Commitment PercentagePercentage of, Committed Sum of, and principal amount of the Borrowings Principal Debt owing to, each Lender from time to time (the "REGISTER"). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and Borrower, Administrative Agent Agent, and the Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of the Loan Documents. The Register shall be available for inspection by Borrower Borrower, or any Lender at any reasonable time and from time to time upon reasonable prior notice. Upon the consummation of any assignment in accordance with this SECTION 14.1313.13, SCHEDULE 2.1 shall automatically be deemed amended (to the extent required) by Administrative Agent to reflect the name, address, and, where appropriate, respective Committed Sums under the Facility (as the case may be) Sum of the assignor and assignee.
(d) Upon its receipt of an Assignment and Acceptance Agreement executed by the parties thereto, together with any Notes (to the extent any Principal Debt owed to such assigning Lender is evidenced by a Note or Notes) subject to such assignment and payment of the processing fee, Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of EXHIBIT E hereto, (i) accept such Assignment and Acceptance AgreementAcceptance, (ii) record the information contained therein in the Register, and (iii) give prompt notice thereof to the parties thereto.
(e) Subject to the provisions of this Section and in accordance with applicable Law, any Lender may, in the ordinary course of its commercial banking business and in accordance with applicable Law, at any time sell to one or more Persons (each a "PARTICIPANT") participating interests in its portion of the Obligation. In the event of any such sale to a Participant, (i) such Lender shall remain a "Lender" under the Loan Documents and the Participant shall not constitute a "Lender" hereunder, (ii) such Lender's obligations under the Loan Documents shall remain unchanged, (iii) such Lender shall remain solely responsible for the performance thereof, (iv) such Lender shall remain the holder of its share of the Principal Debt for all purposes under the Loan Documents, (v) Borrower and Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender's Rights and obligations under the Loan Documents, and (vi) such Lender shall be solely responsible for any withholding taxes or any filing or reporting requirements relating to such participation and shall hold Borrower and Administrative Agent and their respective successors, permitted assigns, officers, directors, employees, agents, and representatives harmless against the same. Participants shall have no Rights under the Loan Documents, other than certain voting Rights as provided below. Subject to the following, each Lender shall be entitled to obtain (on behalf of its Participants) the benefits of SECTION 4 with respect to all participations in its part of the Obligation outstanding from time to time, so long as Borrower shall not be obligated to pay any amount in excess of the amount that would be due to such Lender under SECTION 4 calculated as though no participations have been made. No Lender shall sell any participating interest under which the Participant shall have any Rights to approve any amendment, modification, or waiver of any Loan Document, except to the extent such amendment, modification, or waiver extends the due date for payment of any amount in respect of principal (other than mandatory prepayments, if any), interest, or fees due under the Loan Documents, reduces the interest rate or the amount of principal or fees applicable to the Obligation (except such reductions as are contemplated by the Loan Documents), or releases all or any substantial portion of the Guaranties under the Loan Documents(except such releases of Guaranties as are contemplated in SECTION 6.2); provided that, in those cases where a Participant is entitled to the benefits of SECTION 4 or a Lender grants Rights to its Participants to approve amendments to or waivers of the Loan Documents respecting the matters previously described in this sentence, such Lender must include a voting mechanism in the relevant participation agreement or agreements, as the case may be, whereby a majority of such Lender's portion of the Obligation (whether held by such Lender or Participant) shall control the vote for all of such Lender's portion of the Obligation. Except in the case of the sale of a participating interest to another Lender, the relevant participation agreement shall not permit the Participant to transfer, pledge, assign, sell participations in, or otherwise encumber its portion of the Obligation, unless the consent of the transferring Lender (which consent will not be unreasonably withheld) has been obtained. NBPLP CREDIT AGREEMENT.
(f) Notwithstanding any other provision set forth in this Agreement, any Lender may, without notice to, or the consent of Borrower or Administrative Agent, at any time assign and pledge all or any portion of its Borrowings and its Notes (to the extent any Principal Debt owed to such assigning Lender is evidenced by a Note or Notes) to any Federal Reserve Bank as collateral security pursuant to Regulation A and any Operating Circular issued by such Federal Reserve Bank or any Lender which is a fund may pledge all or any portion of its Borrowings and its Notes (to the extent any Principal Debt owed to such assigning Lender is evidenced by a Note or Notes) to its trustee in support of its obligations to its trustee. No such assignment shall release the assigning Lender from its obligations hereunder.
(g) Any Lender may furnish any information concerning the Loan Parties in the possession of such Lender from time to time to Eligible Assignees and Participants (including prospective Eligible Assignees and Participants), subject to the provisions of SECTION 14.14.
Appears in 1 contract
Successors and Assigns; Assignments and Participations. (a) This Facility A Agreement shall be binding upon, and inure to the benefit of the parties hereto and their respective successors and assigns, except that (i) assignments by Borrower may not, directly or indirectly, assign or transfer, or attempt are subject to assign or transfer, any the restrictions of its Rights, duties, or obligations under any Loan Documents without the express written consent of all LendersSECTION 7.16, and (ii) except as permitted NBPLP CREDIT AGREEMENT under this Section, no Facility A Lender may transfer, pledge, assign, sell any participation in, or otherwise encumber its portion of the Obligation.
(b) Each Facility A Lender may assign to one or more Eligible Assignees all or a portion of its Rights and obligations under this Facility A Agreement and the other Facility A Loan Documents Papers (including, without limitation, all or a portion of its Borrowings and Borrowings, its Notes [to the extent any such Facility A Principal Debt owed to such assigning Facility A Lender is evidenced by a Note or Notes]); provided, however, that:
(i) each such assignment shall be to an Eligible Assignee;
(ii) except in the case of an assignment to another Facility A Lender or an AMENDED AND RESTATED FACILITY A REVOLVING CREDIT AGREEMENT 63 69 assignment of all of a Facility A Lender's Rights and obligations under this Facility A Agreement and the other Facility A Loan Papers, any such partial assignment (when aggregated with the amounts of any concurrent assignments under Facility B and/or the 364-Day Facility by the assigning Lender to the same assignee) shall be in an amount at least equal to $10,000,000, but in no event shall an assigned interest in any of Facility A, Facility B, or the 364-Day Facility be less than $1,000,000 (except in the case of an assignment of all of such Facility A Lenders' interest in any such facility);
(iii) each such assignment by a Lender's Facility A Lender shall be of a constant, and not varying, percentage of all of its Rights and obligations under this Facility A Agreement and the Notes (to the extent the Facility A Principal Debt owed to the assigning Facility A Lender is evidenced by any Notes);
(iv) each such assignment shall exclude Competitive Borrowings, unless the assigning Facility A Lender is selling all of its Rights and obligations under the Facility A Loan Documents, any such partial assignment under the Facility shall not be less than $5,000,000 unless Borrower and Administrative Agent consent thereto (in their sole discretion) in writing which may be evidenced by their acceptance and execution of the related Assignment and Acceptance Agreement; provided that, no partial assignment for the Facility (including any assignment among Lenders) may result in any Lender holding less than $10,000,000, provided further that, a Lender may hold an amount less than $10,000,000 but greater than $5,000,000 only if such Lender shall hold at least $10,000,000 in the aggregate of this Facility and the Multi- Year Revolving Agreement (notwithstanding the foregoing, in the event the Multi-Year Revolving Agreement is terminated, any Lender may continue to hold an amount in this Facility greater than or equal to the amount such Lender held on the date of the termination of the Multi-Year Revolving Agreement)Papers;
(iiiv) the parties to such assignment shall execute and deliver to the Administrative Agent for its acceptance an Assignment and Acceptance Agreement in the form of EXHIBIT E hereto, together with any Notes subject to such assignment (to the extent any the Facility A Principal Debt owed to such the assigning Facility A Lender is evidenced by a Note or any Notes) subject to such assignment and a processing fee of $3,500, including, without limitation, any assignment between Lenders; and;
(ivvi) so long as no Swing Line Lender may assign any Lender is an Agent under this Agreement, such Lender (or an Affiliate of such Lender) shall retain an economic interest in the Loan Documents, will not assign all portion of its Rights, duties, or obligations under the Loan DocumentsSwing Line Subfacility and its related portion of the Revolving Commitment, except to an Affiliate unless such assignment is being made in connection with the sale of all such Swing Line Lender, 's Rights and will not enter into any Assignment and Acceptance Agreement that would have the effect of such Lender assigning all of its Rights, duties, or obligations interests under the Facility A Loan Documents to any Person other than an Affiliate of such Lender unless such Agent has relinquished such title in accordance with SECTION 13.1 (with respect to Administrative Agent) or SECTION 13.10 (with respect to the other Agents)Papers. Upon execution, delivery, and acceptance of such Assignment and Acceptance Agreement, the assignee thereunder shall be a party hereto and, to the extent of such assignment, have the obligations, Rights, and benefits of a Facility A Lender under the Facility A Loan Documents Papers and the assigning Facility A Lender shall, to the extent of such assignment, relinquish its Rights rights and be released from its obligations under the Facility A Loan DocumentsPapers. Upon the consummation of any assignment pursuant to this Section, but only upon the request of the assignor or assignee made through Administrative Agent, Borrower shall issue appropriate Notes to the assignor and the assignee, reflecting such Assignment assignment and Acceptanceacceptance. If the assignee is not incorporated under the laws of the United States of America or a state thereof, it shall deliver to Borrower and Administrative Agent certification as to exemption from deduction or withholding of Taxes in accordance with SECTION 4.63.20(D).
(c) The Administrative Agent shall maintain at its address referred to in SECTION 14.3 11.3 a copy of each Assignment and Acceptance Agreement delivered to and accepted by it and a register for NBPLP CREDIT AGREEMENT the recordation of the names and addresses of the Facility A Lenders and the Commitment PercentageFacility A Commitment, and principal amount of the Borrowings owing to, each Facility A Lender from time to time (the "REGISTER"). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and Borrower, Administrative Agent and the Facility A Lenders may treat each Person whose name is recorded in the Register as a Facility A Lender hereunder for all purposes of the Facility A Loan DocumentsPapers. The Register shall be available for inspection by Borrower or any Facility A Lender at any reasonable time and from time to time upon reasonable prior notice. Upon the consummation of any assignment in accordance AMENDED AND RESTATED FACILITY A REVOLVING CREDIT AGREEMENT 64 70 with this SECTION 14.1311.13, SCHEDULE 2.1 shall automatically be deemed amended (to the extent required) by Administrative Agent to reflect the name, address, and, where appropriate, and respective Facility A Committed Sums under the Facility (as the case may be) of the assignor and assignee.
(d) Upon its receipt of an Assignment and Acceptance Agreement executed by the parties thereto, together with any Notes subject to such assignment (to the extent any the Facility A Principal Debt owed to such the assigning Facility A Lender is evidenced by a Note or any Notes) subject to such assignment and payment of the processing fee, the Administrative Agent shall, if such Assignment assignment and Acceptance acceptance has been completed and is in substantially the form of EXHIBIT E hereto, (i) accept such Assignment and Acceptance Agreement, (ii) record the information contained therein in the Register, Register and (iii) give prompt notice thereof to the parties thereto.
(e) Subject to the provisions of this Section and in accordance with applicable Law, any Each Facility A Lender may, in the ordinary course of its commercial banking business and in accordance with applicable Law, at any time may sell participations to one or more Persons (each a "PARTICIPANT") participating interests in all or a portion of its Rights, obligations, or Rights and obligations under this Facility A Agreement and related Facility A Loan Papers (including all or a portion of its Committed Sum or its portion of the Obligation. In the event of any such sale to a ParticipantBorrowings advanced under Facility A); provided, however, that (i) such Lender shall remain a "Lender" under the Loan Documents and the Participant shall not constitute a "Lender" hereunder, (ii) such Facility A Lender's obligations under the Loan Documents this Facility A Agreement shall remain unchanged, ; (iiiii) such Lender shall remain solely responsible to the other parties hereto for the performance thereofof such obligations; (iii) the Participant shall be entitled to the benefit of the yield protection provisions contained in SECTIONS 3.15, 3.19, and 3.20 (so long as Borrower shall not be obligated to pay any amount in excess of the amount that would be due to such Facility A Lender under such Sections as though no participations have been made) and the right of set-off contained in SECTION 3.13; (iv) such Lender shall remain the holder of its share of the Principal Debt for all purposes under the Loan Documents, (v) Borrower and Administrative Agent shall continue to deal solely and directly with such Facility A Lender in connection with such Facility A Lender's Rights and obligations under this Facility A Agreement and the other Facility A Loan DocumentsPapers and such Facility A Lender shall retain the sole Right to enforce the obligations of Borrower relating to Borrowings under Facility A and its Notes (to the extent the Facility A Principal Debt owed to such Facility A Lender is evidenced by Notes) and to approve any amendment, modification, or waiver of any provision of this Agreement (other than amendments, modifications, or waivers decreasing the amount of principal of or the rate at which interest is payable on the Facility A Principal Debt, extending any scheduled principal payment date or date fixed for the payment of interest on the Facility A Principal Debt, or extending such Facility A Lender's Committed Sum); and (viv) such Facility A Lender shall be solely responsible for any withholding taxes or any filing or reporting requirements relating to such participation and shall hold Borrower and Administrative Agent and their respective successors, permitted assigns, officers, directors, employees, agents, and representatives harmless against the same. Participants shall have no Rights under the Loan Documents, other than certain voting Rights as provided below. Subject to the following, each Lender shall be entitled to obtain (on behalf of its Participants) the benefits of SECTION 4 with respect to all participations in its part of the Obligation outstanding from time to time, so long as Borrower shall not be obligated to pay any amount in excess of the amount that would be due to such Lender under SECTION 4 calculated as though no participations have been made. No Lender shall sell any participating interest under which the Participant shall have any Rights to approve any amendment, modification, or waiver of any Loan Document, except to the extent such amendment, modification, or waiver extends the due date for payment of any amount in respect of principal (other than mandatory prepayments), interest, or fees due under the Loan Documents, reduces the interest rate or the amount of principal or fees applicable to the Obligation (except such reductions as are contemplated by the Loan Documents), or releases all or any substantial portion of the Guaranties under the Loan Documents; provided that, in those cases where a Participant is entitled to the benefits of SECTION 4 or a Lender grants Rights to its Participants to approve amendments to or waivers of the Loan Documents respecting the matters previously described in this sentence, such Lender must include a voting mechanism in the relevant participation agreement or agreements, as the case may be, whereby a majority of such Lender's portion of the Obligation (whether held by such Lender or Participant) shall control the vote for all of such Lender's portion of the Obligation. Except in the case of the sale of a participating interest to another Facility A Lender, the relevant participation agreement shall not permit the Participant to transfer, pledge, assign, sell participations in, or otherwise encumber its portion of the Obligation, unless the consent of the transferring Facility A Lender (which consent will not be unreasonably withheld) has been obtained. NBPLP CREDIT AGREEMENT.
(f) Notwithstanding any other provision set forth in this Facility A Agreement, any Facility A Lender may, without notice to, or the consent of Borrower or Administrative Agent, may at any time assign and pledge all or any portion of its Borrowings and its Notes (to the extent any the Facility A Principal Debt owed to such assigning Facility A Lender is evidenced by a Note or any Notes) to any Federal Reserve Bank as collateral security pursuant to Regulation A and any Operating Circular issued by such Federal Reserve Bank or any Lender which is a fund may pledge all or any portion of its Borrowings and its Notes (to the extent any Principal Debt owed to such assigning Lender is evidenced by a Note or Notes) to its trustee in support of its obligations to its trusteeBank. No such assignment shall release the assigning Facility A Lender from its obligations hereunder.
. AMENDED AND RESTATED FACILITY A REVOLVING CREDIT AGREEMENT 65 71 (g) Any Facility A Lender may furnish any information concerning the Loan Parties Consolidated Companies in the possession of such Facility A Lender from time to time to Eligible Assignees and Participants (including prospective Eligible Assignees and Participants), subject subject, however, to the provisions of SECTION 14.1411.15 hereof.
Appears in 1 contract
Samples: Facility a Revolving Credit Agreement (Worldcom Inc /Ga/)
Successors and Assigns; Assignments and Participations. (a) This Agreement shall be binding upon, and inure to the benefit of the parties hereto and their respective successors (which shall include in the case of any Lender, any entity resulting from a merger or consolidation) and assigns, except that (i) Borrower Borrowers may not, except as otherwise permitted under the Loan Documents, directly or indirectly, assign or transfer, or attempt to assign or transfer, any of its their Rights, duties, or obligations under any Loan Documents without the express written consent of all Lenders, and (ii) except as permitted NBPLP CREDIT AGREEMENT under this Section, no Lender may transfer, pledge, assign, sell any participation in, or otherwise encumber its portion of the Obligation.
(b) Each Lender may assign to one or more Eligible Assignees all or a portion of its Rights and obligations under the Loan Documents (including, without limitation, all or a portion of its Borrowings and its Notes -- to the extent any Principal Debt owed to such assigning Lender is evidenced by a Note or Notes); provided, however, that:
(i) each such assignment shall be to an Eligible Assignee;
(ii) except in the case of an assignment to another Lender, an Affiliate of assigning Lender or an Approved Fund of any Lender, or in the case of an assignment of all of a Lender's Rights and obligations under the Loan Documents, any such partial assignment under the any Facility or Discretionary Loan shall not be less than $5,000,000 the following amounts for the Facility or Discretionary Loan indicated (unless Borrower and Administrative Agent and, unless a Default or Potential Default has occurred and is continuing, Restricted Borrowers consent thereto (in their sole discretion) in writing which may be evidenced by their acceptance and execution of the related Assignment and Acceptance Agreement; provided that, no partial assignment for the Facility (including any assignment among Lenders) may result in any Lender holding less than $10,000,000, provided further that, a Lender may hold an amount less than $10,000,000 but greater than $5,000,000 only if such Lender shall hold at least $10,000,000 in the aggregate of this Facility and the Multi- Year Revolving Agreement (notwithstanding the foregoing, in the event the Multi-Year Revolving Agreement is terminated, any Lender may continue to hold an amount in this Facility greater than or equal to the amount such Lender held on the date of the termination of the Multi-Year Revolving Agreement);
(iii) the parties to such assignment shall execute and deliver to Administrative Agent for its acceptance an Assignment and Acceptance Agreement in the form of EXHIBIT E hereto, together with any Notes (to the extent any Principal Debt owed to such assigning Lender is evidenced by a Note or Notes) subject to such assignment and a processing fee of $3,500, including, without limitation, any assignment between Lenders; and
(iv) so long as any Lender is an Agent under this Agreement, such Lender (or an Affiliate of such Lender) shall retain an economic interest in the Loan Documents, will not assign all of its Rights, duties, or obligations under the Loan Documents, except to an Affiliate of such Lender, and will not enter into any Assignment and Acceptance Agreement that would have the effect of such Lender assigning all of its Rights, duties, or obligations under the Loan Documents to any Person other than an Affiliate of such Lender unless such Agent has relinquished such title in accordance with SECTION 13.1 (with respect to Administrative Agent) or SECTION 13.10 (with respect to the other Agents). Upon execution, delivery, and acceptance of such Assignment and Acceptance Agreement, the assignee thereunder shall be a party hereto and, to the extent of such assignment, have the obligations, Rights, and benefits of a Lender under the Loan Documents and the assigning Lender shall, to the extent of such assignment, relinquish its Rights and be released from its obligations under the Loan Documents. Upon the consummation of any assignment pursuant to this Section, but only upon the request of the assignor or assignee made through Administrative Agent, Borrower shall issue appropriate Notes to the assignor and the assignee, reflecting such Assignment and Acceptance. If the assignee is not incorporated under the laws of the United States of America or a state thereof, it shall deliver to Borrower and Administrative Agent certification as to exemption from deduction or withholding of Taxes in accordance with SECTION 4.6.
(c) Administrative Agent shall maintain at its address referred to in SECTION 14.3 a copy of each Assignment and Acceptance Agreement delivered to and accepted by it and a register for NBPLP CREDIT AGREEMENT the recordation of the names and addresses of the Lenders and the Commitment Percentage, and principal amount of the Borrowings owing to, each Lender from time to time (the "REGISTER"). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and Borrower, Administrative Agent and the Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of the Loan Documents. The Register shall be available for inspection by Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice. Upon the consummation of any assignment in accordance with this SECTION 14.13, SCHEDULE 2.1 shall automatically be deemed amended (to the extent required) by Administrative Agent to reflect the name, address, and, where appropriate, respective Committed Sums under the Facility (as the case may be) of the assignor and assignee.
(d) Upon its receipt of an Assignment and Acceptance Agreement executed by the parties thereto, together with any Notes (to the extent any Principal Debt owed to such assigning Lender is evidenced by a Note or Notes) subject to such assignment and payment of the processing fee, Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of EXHIBIT E hereto, (i) accept such Assignment and Acceptance Agreement, (ii) record the information contained therein in the Register, and (iii) give prompt notice thereof to the parties thereto.
(e) Subject to the provisions of this Section and in accordance with applicable Law, any Lender may, in the ordinary course of its commercial banking business and in accordance with applicable Law, at any time sell to one or more Persons (each a "PARTICIPANT") participating interests in its portion of the Obligation. In the event of any such sale to a Participant, (i) such Lender shall remain a "Lender" under the Loan Documents and the Participant shall not constitute a "Lender" hereunder, (ii) such Lender's obligations under the Loan Documents shall remain unchanged, (iii) such Lender shall remain solely responsible for the performance thereof, (iv) such Lender shall remain the holder of its share of the Principal Debt for all purposes under the Loan Documents, (v) Borrower and Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender's Rights and obligations under the Loan Documents, and (vi) such Lender shall be solely responsible for any withholding taxes or any filing or reporting requirements relating to such participation and shall hold Borrower and Administrative Agent and their respective successors, permitted assigns, officers, directors, employees, agents, and representatives harmless against the same. Participants shall have no Rights under the Loan Documents, other than certain voting Rights as provided below. Subject to the following, each Lender shall be entitled to obtain (on behalf of its Participants) the benefits of SECTION 4 with respect to all participations in its part of the Obligation outstanding from time to time, so long as Borrower shall not be obligated to pay any amount in excess of the amount that would be due to such Lender under SECTION 4 calculated as though no participations have been made. No Lender shall sell any participating interest under which the Participant shall have any Rights to approve any amendment, modification, or waiver of any Loan Document, except to the extent such amendment, modification, or waiver extends the due date for payment of any amount in respect of principal (other than mandatory prepayments), interest, or fees due under the Loan Documents, reduces the interest rate or the amount of principal or fees applicable to the Obligation (except such reductions as are contemplated by the Loan Documents), or releases all or any substantial portion of the Guaranties under the Loan Documents; provided that, in those cases where a Participant is entitled to the benefits of SECTION 4 or a Lender grants Rights to its Participants to approve amendments to or waivers of the Loan Documents respecting the matters previously described in this sentence, such Lender must include a voting mechanism in the relevant participation agreement or agreements, as the case may be, whereby a majority of such Lender's portion of the Obligation (whether held by such Lender or Participant) shall control the vote for all of such Lender's portion of the Obligation. Except in the case of the sale of a participating interest to another Lender, the relevant participation agreement shall not permit the Participant to transfer, pledge, assign, sell participations in, or otherwise encumber its portion of the Obligation, unless the consent of the transferring Lender (which consent will not be unreasonably withheld) has been obtained. NBPLP CREDIT AGREEMENT
(f) Notwithstanding any other provision set forth in this Agreement, any Lender may, without notice to, or the consent of Borrower or Administrative Agent, at any time assign and pledge all or any portion of its Borrowings and its Notes (to the extent any Principal Debt owed to such assigning Lender is evidenced by a Note or Notes) to any Federal Reserve Bank as collateral security pursuant to Regulation A and any Operating Circular issued by such Federal Reserve Bank or any Lender which is a fund may pledge all or any portion of its Borrowings and its Notes (to the extent any Principal Debt owed to such assigning Lender is evidenced by a Note or Notes) to its trustee in support of its obligations to its trustee. No such assignment shall release the assigning Lender from its obligations hereunder.
(g) Any Lender may furnish any information concerning the Loan Parties in the possession of such Lender from time to time to Eligible Assignees and Participants (including prospective Eligible Assignees and Participants), subject to the provisions of SECTION 14.14.):
Appears in 1 contract
Successors and Assigns; Assignments and Participations. (a) This Agreement shall be binding upon, and inure to the benefit of the parties hereto and their respective successors and assigns, except that (i) Borrower may not, directly or indirectly, assign or transfer, or attempt to assign or transfer, any of its Rights, duties, or obligations under any Loan Documents without the express written consent of all Lenders, and (ii) except as permitted NBPLP CREDIT AGREEMENT under this Section, no Lender may transfer, pledge, assign, sell any participation in, or otherwise encumber its portion of the Obligation.
(b) Each Lender may at any time assign to one or more Eligible Assignees all or a portion of its Rights rights and obligations under the Loan Documents (including, without limitation, delegate all or a portion of its Borrowings obligations under this Agreement and the other Loan Documents (including all its Notes rights and obligations with respect to the extent any Principal Debt owed Loans) to one or more Persons (a "TRANSFEREE"); PROVIDED, that such Transferee and such assigning Lender is evidenced by a Note or Notes); provided, however, that:
(i) each such assignment shall be to an Eligible Assignee;
(ii) except in the case of an assignment to another Lender or in the case of an assignment of all of a Lender's Rights and obligations under the Loan Documents, any such partial assignment under the Facility shall not be less than $5,000,000 unless Borrower and Administrative Agent consent thereto (in their sole discretion) in writing which may be evidenced by their acceptance and execution of the related Assignment and Acceptance Agreement; provided that, no partial assignment for the Facility (including any assignment among Lenders) may result in any Lender holding less than $10,000,000, provided further that, a Lender may hold an amount less than $10,000,000 but greater than $5,000,000 only if such Lender shall hold at least $10,000,000 in the aggregate of this Facility and the Multi- Year Revolving Agreement (notwithstanding the foregoing, in the event the Multi-Year Revolving Agreement is terminated, any Lender may continue to hold an amount in this Facility greater than or equal to the amount such Lender held on the date of the termination of the Multi-Year Revolving Agreement);
(iii) the parties to such assignment shall execute and deliver to Administrative Agent for its acceptance an Assignment and Acceptance Agreement recording in the Register, a Lender Addition Agreement, substantially in the form of EXHIBIT E heretoC; PROVIDED FURTHER, together with that any Notes (to the extent any Principal Debt owed to such assigning Lender is evidenced by a Note or Notes) subject to such assignment and shall be in a processing fee Commitment amount of at least $3,500, including, without limitation, any assignment between Lenders; and
(iv) so long as any Lender is an Agent under this Agreement, such Lender 1,000,000 (or an Affiliate such lesser amount if such amount is a complete assignment of all of such Lender) shall retain an economic interest in the Loan Documents, will not assign all of its Rights, duties, or obligations under the Loan Documents, except to an Affiliate of such Lender, and will not enter into any Assignment and Acceptance Agreement that would have the effect of such Lender assigning all of its Rights, duties, or obligations under the Loan Documents to any Person other than an Affiliate of such Lender unless such Agent has relinquished such title in accordance with SECTION 13.1 (with respect to Administrative Agent) or SECTION 13.10 (with respect to the other Agents's Commitment). Upon such execution, delivery, acceptance and acceptance of recording, from and after the effective date determined pursuant to such Assignment and Acceptance Agreement, Lender Addition
(i) the assignee Transferee thereunder shall be a party hereto and, to the extent of provided in such assignmentLender Addition Agreement, have the obligationssame rights, Rights, benefits and benefits of obligations as it would if it were a Lender under the Loan Documents and the assigning Lender shall, to the extent of such assignment, relinquish its Rights and be released from its obligations under the Loan Documents. Upon the consummation of any assignment pursuant to this Section, but only upon the request of the assignor or assignee made through Administrative Agent, Borrower shall issue appropriate Notes to the assignor and the assignee, reflecting such Assignment and Acceptance. If the assignee is not incorporated under the laws of the United States of America or a state thereof, it shall deliver to Borrower and Administrative Agent certification as to exemption from deduction or withholding of Taxes in accordance with SECTION 4.6.
(c) Administrative Agent shall maintain at its address referred to in SECTION 14.3 a copy of each Assignment and Acceptance Agreement delivered to and accepted by it and a register for NBPLP CREDIT AGREEMENT the recordation of the names and addresses of the Lenders and the Commitment Percentage, and principal amount of the Borrowings owing to, each Lender from time to time (the "REGISTER"). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and Borrower, Administrative Agent and the Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of the Loan Documents. The Register shall be available for inspection by Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice. Upon the consummation of any assignment in accordance with this SECTION 14.13, SCHEDULE 2.1 shall automatically be deemed amended (to the extent required) by Administrative Agent to reflect the name, address, and, where appropriate, respective Committed Sums under the Facility (as the case may be) of the assignor and assignee.
(d) Upon its receipt of an Assignment and Acceptance Agreement executed by the parties thereto, together with any Notes (to the extent any Principal Debt owed to such assigning Lender is evidenced by a Note or Notes) subject to such assignment and payment of the processing fee, Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of EXHIBIT E hereto, (i) accept such Assignment and Acceptance Agreement, (ii) record the information contained therein in the Register, and (iii) give prompt notice thereof to the parties thereto.
(e) Subject to the provisions of this Section and in accordance with applicable Law, any Lender may, in the ordinary course of its commercial banking business and in accordance with applicable Law, at any time sell to one or more Persons (each a "PARTICIPANT") participating interests in its portion of the Obligation. In the event of any such sale to a Participant, (i) such Lender shall remain a "Lender" under the Loan Documents and the Participant shall not constitute a "Lender" hereunder, (ii) such Lender's obligations under the Loan Documents shall remain unchanged, (iii) such Lender shall remain solely responsible for the performance thereof, (iv) such Lender shall remain the holder of its share of the Principal Debt for all purposes under the Loan Documents, (v) Borrower and Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender's Rights and obligations under the Loan Documents, and (vi) such assigning Lender shall be solely responsible for any withholding taxes or any filing or reporting requirements relating to such participation and shall hold Borrower and Administrative Agent and their respective successors, permitted assigns, officers, directors, employees, agents, and representatives harmless against the same. Participants shall have no Rights under the Loan Documents, other than certain voting Rights as provided below. Subject to the following, each Lender shall be entitled to obtain (on behalf relieved of its Participants) the benefits of SECTION 4 obligations hereunder with respect to all participations in its part of the Obligation outstanding from time to time, so long as Borrower shall not be obligated to pay any amount in excess of the amount that would be due to such Lender under SECTION 4 calculated as though no participations have been made. No Lender shall sell any participating interest under which the Participant shall have any Rights to approve any amendment, modification, Commitment or waiver of any Loan Document, except to the extent such amendment, modification, or waiver extends the due date for payment of any amount in respect of principal (other than mandatory prepayments), interest, or fees due under the Loan Documents, reduces the interest rate or the amount of principal or fees applicable to the Obligation (except such reductions as are contemplated by the Loan Documents), or releases all or any substantial assigned portion of the Guaranties under the Loan Documents; provided that, in those cases where a Participant is entitled to the benefits of SECTION 4 or a Lender grants Rights to its Participants to approve amendments to or waivers of the Loan Documents respecting the matters previously described in this sentence, such Lender must include a voting mechanism in the relevant participation agreement or agreementsthereof, as the case may be, whereby a majority of to the extent that such Lender's portion of obligations shall have been expressly assumed by the Obligation (whether held by Transferee pursuant to such Lender or Participant) shall control the vote for all of such Lender's portion of the Obligation. Except Addition Agreement (and, in the case of a Lender Addition Agreement covering all or the sale of a participating interest to another Lender, the relevant participation agreement shall not permit the Participant to transfer, pledge, assign, sell participations in, or otherwise encumber its remaining portion of the Obligation, unless the consent of the transferring Lender (which consent will not be unreasonably withheld) has been obtained. NBPLP CREDIT AGREEMENT
(f) Notwithstanding any other provision set forth in an assigning Lender's rights and obligations under this Agreement, any Lender may, without notice to, or the consent of Borrower or Administrative Agent, at any time assign and pledge all or any portion of its Borrowings and its Notes (to the extent any Principal Debt owed to such assigning Lender is evidenced by shall cease to be a Note or Notes) party hereto but shall nevertheless continue to any Federal Reserve Bank as collateral security pursuant to Regulation A and any Operating Circular issued by such Federal Reserve Bank or any Lender which is a fund may pledge all or any portion of its Borrowings and its Notes (be entitled to the extent any Principal Debt owed to such assigning Lender is evidenced by a Note or Notes) to its trustee in support of its obligations to its trustee. No such assignment shall release the assigning Lender from its obligations hereunder.
(g) Any Lender may furnish any information concerning the Loan Parties in the possession of such Lender from time to time to Eligible Assignees and Participants (including prospective Eligible Assignees and Participants), subject to the provisions benefits of SECTION 14.1412.
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (Gardenburger Inc)
Successors and Assigns; Assignments and Participations. (a) This Agreement shall be binding upon, and inure to the benefit of the parties hereto and their respective successors and assigns, except that (i) assignments by Borrower may not, directly or indirectly, assign or transfer, or attempt are subject to assign or transfer, any the restrictions of its Rights, duties, or obligations under any Loan Documents without the express written consent of all LendersSECTION 7.16, and (ii) except as permitted NBPLP CREDIT AGREEMENT under this Section, no Lender may transfer, pledge, assign, sell any participation in, or otherwise encumber its portion of the Obligation.
(b) Each Lender may assign to one or more Eligible Assignees all or a portion of its Rights and obligations under this Agreement and the other Loan Documents Papers (including, without limitation, all or a portion of its Borrowings and Borrowings, its Notes [to the extent any such Principal Debt owed to such assigning Lender is evidenced by a Note or Notes]); provided, however, that:
(i) each such assignment shall be to an Eligible Assignee;
(ii) except in the case of an assignment to another Lender or in the case of an assignment of all of a Lender's Rights and obligations under this Agreement and the other Loan DocumentsPapers, any such partial assignment (when aggregated with the amounts of any concurrent assignments under Facility A by the assigning Lender to the same assignee) shall be in an amount at least equal to $10,000,000, but in no event shall an assigned interest in either Facility shall not A or the 364- Day Facility be less than $5,000,000 unless Borrower and Administrative Agent consent thereto 1,000,000 (except in their sole discretion) in writing which may be evidenced by their acceptance and execution case of the related Assignment and Acceptance Agreement; provided that, no partial an assignment for the of all of such 364-Day Facility (including any assignment among Lenders) may result Lender's interest in any Lender holding less than $10,000,000, provided further that, a Lender may hold an amount less than $10,000,000 but greater than $5,000,000 only if such Lender shall hold at least $10,000,000 in the aggregate of this Facility and the Multi- Year Revolving Agreement (notwithstanding the foregoing, in the event the Multi-Year Revolving Agreement is terminated, any Lender may continue to hold an amount in this Facility greater than or equal to the amount such Lender held on the date of the termination of the Multi-Year Revolving Agreementfacility);
(iii) each such assignment by a Lender shall be of a constant, and not varying, percentage of all of its Rights and obligations under this Agreement and the Notes (to the extent the Principal Debt owed to the assigning Lender is evidenced by any Notes); provided, that notwithstanding the foregoing, assignment of any Rights and obligations of any Swing Line Lender under the Swing Line Subfacility shall be governed by SECTION 11.13(B)(VI);
(iv) each such assignment shall exclude Competitive Borrowings, unless the assigning Lender is selling all of its Rights and obligations under the Loan Papers;
(v) the parties to such assignment shall execute and deliver to the Administrative Agent for its acceptance an Assignment and Acceptance Agreement in the form of EXHIBIT E hereto, together with any Notes subject to such assignment (to the extent any the Principal Debt owed to such the assigning Lender is evidenced by a Note or any Notes) subject to such assignment and a processing fee of $3,500, including, without limitation, any assignment between Lenders; and;
(ivvi) so long as no Swing Line Lender may assign any Lender is an Agent under this Agreement, such Lender (or an Affiliate of such Lender) shall retain an economic interest in the Loan Documents, will not assign all portion of its Rights, duties, or obligations under the Loan DocumentsSwing Line Subfacility and its related portion of the Commitment, except to an Affiliate unless such assignment is being made in connection with the sale of all such Swing Line Lender, 's Rights and will not enter into any Assignment and Acceptance Agreement that would have the effect of such Lender assigning all of its Rights, duties, or obligations interests under the Loan Documents to any Person other than an Affiliate of such Lender unless such Agent has relinquished such title in accordance with SECTION 13.1 (with respect to Administrative Agent) or SECTION 13.10 (with respect to the other Agents)Papers. AMENDED AND RESTATED 364-DAY REVOLVING CREDIT AND TERM LOAN AGREEMENT Upon execution, delivery, and acceptance of such Assignment and Acceptance Agreement, the assignee thereunder shall be a party hereto and, to the extent of such assignment, have the obligations, Rights, and benefits of a Lender under the Loan Documents Papers and the assigning Lender shall, to the extent of such assignment, relinquish its Rights rights and be released from its obligations under the Loan DocumentsPapers. Upon the consummation of any assignment pursuant to this Section, but only upon the request of the assignor or assignee made through Administrative Agent, Borrower shall issue appropriate Notes to the assignor and the assignee, reflecting such Assignment assignment and Acceptanceacceptance. If the assignee is not incorporated under the laws of the United States of America or a state thereof, it shall deliver to Borrower and Administrative Agent certification as to exemption from deduction or withholding of Taxes in accordance with SECTION 4.63.20(d).
(c) The Administrative Agent shall maintain at its address referred to in SECTION 14.3 11.3 a copy of each Assignment and Acceptance Agreement delivered to and accepted by it and a register for NBPLP CREDIT AGREEMENT the recordation of the names and addresses of the Lenders and the Commitment PercentageCommitment, and principal amount of the Borrowings owing to, each Lender from time to time (the "REGISTER"). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and Borrower, Administrative Agent and the Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of the Loan DocumentsPapers. The Register shall be available for inspection by Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice. Upon the consummation of any assignment in accordance with this SECTION 14.1311.13, SCHEDULE 2.1 AND SCHEDULE 2.2 shall automatically be deemed amended (to the extent required) by Administrative Agent to reflect the name, address, and, where appropriate, and respective Committed Sums under the Facility (as the case may be) of the assignor and assignee.
(d) Upon its receipt of an Assignment and Acceptance Agreement executed by the parties thereto, together with any Notes subject to such assignment (to the extent any the Principal Debt owed to such the assigning Lender is evidenced by a Note or any Notes) subject to such assignment and payment of the processing fee, the Administrative Agent shall, if such Assignment assignment and Acceptance acceptance has been completed and is in substantially the form of EXHIBIT E hereto, (i) accept such Assignment and Acceptance Agreement, (ii) record the information contained therein in the Register, Register and (iii) give prompt notice thereof to the parties thereto.
(e) Subject to the provisions of this Section and in accordance with applicable Law, any Each Lender may, in the ordinary course of its commercial banking business and in accordance with applicable Law, at any time may sell participations to one or more Persons (each a "PARTICIPANT") participating interests in all or a portion of its Rights, obligations, or Rights and obligations under this Agreement and related Loan Papers (including all or a portion of its Committed Sum or its portion of the Obligation. In the event of any such sale to a ParticipantBorrowings advanced under this Agreement); provided, however, that (i) such Lender shall remain a "Lender" under the Loan Documents and the Participant shall not constitute a "Lender" hereunder, (ii) such Lender's obligations under the Loan Documents this Agreement shall remain unchanged, ; (iiiii) such Lender shall remain solely responsible to the other parties hereto for the performance thereofof such obligations; (iii) the Participant shall be entitled to the benefit of the yield protection provisions contained in SECTIONS 3.15, 3.19, and 3.20 (so long as Borrower shall not be obligated to pay any amount in excess of the amount that would be due to such Lender under such Sections as though no participations have been made) and the right of set-off contained in SECTION 3.13; (iv) such Lender shall remain the holder of its share of the Principal Debt for all purposes under the Loan Documents, (v) Borrower and Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender's Rights and obligations under this Agreement and the other Loan DocumentsPapers and such Lender shall retain the sole Right to enforce the obligations of Borrower relating to Borrowings under this Agreement and its Notes (to the extent the Principal Debt owed to such Lender is evidenced by Notes) and to approve any amendment, modification, or waiver of any provision of this Agreement (other than amendments, modifications, or waivers decreasing the amount of principal of or the rate at which interest is payable on the Principal Debt, extending any scheduled principal payment date or date fixed for the payment of interest on the Principal Debt, or extending such Lender's Committed Sum); and (viv) such Lender shall be solely responsible for any withholding taxes or any filing or reporting requirements relating to such participation and shall hold Borrower and Administrative Agent and their respective successors, permitted assigns, officers, directors, employees, agents, and AMENDED AND RESTATED 364-DAY REVOLVING CREDIT AND TERM LOAN AGREEMENT representatives harmless against the same. Participants shall have no Rights under the Loan Documents, other than certain voting Rights as provided below. Subject to the following, each Lender shall be entitled to obtain (on behalf of its Participants) the benefits of SECTION 4 with respect to all participations in its part of the Obligation outstanding from time to time, so long as Borrower shall not be obligated to pay any amount in excess of the amount that would be due to such Lender under SECTION 4 calculated as though no participations have been made. No Lender shall sell any participating interest under which the Participant shall have any Rights to approve any amendment, modification, or waiver of any Loan Document, except to the extent such amendment, modification, or waiver extends the due date for payment of any amount in respect of principal (other than mandatory prepayments), interest, or fees due under the Loan Documents, reduces the interest rate or the amount of principal or fees applicable to the Obligation (except such reductions as are contemplated by the Loan Documents), or releases all or any substantial portion of the Guaranties under the Loan Documents; provided that, in those cases where a Participant is entitled to the benefits of SECTION 4 or a Lender grants Rights to its Participants to approve amendments to or waivers of the Loan Documents respecting the matters previously described in this sentence, such Lender must include a voting mechanism in the relevant participation agreement or agreements, as the case may be, whereby a majority of such Lender's portion of the Obligation (whether held by such Lender or Participant) shall control the vote for all of such Lender's portion of the Obligation. Except in the case of the sale of a participating interest to another Lender, the relevant participation agreement shall not permit the Participant to transfer, pledge, assign, sell participations in, or otherwise encumber its portion of the Obligation, unless the consent of the transferring Lender (which consent will not be unreasonably withheld) has been obtained. NBPLP CREDIT AGREEMENT.
(f) Notwithstanding any other provision set forth in this Agreement, any Lender may, without notice to, or the consent of Borrower or Administrative Agent, may at any time assign and pledge all or any portion of its Borrowings and its Notes (to the extent any the Principal Debt owed to such assigning Lender is evidenced by a Note or any Notes) to any Federal Reserve Bank as collateral security pursuant to Regulation A and any Operating Circular issued by such Federal Reserve Bank or any Lender which is a fund may pledge all or any portion of its Borrowings and its Notes (to the extent any Principal Debt owed to such assigning Lender is evidenced by a Note or Notes) to its trustee in support of its obligations to its trusteeBank. No such assignment shall release the assigning Lender from its obligations hereunder.
(g) Any Lender may furnish any information concerning the Loan Parties Consolidated Companies in the possession of such Lender from time to time to Eligible Assignees and Participants (including prospective Eligible Assignees and Participants), subject, however, to the provisions of SECTION 11.15 hereof.
(h) Notwithstanding anything to the contrary contained herein, any Lender may grant (a "GRANTING BANK") to a special purpose funding vehicle (an "SPC"), identified as such in writing from time to time by the Granting Bank to Administrative Agent and Borrower, the option to provide to Borrower all or any part of any Borrowing that such Granting Bank would otherwise be obligated to make to Borrower pursuant to this Agreement; provided that (i) nothing herein shall constitute a commitment by any SPC to make any Borrowing, (ii) if an SPC elects not to exercise such option or otherwise fails to provide all or any part of such Borrowing, Granting Bank shall be obligated to make such Borrowing pursuant to the terms hereof, (iii) such Granting Bank's obligations under this Agreement shall remain unchanged, and (iv) such Granting Bank shall remain solely responsible to the other parties hereto for the performance of obligations hereunder. The making of a Borrowing by an SPC hereunder shall utilize the Committed Sum of Granting Bank to the same extent, and as if, such Borrowing were made by such Granting Bank. Each party hereto hereby agrees that no SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the Granting Bank). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior indebtedness of any SPC, it will not institute against, or join any other Person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any state thereof. In addition, notwithstanding anything to the contrary contained in this paragraph, any SPC may (i) without paying any processing fee therefor, assign all or a portion of its interests in any Borrowing to the Granting Bank (with notice to, but without the prior written consent of Borrower and Administrative Agent) or to any financial institutions (with notice to and the prior written consent of Borrower and Administrative Agent), in each case providing liquidity and/or credit support to or for the account of such SPC to support the funding or maintenance of Borrowing and (ii) disclose on a confidential basis any non-public information relating to its Borrowing to any rating agency, commercial paper dealer or provider of any surety, guarantee or credit or liquidity enhancement to such SPC, subject to the provisions of SECTION 14.1411.15 hereof.
Appears in 1 contract
Samples: 364 Day Revolving Credit and Term Loan Agreement (Mci Worldcom Inc)
Successors and Assigns; Assignments and Participations. (a) This The provisions of this Agreement shall be binding upon, upon and inure to the benefit of the parties hereto and their respective successors and assignsassigns permitted hereby, except that (i) no Borrower may not, directly or indirectly, assign or transfer, or attempt to assign or transfer, otherwise transfer any of its Rights, duties, or obligations under any Loan Documents Rights hereunder without the express prior written consent of all Lenderseach Lender (and any attempted assignment or transfer by any Borrower without such consent shall be null and void). Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and (iiassigns permitted hereby, and, to the extent expressly contemplated hereby, Indemnified Parties) except as permitted NBPLP CREDIT AGREEMENT under this Sectionany legal or equitable right, no Lender may transfer, pledge, assign, sell any participation inremedy, or otherwise encumber its portion claim under or by reason of the Obligationthis Agreement.
(b) Each Any Lender may assign to one or more Eligible Assignees all or a portion of its Rights and obligations under the Loan Documents this Agreement (including, without limitation, including all or a portion of its Commitment and Borrowings and its Notes (including for purposes of this Section 13.11(b) participation in the LC Exposure) at the time owing to the extent any Principal Debt owed to such assigning Lender is evidenced by a Note or Notesit); provided, however, that:
provided that (i) each such assignment shall be to an Eligible Assignee;
(ii) except in the case of an assignment of the entire remaining amount of the assigning Lender’s Commitment and Borrowings at the time owing to another Lender it or in the case of an assignment of all to a Lender or an Affiliate of a Lender or an Approved Fund with respect to a Lender's Rights , the aggregate amount of the Total Commitment (which for this purpose includes Borrowings outstanding thereunder) subject to each such assignment, determined as of the date the Assignment and obligations under the Loan DocumentsAcceptance Agreement with respect to such assignment is delivered to Administrative Agent, any such partial assignment under the Facility shall not be less than $5,000,000 10,000,000 unless Borrower and each of Administrative Agent and, so long as no Default has occurred and is continuing, Borrowers otherwise consent thereto (in their sole discretioneach such consent not to be unreasonably withheld or delayed), (ii) in writing which may be evidenced by their acceptance and execution of the related Assignment and Acceptance Agreement; provided that, no each partial assignment for shall be made as an assignment of a proportionate part of all the Facility (including any assignment among Lenders) may result in any Lender holding less than $10,000,000, provided further that, a Lender may hold an amount less than $10,000,000 but greater than $5,000,000 only if such Lender shall hold at least $10,000,000 in the aggregate of assigning Lender’s rights under this Facility and the Multi- Year Revolving Agreement (notwithstanding the foregoing, in the event the Multi-Year Revolving Agreement is terminated, any Lender may continue to hold an amount in this Facility greater than or equal with respect to the amount such Lender held on the date of the termination of the Multi-Year Revolving Agreement);
Total Commitment and Borrowings assigned, (iii) the parties to such each assignment shall execute and deliver to Administrative Agent for its acceptance an Assignment and Acceptance Agreement in the form of EXHIBIT E heretoAgreement, together with any Notes (to the extent any Principal Debt owed to such assigning Lender is evidenced by a Note or Notes) subject to such assignment and a processing and recordation fee of $3,500, including, without limitation, any assignment between Lenders; and
and (iv) so long as any the assignee Lender, if it is not a Lender is an Agent under this Agreement, such Lender (or an Affiliate prior to the effectiveness of such Lender) assignment, shall retain deliver an economic interest in the Loan Documents, will not assign all of its Rights, duties, or obligations under the Loan Documents, except to an Affiliate of such Lender, and will not enter into any Assignment and Acceptance Agreement that would have the effect of such Lender assigning all of its Rights, duties, or obligations under the Loan Documents to any Person other than an Affiliate of such Lender unless such Agent has relinquished such title in accordance with SECTION 13.1 (with respect administrative questionnaire to Administrative Agent) or SECTION 13.10 (with respect . Subject to acceptance and recording thereof by Administrative Agent pursuant to Section 13.11(c), from and after the other Agents). Upon execution, delivery, and acceptance of such effective date specified in each Assignment and Acceptance Agreement, the assignee Eligible Assignee thereunder shall be a party hereto and, to the extent of the interest assigned by such assignmentAssignment and Acceptance Agreement, have the obligations, Rights, and benefits Rights of a Lender under the Loan Documents this Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by such assignmentAssignment and Acceptance Agreement, relinquish its Rights and be released from its obligations under this Agreement (and, in the Loan Documentscase of an Assignment and Acceptance Agreement covering all of the assigning Lender’s rights under this Agreement, such Lender shall cease to be a party hereto but shall continue to be entitled to the benefits of Sections 3.18, 3.19, and 7.12). Upon the consummation of any assignment pursuant to this Sectionrequest, but only upon the request of the assignor Borrowers shall execute and deliver new or assignee made through Administrative Agent, Borrower shall issue appropriate replacement Notes to the assignor assigning Lender and the assignee, reflecting assignee Lender. Any assignment or transfer by a Lender of rights under this Agreement that does not comply with this Section 13.11(b) shall be treated for purposes of this Agreement as a sale by such Assignment and Acceptance. If the assignee is not incorporated under the laws Lender of the United States of America or a state thereof, it shall deliver to Borrower and Administrative Agent certification as to exemption from deduction or withholding of Taxes participation in such rights in accordance with SECTION 4.6Section 13.11(d).
(c) Administrative Agent Agent, acting solely for this purpose as an agent of Borrowers, shall maintain at its address referred to in SECTION 14.3 Administrative Agent’s Office a copy of each Assignment and Acceptance Agreement delivered to and accepted by it and a register for NBPLP CREDIT AGREEMENT the recordation of the names and addresses of the Lenders Lenders, and the Commitment PercentageCommitments of, and principal amount of the Borrowings and LC Exposure owing to, each Lender pursuant to the terms hereof from time to time (the "REGISTER"“Register”). The entries in the Register shall be conclusive and binding for all purposes, absent manifest errorconclusive, and Borrower, Administrative Agent Borrowers and the Lenders Credit Parties may treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the Loan Documents. contrary, The Register shall be available for inspection by Borrower or Borrowers and any Lender Credit Party, at any reasonable time and from time tune to time upon reasonable prior notice. Upon the consummation of any assignment in accordance with this SECTION 14.13, SCHEDULE 2.1 shall automatically be deemed amended (to the extent required) by Administrative Agent to reflect the name, address, and, where appropriate, respective Committed Sums under the Facility (as the case may be) of the assignor and assignee.
(d) Upon its receipt of an Assignment and Acceptance Agreement executed by the parties thereto, together with any Notes (to the extent any Principal Debt owed to such assigning Lender is evidenced by a Note or Notes) subject to such assignment and payment of the processing fee, Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of EXHIBIT E hereto, (i) accept such Assignment and Acceptance Agreement, (ii) record the information contained therein in the Register, and (iii) give prompt notice thereof to the parties thereto.
(e) Subject to the provisions of this Section and in accordance with applicable Law, any Any Lender may, without the consent of or notice to, Borrowers or Administrative Agent, sell participation to one (1) or more Eligible Assignees (a “Participant”) in all or a portion of such Lender’s rights under this Agreement (including all or a portion of its Commitment and/or the Borrowings (including such Lender’s participations in the ordinary course of its commercial banking business and in accordance with applicable Law, at any time sell LC Exposure) owing to one or more Persons (each a "PARTICIPANT") participating interests in its portion of the Obligation. In the event of any such sale to a Participant, it); provided that (i) such Lender shall remain a "Lender" under the Loan Documents and the Participant shall not constitute a "Lender" hereunder, (ii) such Lender's ’s obligations under the Loan Documents this Agreement shall remain unchanged, (iiiii) such Lender shall remain solely responsible to the other parties hereto for the performance thereofof such obligations, and (iviii) such Lender shall remain Borrowers, Administrative Agent, and the holder of its share of the Principal Debt for all purposes under the Loan Documents, (v) Borrower and Administrative Agent other Credit Parties shall continue to deal solely and directly with such Lender in connection with such Lender's Rights and obligations ’s rights under the Loan Documents, and (vi) this Agreement. Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall be solely responsible for any withholding taxes or any filing or reporting requirements relating retain the sole right to such participation enforce this Agreement and shall hold Borrower and Administrative Agent and their respective successors, permitted assigns, officers, directors, employees, agents, and representatives harmless against the same. Participants shall have no Rights under the Loan Documents, other than certain voting Rights as provided below. Subject to the following, each Lender shall be entitled to obtain (on behalf of its Participants) the benefits of SECTION 4 with respect to all participations in its part of the Obligation outstanding from time to time, so long as Borrower shall not be obligated to pay any amount in excess of the amount that would be due to such Lender under SECTION 4 calculated as though no participations have been made. No Lender shall sell any participating interest under which the Participant shall have any Rights to approve any amendment, modification, or waiver of any Loan Documentprovision of this Agreement; provided that such agreement or instrument may provide that such Lender will not, except without the consent of the Participant, agree to the extent such any amendment, modificationwaiver, or waiver extends the due other modification that would (A) postpone any date for upon which any payment of any amount in respect of principal money is scheduled to be paid to such Participant, (other than mandatory prepayments)B) reduce the principal, interest, fees, or fees due under the Loan Documentsother amounts payable to such Participant, reduces the interest rate or the amount of principal or fees applicable to the Obligation (C) release any guarantor (except such reductions as are contemplated by the Loan Documentsexpressly provided in Sections 4.2(g) and 4.6) or all or substantially all of any collateral. Subject to Section 13.11(e), or releases all or any substantial portion of the Guaranties under the Loan Documents; provided that, in those cases where a Borrowers agree that each Participant is shall be entitled to the benefits of SECTION 4 or Sections 3.14, 3.18, and 3.19 to the same extent as if it were a Lender grants Rights and had acquired its interest by assignment pursuant to its Participants Section 13.11(b). To the extent permitted by law, each Participant also shall be entitled to approve amendments to or waivers the benefits of the Loan Documents respecting the matters previously described in this sentence, such Lender must include Section 3.12(a) as though it were a voting mechanism in the relevant participation agreement or agreements, as the case may be, whereby a majority of such Lender's portion of the Obligation (whether held by such Lender or Participant) shall control the vote for all of such Lender's portion of the Obligation. Except in the case of the sale of a participating interest to another Lender, the relevant participation agreement shall not permit the provided that such Participant agrees to transfer, pledge, assign, sell participations in, or otherwise encumber its portion of the Obligation, unless the consent of the transferring Lender (which consent will not be unreasonably withheldsubject to Section 3.12(b) has been obtained. NBPLP CREDIT AGREEMENT
(f) Notwithstanding any other provision set forth in this Agreement, any Lender may, without notice to, or the consent of Borrower or Administrative Agent, at any time assign and pledge all or any portion of its Borrowings and its Notes (to the extent any Principal Debt owed to such assigning Lender is evidenced by as though it were a Note or Notes) to any Federal Reserve Bank as collateral security pursuant to Regulation A and any Operating Circular issued by such Federal Reserve Bank or any Lender which is a fund may pledge all or any portion of its Borrowings and its Notes (to the extent any Principal Debt owed to such assigning Lender is evidenced by a Note or Notes) to its trustee in support of its obligations to its trustee. No such assignment shall release the assigning Lender from its obligations hereunderLender.
(ge) Any A Participant shall not be entitled to receive any greater payment under Section 3.14, 3.18 or Section 3.19 than the applicable Lender may furnish any information concerning the Loan Parties in the possession of such Lender from time would have been entitled to time to Eligible Assignees and Participants (including prospective Eligible Assignees and Participants), subject receive with respect to the provisions participation sold to such Participant. A Participant that would be a foreign Lender if it were a Lender shall not be entitled to the benefits of SECTION 14.14Section 3.14 or 3.19 unless Borrowers are notified of the participation sold to such Participant and such Participant agrees, for the benefit of Borrowers, to comply with Section 3.19(d) as though it were a Lender.
Appears in 1 contract
Successors and Assigns; Assignments and Participations. (a) This The provisions of this Agreement shall be binding upon, upon and inure to the benefit of the parties hereto (including, to the extent set forth herein, the Related Parties of the parties hereto) and their respective successors and assignsassigns permitted hereby, except that (i) the Borrower may not, directly or indirectly, not assign or transfer, or attempt to assign or transfer, otherwise transfer any of its Rights, duties, rights or obligations under any Loan Documents hereunder without the express prior written consent of all Lenders, each Lender (and any attempted assignment or transfer by the Borrower without such consent shall be null and void) and (ii) except as permitted NBPLP CREDIT AGREEMENT under this Section, no Lender may transfer, pledge, assign, sell any participation in, assign or otherwise encumber transfer its portion rights or obligations hereunder except in accordance with this Section. Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby, Participants (to the extent provided in paragraph (c) of this Section) and, to the extent expressly contemplated hereby, the Related Parties of each of the ObligationAdministrative Agent, the Issuing Banks and the Lenders, any legal or equitable right, remedy or claim under or by reason of this Agreement.
(bi) Each Subject to the conditions set forth in paragraph (b)(ii) below, any Lender may assign to one or more Eligible Assignees assignees all or a portion of its Rights rights and obligations under the Loan Documents this Agreement (including, without limitation, including all or a portion of its Borrowings Commitment and the Loans at the time owing to it and its Notes interests in Swingline Loans and Letters of Credit) with the prior written consent (such consent not to the extent any Principal Debt owed to such assigning Lender is evidenced by a Note or Notes); provided, however, thatbe unreasonably withheld) of:
(iA) each such assignment the Borrower, provided that no consent of the Borrower shall be required for an assignment to a Lender, an Affiliate of a Lender, an Approved Fund (as defined below) or, if an Event of Default has occurred and is continuing, any other assignee; and
(B) the Administrative Agent, provided that no consent of the Administrative Agent shall be required for an assignment to an Eligible Assignee;assignee that is a Lender with a commitment immediately prior to giving effect to such assignment.
(ii) Assignments shall be subject to the following additional conditions:
(A) except in the case of an assignment to another a Lender or in the case an Affiliate of a Lender or an assignment of all the entire remaining amount of a the assigning Lender's Rights Commitment, the amount of the Commitment of the assigning Lender subject to each such assignment (determined as of the date the Assignment and obligations under Assumption with respect to such assignment is delivered to the Loan Documents, any such partial assignment under the Facility Administrative Agent) shall not be less than $5,000,000 unless each of the Borrower and the Administrative Agent otherwise consent, provided that no such consent thereto (in their sole discretion) in writing which may be evidenced by their acceptance and execution of the related Assignment Borrower shall be required if an Event of Default under clauses (a), (b), (g) or (h) of Article 6 has occurred and Acceptance Agreement; provided that, no partial assignment for the Facility (including any assignment among Lenders) may result in any Lender holding less than $10,000,000, provided further that, a Lender may hold an amount less than $10,000,000 but greater than $5,000,000 only if such Lender shall hold at least $10,000,000 in the aggregate of this Facility and the Multi- Year Revolving Agreement (notwithstanding the foregoing, in the event the Multi-Year Revolving Agreement is terminated, any Lender may continue to hold an amount in this Facility greater than or equal to the amount such Lender held on the date of the termination of the Multi-Year Revolving Agreement)continuing;
(iiiB) each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender's rights and obligations under this Agreement;
(C) the parties to such each assignment shall execute and deliver to the Administrative Agent for its acceptance an Assignment and Acceptance Agreement in the form of EXHIBIT E heretoAssumption, together with any Notes (to the extent any Principal Debt owed to such assigning Lender is evidenced by a Note or Notes) subject to such assignment and a processing and recordation fee of $3,500, including, without limitation, any assignment between Lenders; and
(ivD) so long as any Lender is an Agent under this Agreement, such Lender (or an Affiliate of such Lender) shall retain an economic interest in the Loan Documents, will not assign all of its Rights, duties, or obligations under the Loan Documents, except to an Affiliate of such Lender, and will not enter into any Assignment and Acceptance Agreement that would have the effect of such Lender assigning all of its Rights, duties, or obligations under the Loan Documents to any Person other than an Affiliate of such Lender unless such Agent has relinquished such title in accordance with SECTION 13.1 (with respect to Administrative Agent) or SECTION 13.10 (with respect to the other Agents). Upon execution, delivery, and acceptance of such Assignment and Acceptance Agreement, the assignee thereunder shall be a party hereto and, to the extent of such assignment, have the obligations, Rights, and benefits of a Lender under the Loan Documents and the assigning Lender shall, to the extent of such assignment, relinquish its Rights and be released from its obligations under the Loan Documents. Upon the consummation of any assignment pursuant to this Section, but only upon the request of the assignor or assignee made through Administrative Agent, Borrower shall issue appropriate Notes to the assignor and the assignee, reflecting such Assignment and Acceptance. If the assignee is if it shall not incorporated under the laws of the United States of America or be a state thereofLender, it shall deliver to Borrower and the Administrative Agent certification as to exemption from deduction or withholding of Taxes in accordance with SECTION 4.6an Administrative Questionnaire.
(c) Administrative Agent shall maintain at its address referred to in SECTION 14.3 a copy of each Assignment and Acceptance Agreement delivered to and accepted by it and a register for NBPLP CREDIT AGREEMENT the recordation of the names and addresses of the Lenders and the Commitment Percentage, and principal amount of the Borrowings owing to, each Lender from time to time (the "REGISTER"). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and Borrower, Administrative Agent and the Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of the Loan Documents. The Register shall be available for inspection by Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice. Upon the consummation of any assignment in accordance with this SECTION 14.13, SCHEDULE 2.1 shall automatically be deemed amended (to the extent required) by Administrative Agent to reflect the name, address, and, where appropriate, respective Committed Sums under the Facility (as the case may be) of the assignor and assignee.
(d) Upon its receipt of an Assignment and Acceptance Agreement executed by the parties thereto, together with any Notes (to the extent any Principal Debt owed to such assigning Lender is evidenced by a Note or Notes) subject to such assignment and payment of the processing fee, Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of EXHIBIT E hereto, (i) accept such Assignment and Acceptance Agreement, (ii) record the information contained therein in the Register, and (iii) give prompt notice thereof to the parties thereto.
(e) Subject to the provisions of this Section and in accordance with applicable Law, any Lender may, in the ordinary course of its commercial banking business and in accordance with applicable Law, at any time sell to one or more Persons (each a "PARTICIPANT") participating interests in its portion of the Obligation. In the event of any such sale to a Participant, (i) such Lender shall remain a "Lender" under the Loan Documents and the Participant shall not constitute a "Lender" hereunder, (ii) such Lender's obligations under the Loan Documents shall remain unchanged, (iii) such Lender shall remain solely responsible for the performance thereof, (iv) such Lender shall remain the holder of its share of the Principal Debt for all purposes under the Loan Documents, (v) Borrower and Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender's Rights and obligations under the Loan Documents, and (vi) such Lender shall be solely responsible for any withholding taxes or any filing or reporting requirements relating to such participation and shall hold Borrower and Administrative Agent and their respective successors, permitted assigns, officers, directors, employees, agents, and representatives harmless against the same. Participants shall have no Rights under the Loan Documents, other than certain voting Rights as provided below. Subject to the following, each Lender shall be entitled to obtain (on behalf of its Participants) the benefits of SECTION 4 with respect to all participations in its part of the Obligation outstanding from time to time, so long as Borrower shall not be obligated to pay any amount in excess of the amount that would be due to such Lender under SECTION 4 calculated as though no participations have been made. No Lender shall sell any participating interest under which the Participant shall have any Rights to approve any amendment, modification, or waiver of any Loan Document, except to the extent such amendment, modification, or waiver extends the due date for payment of any amount in respect of principal (other than mandatory prepayments), interest, or fees due under the Loan Documents, reduces the interest rate or the amount of principal or fees applicable to the Obligation (except such reductions as are contemplated by the Loan Documents), or releases all or any substantial portion of the Guaranties under the Loan Documents; provided that, in those cases where a Participant is entitled to the benefits of SECTION 4 or a Lender grants Rights to its Participants to approve amendments to or waivers of the Loan Documents respecting the matters previously described in this sentence, such Lender must include a voting mechanism in the relevant participation agreement or agreements, as the case may be, whereby a majority of such Lender's portion of the Obligation (whether held by such Lender or Participant) shall control the vote for all of such Lender's portion of the Obligation. Except in the case of the sale of a participating interest to another Lender, the relevant participation agreement shall not permit the Participant to transfer, pledge, assign, sell participations in, or otherwise encumber its portion of the Obligation, unless the consent of the transferring Lender (which consent will not be unreasonably withheld) has been obtained. NBPLP CREDIT AGREEMENT
(f) Notwithstanding any other provision set forth in this Agreement, any Lender may, without notice to, or the consent of Borrower or Administrative Agent, at any time assign and pledge all or any portion of its Borrowings and its Notes (to the extent any Principal Debt owed to such assigning Lender is evidenced by a Note or Notes) to any Federal Reserve Bank as collateral security pursuant to Regulation A and any Operating Circular issued by such Federal Reserve Bank or any Lender which is a fund may pledge all or any portion of its Borrowings and its Notes (to the extent any Principal Debt owed to such assigning Lender is evidenced by a Note or Notes) to its trustee in support of its obligations to its trustee. No such assignment shall release the assigning Lender from its obligations hereunder.
(g) Any Lender may furnish any information concerning the Loan Parties in the possession of such Lender from time to time to Eligible Assignees and Participants (including prospective Eligible Assignees and Participants), subject to the provisions of SECTION 14.14.
Appears in 1 contract
Samples: Revolving Credit Facility Agreement (Lennox International Inc)
Successors and Assigns; Assignments and Participations. (a) This The provisions of this Agreement shall be binding upon, upon and inure to the benefit of the parties hereto and their respective successors and assignsassigns permitted hereby, except that Borrower may not assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of each Lender and no Lender may assign or otherwise transfer any of its rights or obligations hereunder except (i) Borrower may notto an Eligible Assignee in accordance with the provisions of SECTION 13.13(b), directly or indirectly, assign or transfer, or attempt to assign or transfer, any of its Rights, duties, or obligations under any Loan Documents without the express written consent of all Lenders, and (ii) except as permitted NBPLP CREDIT AGREEMENT under this Section, no Lender may transfer, pledge, assign, sell any by way of participation inin accordance with the provisions of SECTION 13.13(d), or otherwise encumber its portion (iii) by way of pledge or assignment of a security interest subject to the Obligation.restrictions of SECTION 13.13(f). Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby, Participants to the extent provided in SECTION 13.13(d) and, to the extent expressly contemplated hereby, the Indemnitees) any legal or equitable right, remedy or claim under or by reason of this Agreement. LETTER OF CREDIT AND REIMBURSEMENT AGREEMENT 61
(b) Each Any Lender may at any time assign to one or more Eligible Assignees all or a portion of its Rights rights and obligations under the Loan Documents this Agreement (including, without limitation, including all or a portion of its Commitment and outstanding Borrowings and its Notes (including for purposes of this SECTION 13.13(b) participations in L/C Obligations) at the time owing to the extent any Principal Debt owed to such assigning Lender is evidenced by a Note or Notesit); provided, however, provided that:
(i) each such assignment shall be to an Eligible Assignee;
(ii) except in the case of an assignment of the entire remaining amount of the assigning Lender's Commitment and outstanding Borrowings and participations in Unreimbursed Amounts at the time owing to another Lender it or in the case of an assignment of all to a Lender or an Affiliate of a Lender or an Approved Fund (as defined in SECTION 13.13(g)) with respect to a Lender's Rights , the aggregate amount of the Commitment (which for this purpose includes Borrowings and obligations under participations in Unreimbursed Amounts outstanding thereunder) subject to each such assignment, determined as of the Loan Documentsdate the Assignment and Assumption with respect to such assignment is delivered to Administrative Agent or, any such partial assignment under if "Trade Date" is specified in the Facility Assignment and Assumption, as of the Trade Date, shall not be less than $5,000,000 unless Borrower or a whole multiple of $500,000 in excess thereof, and Administrative Agent consent thereto (in their sole discretion) in writing which may be evidenced by their acceptance and execution of the related Assignment and Acceptance Agreement; provided thatafter such assignment, no partial assignment for the Facility (including any assignment among Lenders) may result in any Lender holding shall hold a Commitment of less than $10,000,0005,000,000 unless each of Administrative Agent and, provided further thatso long as no Event of Default has occurred and is continuing, Borrower otherwise consents (each such consent not to be unreasonably withheld or delayed); (ii) each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender's rights and obligations under this Agreement with respect to the Borrowings or the Commitment assigned; (iii) any assignment of a Commitment or unfunded participation in Unreimbursed Amounts must be approved by Administrative Agent and each L/C Issuer holding more than thirty three percent (33%) of the L/C Obligations (in each case which approval shall not be unreasonably withheld) unless the Person that is the proposed assignee is itself a Lender may hold (whether or not the proposed assignee would otherwise qualify as an amount less than $10,000,000 but greater than $5,000,000 only if such Lender shall hold at least $10,000,000 in the aggregate of this Facility Eligible Assignee); and the Multi- Year Revolving Agreement (notwithstanding the foregoing, in the event the Multi-Year Revolving Agreement is terminated, any Lender may continue to hold an amount in this Facility greater than or equal to the amount such Lender held on the date of the termination of the Multi-Year Revolving Agreement);
(iiiiv) the parties to such each assignment shall execute and deliver to Administrative Agent for its acceptance an Assignment and Acceptance Agreement in the form of EXHIBIT E heretoAssumption, together with any Notes (to the extent any Principal Debt owed to such assigning Lender is evidenced by a Note or Notes) subject to such assignment and a processing and recordation fee of $3,500. Subject to acceptance and recording thereof by Administrative Agent pursuant to SECTION 13.13(c), includingfrom and after the effective date specified in each Assignment and Assumption, without limitationthe Eligible Assignee thereunder shall be a party to this Agreement and, any assignment between Lenders; to the extent of the interest assigned by such Assignment and Assumption, have the rights and obligations of a Lender under this Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment and Assumption, be released from its obligations under this Agreement (and
(iv) so long as any Lender is , in the case of an Agent Assignment and Assumption covering all of the assigning Lender's rights and obligations under this Agreement, such Lender (or an Affiliate of such Lender) shall retain an economic interest in the Loan Documents, will not assign all of its Rights, duties, or obligations under the Loan Documents, except cease to an Affiliate of such Lender, and will not enter into any Assignment and Acceptance Agreement that would have the effect of such Lender assigning all of its Rights, duties, or obligations under the Loan Documents to any Person other than an Affiliate of such Lender unless such Agent has relinquished such title in accordance with SECTION 13.1 (with respect to Administrative Agent) or SECTION 13.10 (with respect to the other Agents). Upon execution, delivery, and acceptance of such Assignment and Acceptance Agreement, the assignee thereunder shall be a party hereto and, to the extent of such assignment, have the obligations, Rights, and benefits of a Lender under the Loan Documents and the assigning Lender shall, to the extent of such assignment, relinquish its Rights and be released from its obligations under the Loan Documents. Upon the consummation of any assignment pursuant to this Section, but only upon the request of the assignor or assignee made through Administrative Agent, Borrower shall issue appropriate Notes to the assignor and the assignee, reflecting such Assignment and Acceptance. If the assignee is not incorporated under the laws of the United States of America or a state thereof, it shall deliver to Borrower and Administrative Agent certification as to exemption from deduction or withholding of Taxes in accordance with SECTION 4.6.
(c) Administrative Agent shall maintain at its address referred to in SECTION 14.3 a copy of each Assignment and Acceptance Agreement delivered to and accepted by it and a register for NBPLP CREDIT AGREEMENT the recordation of the names and addresses of the Lenders and the Commitment Percentage, and principal amount of the Borrowings owing to, each Lender from time to time (the "REGISTER"). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and Borrower, Administrative Agent and the Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of the Loan Documents. The Register shall be available for inspection by Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice. Upon the consummation of any assignment in accordance with this SECTION 14.13, SCHEDULE 2.1 shall automatically be deemed amended (to the extent required) by Administrative Agent to reflect the name, address, and, where appropriate, respective Committed Sums under the Facility (as the case may be) of the assignor and assignee.
(d) Upon its receipt of an Assignment and Acceptance Agreement executed by the parties thereto, together with any Notes (to the extent any Principal Debt owed to such assigning Lender is evidenced by a Note or Notes) subject to such assignment and payment of the processing fee, Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of EXHIBIT E hereto, (i) accept such Assignment and Acceptance Agreement, (ii) record the information contained therein in the Register, and (iii) give prompt notice thereof to the parties thereto.
(e) Subject to the provisions of this Section and in accordance with applicable Law, any Lender may, in the ordinary course of its commercial banking business and in accordance with applicable Law, at any time sell to one or more Persons (each a "PARTICIPANT") participating interests in its portion of the Obligation. In the event of any such sale to a Participant, (i) such Lender shall remain a "Lender" under the Loan Documents and the Participant shall not constitute a "Lender" hereunder, (ii) such Lender's obligations under the Loan Documents shall remain unchanged, (iii) such Lender shall remain solely responsible for the performance thereof, (iv) such Lender shall remain the holder of its share of the Principal Debt for all purposes under the Loan Documents, (v) Borrower and Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender's Rights and obligations under the Loan Documents, and (vi) such Lender shall be solely responsible for any withholding taxes or any filing or reporting requirements relating to such participation and shall hold Borrower and Administrative Agent and their respective successors, permitted assigns, officers, directors, employees, agents, and representatives harmless against the same. Participants shall have no Rights under the Loan Documents, other than certain voting Rights as provided below. Subject to the following, each Lender shall be entitled to obtain (on behalf of its Participants) the benefits of SECTION 4 with respect to all participations in its part of the Obligation outstanding from time to time, so long as Borrower shall not be obligated to pay any amount in excess of the amount that would be due to such Lender under SECTION 4 calculated as though no participations have been made. No Lender shall sell any participating interest under which the Participant shall have any Rights to approve any amendment, modification, or waiver of any Loan Document, except to the extent such amendment, modification, or waiver extends the due date for payment of any amount in respect of principal (other than mandatory prepayments), interest, or fees due under the Loan Documents, reduces the interest rate or the amount of principal or fees applicable to the Obligation (except such reductions as are contemplated by the Loan Documents), or releases all or any substantial portion of the Guaranties under the Loan Documents; provided that, in those cases where a Participant is entitled to the benefits of SECTION 4 or a Lender grants Rights SECTIONS 4.1, 4.5, and 4.6 (with respect to its Participants facts and circumstances occurring prior to approve amendments to or waivers of the Loan Documents respecting the matters previously described in this sentence, such Lender must include a voting mechanism in the relevant participation agreement or agreements, as the case may be, whereby a majority effective date of such Lender's portion of the Obligation (whether held by such Lender or Participantassignment) shall control the vote for all of such Lender's portion of the Obligation. Except in the case of the sale of a participating interest to another Lender, the relevant participation agreement shall not permit the Participant to transfer, pledge, assign, sell participations in, or otherwise encumber its portion of the Obligation, unless the consent of the transferring Lender (which consent will not be unreasonably withheld) has been obtained. NBPLP CREDIT AGREEMENT
(f) Notwithstanding any other provision set forth in this Agreement, any Lender may, without notice to, or the consent of Borrower or Administrative Agent, at any time assign and pledge all or any portion of its Borrowings and its Notes (to the extent any Principal Debt owed to such assigning Lender is evidenced by a Note or Notes) to any Federal Reserve Bank as collateral security pursuant to Regulation A and any Operating Circular issued by such Federal Reserve Bank or any Lender which is a fund may pledge all or any portion of its Borrowings and its Notes (to the extent any Principal Debt owed to such assigning Lender is evidenced by a Note or Notes) to its trustee in support of its obligations to its trustee. No such assignment shall release the assigning Lender from its obligations hereunder11.
(g) Any Lender may furnish any information concerning the Loan Parties in the possession of such Lender from time to time to Eligible Assignees and Participants (including prospective Eligible Assignees and Participants), subject to the provisions of SECTION 14.14.
Appears in 1 contract
Samples: Letter of Credit and Reimbursement Agreement (Centex Corp)
Successors and Assigns; Assignments and Participations. (a) This The provisions of this Agreement shall be binding upon, upon and inure to the benefit of the parties hereto and their respective successors and assignsassigns permitted hereby, except that (i) Borrower the Borrowers may not, directly or indirectly, not assign or transfer, or attempt to assign or transfer, otherwise transfer any of its Rights, duties, their rights or obligations under any Loan Documents hereunder without the express prior written consent of all Lenders, the Agent (and any attempted assignment or transfer by any Borrower without such consent shall be null and void) and (ii) except as permitted NBPLP CREDIT AGREEMENT under this Sectionthe Lenders may not assign or otherwise transfer its rights or obligations hereunder to an assignee (“Assignee”) without the prior written consent of the Borrowers (such consent of the Borrowers not to be unreasonably withheld or delayed), no Lender may transfer, pledge, assign, sell any participation inwhich consent shall not be required (A) during the existence of a Default or Event of Default, or otherwise encumber its portion (B) during the existence of the Obligation.
(b) Each Lender may assign to one or more Eligible Assignees all or a portion default under any material Contractual Obligation of its Rights and obligations under the Loan Documents (including, without limitation, all or a portion of its Borrowings and its Notes to the extent any Principal Debt owed to such assigning Lender is evidenced by a Note or Notes)Borrower; provided, howeverfurther, that:
, (i) each such assignment shall be other than to an Eligible Assignee;
(ii) except in the case of an assignment to another a Lender or in the case of an assignment of all Affiliate of a Lender's Rights and obligations under ), the Loan Documents, amount of Loans of the assigning Lender subject to each assignment (aggregating any such partial assignment under the Facility assignments by Affiliates) shall not be less than $5,000,000 15,000,000, unless Borrower the Borrowers and Administrative the Agent consent thereto (in their sole discretion) in writing which may be evidenced by their otherwise agree. Subject to acceptance and execution of recording thereof pursuant to this Section 9.6, from and after the related effective date specified in each Assignment and Acceptance Agreement; provided that, no partial assignment for the Facility (including any assignment among Lenders) may result in any Lender holding less than $10,000,000, provided further that, a Lender may hold an amount less than $10,000,000 but greater than $5,000,000 only if such Lender shall hold at least $10,000,000 in the aggregate of this Facility and the Multi- Year Revolving Agreement (notwithstanding the foregoing, in the event the Multi-Year Revolving Agreement is terminated, any Lender may continue to hold an amount in this Facility greater than or equal to the amount such Lender held on the date of the termination of the Multi-Year Revolving Agreement);
(iii) the parties to such assignment shall execute and deliver to Administrative Agent for its acceptance an Assignment and Acceptance Agreement in the form of EXHIBIT E hereto, together with any Notes (to the extent any Principal Debt owed to such assigning Lender is evidenced by a Note or Notes) subject to such assignment and a processing fee of $3,500, including, without limitation, any assignment between Lenders; and
(iv) so long as any Lender is an Agent under this Agreement, such Lender (or an Affiliate of such Lender) shall retain an economic interest in the Loan Documents, will not assign all of its Rights, duties, or obligations under the Loan Documents, except to an Affiliate of such Lender, and will not enter into any Assignment and Acceptance Agreement that would have the effect of such Lender assigning all of its Rights, duties, or obligations under the Loan Documents to any Person other than an Affiliate of such Lender unless such Agent has relinquished such title in accordance with SECTION 13.1 (with respect to Administrative Agent) or SECTION 13.10 (with respect to the other Agents). Upon execution, delivery, and acceptance of such Assignment and Acceptance AgreementAssumption, the assignee Assignee thereunder shall be a party hereto and, to the extent of the interest assigned by such assignmentAssignment and Assumption, have the obligations, Rights, rights and benefits obligations of a Lender under the Loan Documents this Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by such assignmentAssignment and Assumption, relinquish its Rights and be released from its obligations under this Agreement (and, in the Loan Documents. Upon the consummation case of any assignment pursuant to this Section, but only upon the request an Assignment and Assumption covering all of the assignor or assignee made through Administrative assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto but shall continue to be entitled to the benefits of). The Agent, Borrower shall issue appropriate Notes to the assignor and the assignee, reflecting such Assignment and Acceptance. If the assignee is not incorporated under the laws acting for this purpose as an agent of the United States of America or a state thereofBorrowers, it shall deliver to Borrower and Administrative Agent certification as to exemption from deduction or withholding of Taxes in accordance with SECTION 4.6.
(c) Administrative Agent shall maintain at one of its address referred to in SECTION 14.3 offices a copy of each Assignment and Acceptance Agreement Assumption delivered to and accepted by it and a register for NBPLP CREDIT AGREEMENT the recordation of the names and addresses of the Lenders and the Commitment PercentageLenders, and principal amount of the Borrowings Loans owing to, each Lender pursuant to the terms hereof from time to time (the "REGISTER"“Register”). The entries in the Register shall be conclusive and binding for all purposes, absent manifest errorconclusive, and Borrowerthe Borrowers, Administrative Agent the Agent, and the Lenders may treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of the Loan Documents. The Register shall be available for inspection by Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice. Upon the consummation of any assignment in accordance with this SECTION 14.13Agreement, SCHEDULE 2.1 shall automatically be deemed amended (notwithstanding notice to the extent required) by Administrative Agent to reflect the name, address, and, where appropriate, respective Committed Sums under the Facility (as the case may be) of the assignor and assignee.
(d) contrary. Upon its receipt of an a duly completed Assignment and Acceptance Agreement Assumption executed by an assigning Xxxxxx and an Assignee, the parties theretoAssignee’s completed administrative questionnaire (unless the Assignee shall already be a Lender hereunder), together with and any Notes (to the extent any Principal Debt owed to such assigning Lender is evidenced by a Note or Notes) subject written consent to such assignment and payment of required by this Section 9.6, the processing fee, Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of EXHIBIT E hereto, (i) shall accept such Assignment and Acceptance Agreement, (ii) Assumption and record the information contained therein in the Register, and (iii) give prompt notice thereof to . No assignment shall be effective for purposes of this Agreement unless it has been recorded in the parties theretoRegister as provided in this paragraph.
(eb) Subject to the provisions of this Section and in accordance with applicable Law, any Any Lender may, in without the ordinary course consent of its commercial banking business and in accordance with applicable Lawthe Borrowers or the Agent, at any time sell participations to one or more Persons entities in all or a portion of such Lender’s rights and obligations under this Agreement (each including all or a "PARTICIPANT") participating interests in its portion of the Obligation. In the event of any such sale Loans owing to a Participant, it); provided that (i) such Lender shall remain a "Lender" under the Loan Documents and the Participant shall not constitute a "Lender" hereunder, (ii) such Lender's ’s obligations under the Loan Documents this Agreement shall remain unchanged, (iiiii) such Lender shall remain solely responsible to the other parties hereto for the performance thereofof such obligations and (iii) the Borrowers, (iv) such Lender shall remain the holder of its share of Agent and the Principal Debt for all purposes under the Loan Documents, (v) Borrower and Administrative Agent other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender's Rights ’s rights and obligations under the Loan Documents, and (vi) this Agreement. Any agreement pursuant to which a Lender sells such a participation shall provide that such Lender shall be solely responsible for any withholding taxes or any filing or reporting requirements relating retain the sole right to such participation enforce this Agreement and shall hold Borrower and Administrative Agent and their respective successors, permitted assigns, officers, directors, employees, agents, and representatives harmless against the same. Participants shall have no Rights under the Loan Documents, other than certain voting Rights as provided below. Subject to the following, each Lender shall be entitled to obtain (on behalf of its Participants) the benefits of SECTION 4 with respect to all participations in its part of the Obligation outstanding from time to time, so long as Borrower shall not be obligated to pay any amount in excess of the amount that would be due to such Lender under SECTION 4 calculated as though no participations have been made. No Lender shall sell any participating interest under which the Participant shall have any Rights to approve any amendment, modification, modification or waiver of any Loan Documentprovision of this Agreement. Each Lender that sells a participation shall, except to acting solely for this purpose as a non-fiduciary agent of the extent such amendmentBorrowers, modification, maintain a register on which it enters the name and address of each participant and the principal amounts (and stated interest) of each participant’s interest in the Loans or waiver extends the due date for payment of any amount in respect of principal (other than mandatory prepayments), interest, or fees due obligations under the Loan Documents, reduces Documents (the interest rate or the amount of principal or fees applicable to the Obligation (except such reductions as are contemplated by the Loan Documents“Participant Register”), or releases all or any substantial portion of the Guaranties under the Loan Documents; provided that, in those cases where a Participant is entitled that no Lender shall have any obligation to the benefits of SECTION 4 or a Lender grants Rights to its Participants to approve amendments to or waivers of the Loan Documents respecting the matters previously described in this sentence, such Lender must include a voting mechanism in the relevant participation agreement or agreements, as the case may be, whereby a majority of such Lender's portion of the Obligation (whether held by such Lender or Participant) shall control the vote for all of such Lender's portion of the Obligation. Except in the case of the sale of a participating interest to another Lender, the relevant participation agreement shall not permit the Participant to transfer, pledge, assign, sell participations in, or otherwise encumber its portion of the Obligation, unless the consent of the transferring Lender (which consent will not be unreasonably withheld) has been obtained. NBPLP CREDIT AGREEMENT
(f) Notwithstanding any other provision set forth in this Agreement, any Lender may, without notice to, or the consent of Borrower or Administrative Agent, at any time assign and pledge disclose all or any portion of the Participant Register (including the identity of any participant or any information relating to a participant’s interest in any commitments, loans, or its Borrowings and its Notes (other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any Principal Debt owed to such assigning Lender is evidenced by a Note or Notes) to any Federal Reserve Bank as collateral security pursuant to Regulation A and any Operating Circular issued by such Federal Reserve Bank or any Lender which is a fund may pledge all or any portion of its Borrowings and its Notes (notice to the extent any Principal Debt owed to such assigning Lender is evidenced by contrary. For the avoidance of doubt, the Agent (in its capacity as Agent) shall have no responsibility for maintaining a Note or Notes) to its trustee in support of its obligations to its trustee. No such assignment shall release the assigning Lender from its obligations hereunderParticipant Register.
(g) Any Lender may furnish any information concerning the Loan Parties in the possession of such Lender from time to time to Eligible Assignees and Participants (including prospective Eligible Assignees and Participants), subject to the provisions of SECTION 14.14.
Appears in 1 contract
Samples: Credit Agreement (Cadiz Inc)
Successors and Assigns; Assignments and Participations. (a) This The provisions of this Agreement shall be binding upon, upon and inure to the benefit of the parties hereto and their respective successors and assignsassigns permitted hereby, except that (i) the Borrower may not, directly or indirectly, not assign or transfer, or attempt to assign or transfer, otherwise transfer any of its Rights, duties, rights or obligations under any Loan Documents hereunder without the express prior written consent of all Lenders, the Agent (and any attempted assignment or transfer by the Borrower without such consent shall be null and void) and (ii) except as permitted NBPLP CREDIT AGREEMENT under this Section, no Lender the Lenders may transfer, pledge, assign, sell any participation in, not assign or otherwise encumber transfer its portion of the Obligation.
(b) Each Lender may assign to one or more Eligible Assignees all or a portion of its Rights and obligations under the Loan Documents (including, without limitation, all or a portion of its Borrowings and its Notes to the extent any Principal Debt owed to such assigning Lender is evidenced by a Note or Notes); provided, however, that:
(i) each such assignment shall be to an Eligible Assignee;
(ii) except in the case of an assignment to another Lender or in the case of an assignment of all of a Lender's Rights and obligations under the Loan Documents, any such partial assignment under the Facility shall not be less than $5,000,000 unless Borrower and Administrative Agent consent thereto (in their sole discretion) in writing which may be evidenced by their acceptance and execution of the related Assignment and Acceptance Agreement; provided that, no partial assignment for the Facility (including any assignment among Lenders) may result in any Lender holding less than $10,000,000, provided further that, a Lender may hold an amount less than $10,000,000 but greater than $5,000,000 only if such Lender shall hold at least $10,000,000 in the aggregate of this Facility and the Multi- Year Revolving Agreement (notwithstanding the foregoing, in the event the Multi-Year Revolving Agreement is terminated, any Lender may continue to hold an amount in this Facility greater than or equal to the amount such Lender held on the date of the termination of the Multi-Year Revolving Agreement);
(iii) the parties to such assignment shall execute and deliver to Administrative Agent for its acceptance an Assignment and Acceptance Agreement in the form of EXHIBIT E hereto, together with any Notes (to the extent any Principal Debt owed to such assigning Lender is evidenced by a Note or Notes) subject to such assignment and a processing fee of $3,500, including, without limitation, any assignment between Lenders; and
(iv) so long as any Lender is an Agent under this Agreement, such Lender (or an Affiliate of such Lender) shall retain an economic interest in the Loan Documents, will not assign all of its Rights, duties, rights or obligations under the Loan Documents, hereunder except to an Affiliate of such Lenderassignee (“Assignee”). Subject to acceptance and recording thereof pursuant to this Section 9.6, from and will not enter into any after the effective date specified in each Assignment and Acceptance Agreement that would have Assumption the effect of such Lender assigning all of its Rights, duties, or obligations under the Loan Documents to any Person other than an Affiliate of such Lender unless such Agent has relinquished such title in accordance with SECTION 13.1 (with respect to Administrative Agent) or SECTION 13.10 (with respect to the other Agents). Upon execution, delivery, and acceptance of such Assignment and Acceptance Agreement, the assignee Assignee thereunder shall be a party hereto and, to the extent of the interest assigned by such assignmentAssignment and Assumption, have the obligations, Rights, rights and benefits obligations of a Lender under the Loan Documents this Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by such assignmentAssignment and Assumption, relinquish its Rights and be released from its obligations under this Agreement (and, in the Loan Documents. Upon the consummation case of any assignment pursuant to this Section, but only upon the request an Assignment and Assumption covering all of the assignor or assignee made through Administrative assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto but shall continue to be entitled to the benefits of Section 9.5). The Agent, Borrower shall issue appropriate Notes to the assignor and the assignee, reflecting such Assignment and Acceptance. If the assignee is not incorporated under the laws acting for this purpose as an agent of the United States of America or a state thereofBorrower, it shall deliver to Borrower and Administrative Agent certification as to exemption from deduction or withholding of Taxes in accordance with SECTION 4.6.
(c) Administrative Agent shall maintain at one of its address referred to in SECTION 14.3 offices a copy of each Assignment and Acceptance Agreement Assumption delivered to and accepted by it and a register for NBPLP CREDIT AGREEMENT the recordation of the names and addresses of the Lenders and the Commitment PercentageLenders, and principal amount of the Borrowings Loans owing to, each Lender pursuant to the terms hereof from time to time (the "REGISTER"“Register”). The entries in the Register shall be conclusive and binding for all purposes, absent manifest errorconclusive, and the Borrower, Administrative Agent the Agent, and the Lenders may treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of the Loan Documents. The Register shall be available for inspection by Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice. Upon the consummation of any assignment in accordance with this SECTION 14.13Agreement, SCHEDULE 2.1 shall automatically be deemed amended (notwithstanding notice to the extent required) by Administrative Agent to reflect the name, address, and, where appropriate, respective Committed Sums under the Facility (as the case may be) of the assignor and assignee.
(d) contrary. Upon its receipt of an a duly completed Assignment and Acceptance Agreement Assumption executed by the parties thereto, together with any Notes (to the extent any Principal Debt owed to such an assigning Lender is evidenced by and an Assignee, the Assignee’s completed administrative questionnaire (unless the Assignee shall already be a Note or Notes) subject Lender hereunder), and any written consent to such assignment and payment of required by this Section 9.6, the processing fee, Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of EXHIBIT E hereto, (i) shall accept such Assignment and Acceptance Agreement, (ii) Assumption and record the information contained therein in the Register, and (iii) give prompt notice thereof to . No assignment shall be effective for purposes of this Agreement unless it has been recorded in the parties theretoRegister as provided in this paragraph.
(eb) Subject to the provisions of this Section and in accordance with applicable Law, any Any Lender may, in without the ordinary course consent of its commercial banking business and in accordance with applicable Lawthe Borrower or the Agent, at any time sell participations to one or more Persons entities in all or a portion of such Lender’s rights and obligations under this Agreement (each including all or a "PARTICIPANT") participating interests in its portion of the Obligation. In the event of any such sale Loans owing to a Participant, it); provided that (i) such Lender shall remain a "Lender" under the Loan Documents and the Participant shall not constitute a "Lender" hereunder, (ii) such Lender's ’s obligations under the Loan Documents this Agreement shall remain unchanged, (iiiii) such Lender shall remain solely responsible to the other parties hereto for the performance thereofof such obligations and (iii) the Borrower, (iv) such Lender shall remain the holder of its share of Agent and the Principal Debt for all purposes under the Loan Documents, (v) Borrower and Administrative Agent other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender's Rights ’s rights and obligations under the Loan Documents, and (vi) this Agreement. Any agreement pursuant to which a Lender sells such a participation shall provide that such Lender shall be solely responsible for any withholding taxes or any filing or reporting requirements relating retain the sole right to such participation enforce this Agreement and shall hold Borrower and Administrative Agent and their respective successors, permitted assigns, officers, directors, employees, agents, and representatives harmless against the same. Participants shall have no Rights under the Loan Documents, other than certain voting Rights as provided below. Subject to the following, each Lender shall be entitled to obtain (on behalf of its Participants) the benefits of SECTION 4 with respect to all participations in its part of the Obligation outstanding from time to time, so long as Borrower shall not be obligated to pay any amount in excess of the amount that would be due to such Lender under SECTION 4 calculated as though no participations have been made. No Lender shall sell any participating interest under which the Participant shall have any Rights to approve any amendment, modification, modification or waiver of any Loan Document, except to the extent such amendment, modification, or waiver extends the due date for payment provision of any amount in respect of principal (other than mandatory prepayments), interest, or fees due under the Loan Documents, reduces the interest rate or the amount of principal or fees applicable to the Obligation (except such reductions as are contemplated by the Loan Documents), or releases all or any substantial portion of the Guaranties under the Loan Documentsthis Agreement; provided that, in those cases where a Participant is entitled to the benefits of SECTION 4 or a Lender grants Rights to its Participants to approve amendments to or waivers of the Loan Documents respecting the matters previously described in this sentence, that such agreement may provide that such Lender must include a voting mechanism in the relevant participation agreement or agreementswill not, as the case may be, whereby a majority of such Lender's portion of the Obligation (whether held by such Lender or Participant) shall control the vote for all of such Lender's portion of the Obligation. Except in the case of the sale of a participating interest to another Lender, the relevant participation agreement shall not permit the Participant to transfer, pledge, assign, sell participations in, or otherwise encumber its portion of the Obligation, unless without the consent of the transferring Lender loan participant, agree to any amendment, modification or waiver that (which consent will not be unreasonably withheldx) has been obtained. NBPLP CREDIT AGREEMENT
(f) Notwithstanding any other provision set forth in this Agreement, any Lender may, without notice to, or requires the consent of Borrower or Administrative Agent, at any time assign and pledge all or any portion of its Borrowings and its Notes (to the extent any Principal Debt owed to such assigning each Lender is evidenced by a Note or Notes) to any Federal Reserve Bank as collateral security directly affected thereby pursuant to Regulation A Section 9.1 and any Operating Circular issued by (y) directly affects such Federal Reserve Bank or any Lender which is a fund may pledge all or any portion of its Borrowings and its Notes (to the extent any Principal Debt owed to such assigning Lender is evidenced by a Note or Notes) to its trustee in support of its obligations to its trustee. No such assignment shall release the assigning Lender from its obligations hereunderloan participant.
(g) Any Lender may furnish any information concerning the Loan Parties in the possession of such Lender from time to time to Eligible Assignees and Participants (including prospective Eligible Assignees and Participants), subject to the provisions of SECTION 14.14.
Appears in 1 contract
Samples: Credit Agreement (Cadiz Inc)
Successors and Assigns; Assignments and Participations. (a) This The provisions of this Agreement shall be binding upon, upon and inure to the benefit of the parties hereto and their respective successors and assignsassigns permitted hereby, except that Borrower may not assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of each Lender and no Lender may assign or otherwise transfer any of its rights or obligations hereunder except (i) Borrower may notto an Eligible Assignee in accordance with the provisions of SECTION 13.13(B), directly or indirectly, assign or transfer, or attempt to assign or transfer, any of its Rights, duties, or obligations under any Loan Documents without the express written consent of all Lenders, and (ii) except as permitted NBPLP CREDIT AGREEMENT under this Section, no Lender may transfer, pledge, assign, sell any by way of participation inin accordance with the provisions of SECTION 13.13(d), or otherwise encumber its portion (iii) by way of pledge or assignment of a security interest subject to the Obligationrestrictions of SECTION 13.13(f). Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby, Participants to the extent provided in SECTION 13.13(d) and, to the extent expressly contemplated hereby, the Indemnitees) any legal or equitable right, remedy or claim under or by reason of this Agreement.
(b) Each Any Lender may at any time assign to one or more Eligible Assignees all or a portion of its Rights rights and obligations under the Loan Documents this Agreement (including, without limitation, including all or a portion of its Commitment and outstanding Borrowings and its Notes at the time owing to the extent any Principal Debt owed to such assigning Lender is evidenced by a Note or Notesit); provided, however, provided that:
(i) each such assignment shall be to an Eligible Assignee;
(ii) except in the case of an assignment of the entire remaining amount of the assigning Lender's Commitment and outstanding Borrowings at the time owing to another Lender it or in the case of an assignment of all to a Lender or an Affiliate of a Lender or an Approved Fund (as defined in SECTION 13.13(g)) with respect to a Lender's Rights , the aggregate amount of the Commitment (which for this purpose includes Borrowings outstanding thereunder) subject to each such assignment, determined as of the date the Assignment and obligations under Assumption with respect to such assignment is delivered to Administrative Agent or, if "Trade Date" is specified in the Loan DocumentsAssignment and Assumption, any such partial assignment under as of the Facility Trade Date, shall not be less than $5,000,000 unless Borrower or a whole multiple of $500,000 in excess thereof, and Administrative Agent consent thereto (in their sole discretion) in writing which may be evidenced by their acceptance and execution of the related Assignment and Acceptance Agreement; provided thatafter such assignment, no partial assignment for the Facility (including any assignment among Lenders) may result in any Lender holding shall hold a Commitment of less than $10,000,0005,000,000 unless each of Administrative Agent and, provided further thatso long as no Event of Default has occurred and is continuing, Borrower otherwise consents (each such consent not to be unreasonably withheld or delayed); (ii) each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender's rights and obligations under this Agreement with respect to the Borrowings or the Commitment assigned; (iii) any assignment of a Commitment must be approved by Administrative Agent (which approval shall not be unreasonably withheld) unless the Person that is the proposed assignee is itself a Lender may hold (whether or not the proposed assignee would otherwise qualify as an amount less than $10,000,000 but greater than $5,000,000 only if such Lender shall hold at least $10,000,000 in the aggregate of this Facility Eligible Assignee); and the Multi- Year Revolving Agreement (notwithstanding the foregoing, in the event the Multi-Year Revolving Agreement is terminated, any Lender may continue to hold an amount in this Facility greater than or equal to the amount such Lender held on the date of the termination of the Multi-Year Revolving Agreement);
(iiiiv) the parties to such each assignment shall execute and deliver to Administrative Agent for its acceptance an Assignment and Acceptance Agreement in the form of EXHIBIT E heretoAssumption, together with any Notes (to the extent any Principal Debt owed to such assigning Lender is evidenced by a Note or Notes) subject to such assignment and a processing and recordation fee of $3,500. Subject to acceptance and recording thereof by Administrative Agent pursuant to SECTION 13.13(c), includingfrom and after the effective date specified in each Assignment and Assumption, without limitationthe Eligible Assignee thereunder shall be a party to this Agreement and, any assignment between Lenders; to the extent of the interest assigned by such Assignment and Assumption, have the rights and obligations of a Lender under this Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment and Assumption, be released from its obligations under this Agreement (and
(iv) so long as any Lender is , in the case of an Agent Assignment and Assumption covering all of the assigning Lender's rights and obligations under this Agreement, such Lender (or an Affiliate of such Lender) shall retain an economic interest in the Loan Documents, will not assign all of its Rights, duties, or obligations under the Loan Documents, except cease to an Affiliate of such Lender, and will not enter into any Assignment and Acceptance Agreement that would have the effect of such Lender assigning all of its Rights, duties, or obligations under the Loan Documents to any Person other than an Affiliate of such Lender unless such Agent has relinquished such title in accordance with SECTION 13.1 (with respect to Administrative Agent) or SECTION 13.10 (with respect to the other Agents). Upon execution, delivery, and acceptance of such Assignment and Acceptance Agreement, the assignee thereunder shall be a party hereto and, to the extent of such assignment, have the obligations, Rights, and benefits of a Lender under the Loan Documents and the assigning Lender shall, to the extent of such assignment, relinquish its Rights and be released from its obligations under the Loan Documents. Upon the consummation of any assignment pursuant to this Section, but only upon the request of the assignor or assignee made through Administrative Agent, Borrower shall issue appropriate Notes to the assignor and the assignee, reflecting such Assignment and Acceptance. If the assignee is not incorporated under the laws of the United States of America or a state thereof, it shall deliver to Borrower and Administrative Agent certification as to exemption from deduction or withholding of Taxes in accordance with SECTION 4.6.
(c) Administrative Agent shall maintain at its address referred to in SECTION 14.3 a copy of each Assignment and Acceptance Agreement delivered to and accepted by it and a register for NBPLP CREDIT AGREEMENT the recordation of the names and addresses of the Lenders and the Commitment Percentage, and principal amount of the Borrowings owing to, each Lender from time to time (the "REGISTER"). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and Borrower, Administrative Agent and the Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of the Loan Documents. The Register shall be available for inspection by Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice. Upon the consummation of any assignment in accordance with this SECTION 14.13, SCHEDULE 2.1 shall automatically be deemed amended (to the extent required) by Administrative Agent to reflect the name, address, and, where appropriate, respective Committed Sums under the Facility (as the case may be) of the assignor and assignee.
(d) Upon its receipt of an Assignment and Acceptance Agreement executed by the parties thereto, together with any Notes (to the extent any Principal Debt owed to such assigning Lender is evidenced by a Note or Notes) subject to such assignment and payment of the processing fee, Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of EXHIBIT E hereto, (i) accept such Assignment and Acceptance Agreement, (ii) record the information contained therein in the Register, and (iii) give prompt notice thereof to the parties thereto.
(e) Subject to the provisions of this Section and in accordance with applicable Law, any Lender may, in the ordinary course of its commercial banking business and in accordance with applicable Law, at any time sell to one or more Persons (each a "PARTICIPANT") participating interests in its portion of the Obligation. In the event of any such sale to a Participant, (i) such Lender shall remain a "Lender" under the Loan Documents and the Participant shall not constitute a "Lender" hereunder, (ii) such Lender's obligations under the Loan Documents shall remain unchanged, (iii) such Lender shall remain solely responsible for the performance thereof, (iv) such Lender shall remain the holder of its share of the Principal Debt for all purposes under the Loan Documents, (v) Borrower and Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender's Rights and obligations under the Loan Documents, and (vi) such Lender shall be solely responsible for any withholding taxes or any filing or reporting requirements relating to such participation and shall hold Borrower and Administrative Agent and their respective successors, permitted assigns, officers, directors, employees, agents, and representatives harmless against the same. Participants shall have no Rights under the Loan Documents, other than certain voting Rights as provided below. Subject to the following, each Lender shall be entitled to obtain (on behalf of its Participants) the benefits of SECTION 4 with respect to all participations in its part of the Obligation outstanding from time to time, so long as Borrower shall not be obligated to pay any amount in excess of the amount that would be due to such Lender under SECTION 4 calculated as though no participations have been made. No Lender shall sell any participating interest under which the Participant shall have any Rights to approve any amendment, modification, or waiver of any Loan Document, except to the extent such amendment, modification, or waiver extends the due date for payment of any amount in respect of principal (other than mandatory prepayments), interest, or fees due under the Loan Documents, reduces the interest rate or the amount of principal or fees applicable to the Obligation (except such reductions as are contemplated by the Loan Documents), or releases all or any substantial portion of the Guaranties under the Loan Documents; provided that, in those cases where a Participant is entitled to the benefits of SECTION 4 or a Lender grants Rights to its Participants to approve amendments to or waivers of the Loan Documents respecting the matters previously described in this sentence, such Lender must include a voting mechanism in the relevant participation agreement or agreements, as the case may be, whereby a majority of such Lender's portion of the Obligation (whether held by such Lender or Participant) shall control the vote for all of such Lender's portion of the Obligation. Except in the case of the sale of a participating interest to another Lender, the relevant participation agreement shall not permit the Participant to transfer, pledge, assign, sell participations in, or otherwise encumber its portion of the Obligation, unless the consent of the transferring Lender (which consent will not be unreasonably withheld) has been obtained. NBPLP CREDIT AGREEMENT
(f) Notwithstanding any other provision set forth in this Agreement, any Lender may, without notice to, or the consent of Borrower or Administrative Agent, at any time assign and pledge all or any portion of its Borrowings and its Notes (to the extent any Principal Debt owed to such assigning Lender is evidenced by a Note or Notes) to any Federal Reserve Bank as collateral security pursuant to Regulation A and any Operating Circular issued by such Federal Reserve Bank or any Lender which is a fund may pledge all or any portion of its Borrowings and its Notes (to the extent any Principal Debt owed to such assigning Lender is evidenced by a Note or Notes) to its trustee in support of its obligations to its trustee. No such assignment shall release the assigning Lender from its obligations hereunder.
(g) Any Lender may furnish any information concerning the Loan Parties in the possession of such Lender from time to time to Eligible Assignees and Participants (including prospective Eligible Assignees and Participants), subject to the provisions of SECTION 14.14.
Appears in 1 contract
Successors and Assigns; Assignments and Participations. (a) This Agreement shall be binding upon, and inure to the benefit of the parties hereto and their respective successors and assigns, except that (i) Borrower may not, directly or indirectly, assign or transfer, or attempt to assign or transfer, any of its Rights, duties, or obligations under any Loan Documents without the express written consent of all Lenders, and (ii) except as permitted NBPLP CREDIT AGREEMENT under this Section, no Lender may transfer, pledge, assign, sell any participation in, or otherwise encumber its portion of the Obligation.
(b) Each Lender may at any time assign to one or more Eligible Assignees all or a portion of its Rights rights and obligations under the Loan Documents (including, without limitation, delegate all or a portion of its Borrowings rights and obligations under this Agreement and the other Loan Documents (including all its Notes rights and obligations with respect to the extent any Principal Debt owed Loans) to such assigning Lender is evidenced by one or more Persons (a Note or Notes"TRANSFEREE"); provided, however, that:
(i) each that such assignment shall be to an Eligible Assignee;
(ii) except in the case of an assignment to another Transferee and such assigning Lender or in the case of an assignment of all of a Lender's Rights and obligations under the Loan Documents, any such partial assignment under the Facility shall not be less than $5,000,000 unless Borrower and Administrative Agent consent thereto (in their sole discretion) in writing which may be evidenced by their acceptance and execution of the related Assignment and Acceptance Agreement; provided that, no partial assignment for the Facility (including any assignment among Lenders) may result in any Lender holding less than $10,000,000, provided further that, a Lender may hold an amount less than $10,000,000 but greater than $5,000,000 only if such Lender shall hold at least $10,000,000 in the aggregate of this Facility and the Multi- Year Revolving Agreement (notwithstanding the foregoing, in the event the Multi-Year Revolving Agreement is terminated, any Lender may continue to hold an amount in this Facility greater than or equal to the amount such Lender held on the date of the termination of the Multi-Year Revolving Agreement);
(iii) the parties to such assignment shall execute and deliver to Administrative Agent for its acceptance an Assignment and Acceptance Agreement recording in the Register, a Lender Addition Agreement, which shall be in form and substance reasonably acceptable to Agent in its Permitted Discretion and, unless an Event of EXHIBIT E hereto, together with any Notes (to the extent any Principal Debt owed to such assigning Lender Default has occurred and is evidenced by a Note or Notes) subject to such assignment and a processing fee of $3,500, includingcontinuing, without limitationthe approval of the Parent (which approval shall not be unreasonably withheld or delayed), any assignment between Lenders; and
(iv) so long CapitalSource may not transfer such rights if, as any Lender is an Agent under this Agreement, such Lender (or an Affiliate a result of such Lendertransfer, (A) CapitalSource shall retain an economic interest in cease to constitute the Loan Documents, will not assign all of its Rights, duties, Requisite Lenders or obligations under the Loan Documents, except to an Affiliate of such Lender, and will not enter into any Assignment and Acceptance Agreement that would have the effect of such Lender assigning all of its Rights, duties, or obligations under the Loan Documents to any Person other than an Affiliate of such Lender unless such Agent has relinquished such title in accordance with SECTION 13.1 (with respect to Administrative AgentB) or SECTION 13.10 (with respect to the other Agentstransfer of any Canadian Obligations to a U.S.-based Lender, additional amounts would be imposed by such Lender on the Canadian Borrowers as a result of withholding taxes under Section 6.13(b). Upon such execution, delivery, acceptance and acceptance of recording, from and after the effective date determined pursuant to such Assignment and Acceptance Lender Addition Agreement, (i) the assignee Transferee thereunder shall be a party hereto and, to the extent of provided in such assignmentLender Addition Agreement, have the obligationssame rights, Rights, benefits and benefits of obligations as it would if it were a Lender under the Loan Documents and the assigning Lender shall, to the extent of such assignment, relinquish its Rights and be released from its obligations under the Loan Documents. Upon the consummation of any assignment pursuant to this Section, but only upon the request of the assignor or assignee made through Administrative Agent, Borrower shall issue appropriate Notes to the assignor and the assignee, reflecting such Assignment and Acceptance. If the assignee is not incorporated under the laws of the United States of America or a state thereof, it shall deliver to Borrower and Administrative Agent certification as to exemption from deduction or withholding of Taxes in accordance with SECTION 4.6.
(c) Administrative Agent shall maintain at its address referred to in SECTION 14.3 a copy of each Assignment and Acceptance Agreement delivered to and accepted by it and a register for NBPLP CREDIT AGREEMENT the recordation of the names and addresses of the Lenders and the Commitment Percentage, and principal amount of the Borrowings owing to, each Lender from time to time (the "REGISTER"). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and Borrower, Administrative Agent and the Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of the Loan Documents. The Register shall be available for inspection by Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice. Upon the consummation of any assignment in accordance with this SECTION 14.13, SCHEDULE 2.1 shall automatically be deemed amended (to the extent required) by Administrative Agent to reflect the name, address, and, where appropriate, respective Committed Sums under the Facility (as the case may be) of the assignor and assignee.
(d) Upon its receipt of an Assignment and Acceptance Agreement executed by the parties thereto, together with any Notes (to the extent any Principal Debt owed to such assigning Lender is evidenced by a Note or Notes) subject to such assignment and payment of the processing fee, Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of EXHIBIT E hereto, (i) accept such Assignment and Acceptance Agreement, (ii) record the information contained therein in the Register, and (iii) give prompt notice thereof to the parties thereto.
(e) Subject to the provisions of this Section and in accordance with applicable Law, any Lender may, in the ordinary course of its commercial banking business and in accordance with applicable Law, at any time sell to one or more Persons (each a "PARTICIPANT") participating interests in its portion of the Obligation. In the event of any such sale to a Participant, (i) such Lender shall remain a "Lender" under the Loan Documents and the Participant shall not constitute a "Lender" hereunder, (ii) such Lender's obligations under the Loan Documents shall remain unchanged, (iii) such Lender shall remain solely responsible for the performance thereof, (iv) such Lender shall remain the holder of its share of the Principal Debt for all purposes under the Loan Documents, (v) Borrower and Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender's Rights and obligations under the Loan Documents, and (vi) such assigning Lender shall be solely responsible for any withholding taxes or any filing or reporting requirements relating to such participation and shall hold Borrower and Administrative Agent and their respective successors, permitted assigns, officers, directors, employees, agents, and representatives harmless against the same. Participants shall have no Rights under the Loan Documents, other than certain voting Rights as provided below. Subject to the following, each Lender shall be entitled to obtain (on behalf relieved of its Participants) the benefits of SECTION 4 obligations hereunder with respect to all participations in its part of the Obligation outstanding from time to time, so long as Borrower shall not be obligated to pay any amount in excess of the amount that would be due to such Lender under SECTION 4 calculated as though no participations have been made. No Lender shall sell any participating interest under which the Participant shall have any Rights to approve any amendment, modification, Commitment or waiver of any Loan Document, except to the extent such amendment, modification, or waiver extends the due date for payment of any amount in respect of principal (other than mandatory prepayments), interest, or fees due under the Loan Documents, reduces the interest rate or the amount of principal or fees applicable to the Obligation (except such reductions as are contemplated by the Loan Documents), or releases all or any substantial assigned portion of the Guaranties under the Loan Documents; provided that, in those cases where a Participant is entitled to the benefits of SECTION 4 or a Lender grants Rights to its Participants to approve amendments to or waivers of the Loan Documents respecting the matters previously described in this sentence, such Lender must include a voting mechanism in the relevant participation agreement or agreementsthereof, as the case may be, whereby a majority of to the extent that such Lender's portion of obligations shall have been expressly assumed by the Obligation (whether held by Transferee pursuant to such Lender or Participant) shall control the vote for all of such Lender's portion of the Obligation. Except Addition Agreement (and, in the case of a Lender Addition Agreement covering all or the sale of a participating interest to another Lender, the relevant participation agreement shall not permit the Participant to transfer, pledge, assign, sell participations in, or otherwise encumber its remaining portion of the Obligation, unless the consent of the transferring Lender (which consent will not be unreasonably withheld) has been obtained. NBPLP CREDIT AGREEMENT
(f) Notwithstanding any other provision set forth in an assigning Lender's rights and obligations under this Agreement, any Lender may, without notice to, or the consent of Borrower or Administrative Agent, at any time assign and pledge all or any portion of its Borrowings and its Notes (to the extent any Principal Debt owed to such assigning Lender is evidenced by shall cease to be a Note or Notes) party hereto but shall nevertheless continue to any Federal Reserve Bank as collateral security pursuant to Regulation A and any Operating Circular issued by such Federal Reserve Bank or any Lender which is a fund may pledge all or any portion of its Borrowings and its Notes (be entitled to the extent any Principal Debt owed to such assigning Lender is evidenced by a Note or Notes) to its trustee in support benefits of its obligations to its trustee. No such assignment shall release the assigning Lender from its obligations hereunderSections 13.4 and 13.
(g) Any Lender may furnish any information concerning the Loan Parties in the possession of such Lender from time to time to Eligible Assignees and Participants (including prospective Eligible Assignees and Participants), subject to the provisions of SECTION 14.14.
Appears in 1 contract
Samples: Revolving Credit, Term Loan and Security Agreement (Corrpro Companies Inc /Oh/)
Successors and Assigns; Assignments and Participations. (a) This Agreement shall be binding upon, upon and shall inure to the benefit of the parties hereto Borrowers and Lenders and their respective successors and assigns, except that (i) Borrower may not, directly or indirectly, assign or transfer, or attempt to assign or transfer, any of its Rights, duties, or obligations under any Loan Documents without the express written consent of all Lenders, and (ii) except as permitted NBPLP CREDIT AGREEMENT under this Section, no Lender may transfer, pledge, assign, sell any participation in, or otherwise encumber its portion of the Obligation.
(b) Each The foregoing shall not authorize any assignment by any of the Borrowers, of its rights or duties hereunder, and no such assignment shall be made (or effective) without the prior written approval of Lenders.
(c) The Borrowers and Agent acknowledge that each of Lenders may at any time and from time to time, subject to the terms and conditions hereof (including Section 13.14 hereof), (i) assign or grant participations in such Lender’s rights and obligations hereunder and under the other Loan Documents to any commercial bank, savings and loan association, insurance company, pension fund, mutual fund, commercial finance company or other similar financial institution, the identity of which institution is approved by Company and Agent, such approval not to be unreasonably withheld or delayed; provided, however, that (x) the approval of Company shall not be required upon the occurrence and during the continuance of a Default or Event of Default and (y) the approval of Company and Agent shall not be required for any such sale, transfer, assignment or participation to the Affiliate of an assigning Lender, any other Lender or any Federal Reserve Bank and (ii) grant to an SPFV the option to fund all or any part of any Advance that the Granting Lender would otherwise be obligated to fund pursuant to this Agreement; provided, however, that (A) nothing herein shall constitute a commitment by any SPFV to fund any Advance, but if an SPFV elects not to fund all or any part of an Advance hereunder, the Granting Lender shall be obligated to fund such Advance pursuant to the terms hereof; (B) the funding of any Advance by an SPFV hereunder shall be credited against the applicable commitment of the Granting Lender to fund such Advance to the same extent as, and as if, such Advance were funded by such Granting Lender and any payments in respect of an Advance (or portion thereof) previously funded by any SPFV shall be paid, for the account of such SPFV, to its Granting Lender, as agent for such SPFV; (C) each SPFV shall have all the rights that a Lender making such Advances or any portion thereof would have had under this Agreement (provided that each SPFV shall have granted to its Granting Lender an irrevocable power of attorney to deliver and receive all communications and notices under this Agreement and the other Loan Documents and to exercise on behalf of such SPFV all such SPFV’s voting rights under this Agreement) and no additional Note or other instrument shall be required to evidence the Advances or portion thereof funded by any SPFV, each related Granting Lender being deemed to hold its Note as agent for such SPFV to the extent of the Advances or portion thereof funded by such SPFV; (D) Company and Agent agree that no SPFV shall be liable for any indemnity or payment under this Agreement for which a Granting Lender would otherwise be liable so long as, and to the extent, the Granting Lender provides such indemnity or makes such payment, as the case may be; and (E) an SPFV may, at any time and without paying any processing fee therefor, assign to one or more Eligible Assignees participate all or a portion of its Rights interest in any Advances to the Granting Lender or to any financial institutions providing liquidity and/or credit support to or for the account of SPFV to support the funding or maintenance of Advances (provided that the rights of any such assignee or participant shall be subject to and obligations limited as set forth in this clause (ii) of Section 13.8(c)). Each of the Borrowers authorize each Lender to disclose to any prospective assignee or participant, once approved by Company and Agent and to any assignee under an assignment not required to be approved by Company pursuant to clauses (x) and (y) of the Loan Documents first proviso of this Section 13.8(c) and to an SPFV (includingand on a confidential basis to any Rating Agency, commercial paper dealer or provider of any surety or guaranty to such SPFV), any and all financial information in such Lender’s possession concerning such Borrower which has been delivered to such Lender pursuant to this Agreement; provided that each such prospective participant shall execute a confidentiality agreement consistent with the terms of Section 13.13 hereof. Clause (ii), the definition of “Granting Lender,” and the immediately preceding sentence of this Section 13.8(c) may not be amended without limitationthe prior written consent of each Granting Lender, all or a portion any part of its Borrowings and its Notes to whose Advances are being funded by an SPFV at the extent any Principal Debt owed to such assigning Lender is evidenced by a Note or Notes); provided, however, that:
(i) each such assignment shall be to an Eligible Assignee;
(ii) except in the case time of an assignment to another Lender or in the case of an assignment of all of a Lender's Rights and obligations under the Loan Documents, any such partial assignment under the Facility amendment; and each party hereto agrees (which agreement shall not be less than $5,000,000 unless Borrower and Administrative Agent consent thereto (in their sole discretion) in writing which may be evidenced by their acceptance and execution of the related Assignment and Acceptance Agreement; provided that, no partial assignment for the Facility (including any assignment among Lenders) may result in any Lender holding less than $10,000,000, provided further that, a Lender may hold an amount less than $10,000,000 but greater than $5,000,000 only if such Lender shall hold at least $10,000,000 in the aggregate of this Facility and the Multi- Year Revolving Agreement (notwithstanding the foregoing, in the event the Multi-Year Revolving Agreement is terminated, any Lender may continue to hold an amount in this Facility greater than or equal to the amount such Lender held on the date of survive the termination of the Multi-Year Revolving this Agreement);
(iii) the parties to such assignment shall execute and deliver to Administrative Agent for its acceptance an Assignment and Acceptance Agreement in the form of EXHIBIT E heretothat, together with any Notes (prior to the extent date that is one year and one day after the payment in full of all outstanding commercial paper or other senior indebtedness of any Principal Debt owed SPFV, it will not, on the basis of any claim or matter arising under or in connection with or otherwise relating to such assigning Lender is evidenced by a Note or Notes) subject to such assignment and a processing fee of $3,500, including, without limitation, any assignment between Lenders; and
(iv) so long as any Lender is an Agent under this Agreement, such Lender (or an Affiliate of such Lender) shall retain an economic interest in the Loan Documents, will not assign all of its Rights, dutiesinstitute against, or obligations under the Loan Documentsjoin any other person in instituting against such SPFV any bankruptcy, except to an Affiliate of such Lenderreorganization, and will not enter into any Assignment and Acceptance Agreement that would have the effect of such Lender assigning all of its Rightsarrangement, duties, insolvency or obligations under the Loan Documents to any Person other than an Affiliate of such Lender unless such Agent has relinquished such title in accordance with SECTION 13.1 (with respect to Administrative Agent) or SECTION 13.10 (with respect to the other Agents). Upon execution, delivery, and acceptance of such Assignment and Acceptance Agreement, the assignee thereunder shall be a party hereto and, to the extent of such assignment, have the obligations, Rights, and benefits of a Lender under the Loan Documents and the assigning Lender shall, to the extent of such assignment, relinquish its Rights and be released from its obligations under the Loan Documents. Upon the consummation of any assignment pursuant to this Section, but only upon the request of the assignor or assignee made through Administrative Agent, Borrower shall issue appropriate Notes to the assignor and the assignee, reflecting such Assignment and Acceptance. If the assignee is not incorporated liquidation proceedings under the laws of the United States of America or a any state or political subdivision thereof, it shall deliver to Borrower and Administrative Agent certification as to exemption from deduction or withholding of Taxes in accordance with SECTION 4.6.
(cd) Administrative Each assignment by a Lender of any portion of its rights and/or obligations hereunder and under the other Loan Documents, other than assignments to such Lender’s Affiliates or to a Federal Reserve Bank under Section 13.8(c)(ii) hereof, shall be made pursuant to an Assignment Agreement (“Assignment Agreement”) substantially (as determined by Agent), in the form attached hereto as Exhibit E (with appropriate insertions acceptable to Agent) and shall be subject to the terms and conditions hereof, and to the following restrictions:
(i) each partial assignment shall be made as an assignment of a part of all of the assigning Lender’s rights and obligations hereunder;
(ii) each assignment shall be in a minimum amount of the lesser of (x) Five Million Dollars ($5,000,000) and (y) the entire remaining amount of assigning Lender’s interest in the Revolving Credit (and participations in any outstanding Letters of Credit); provided however that, after giving effect to such assignment, in no event shall the entire remaining amount (if any) of assigning Lender’s interest in the Revolving Credit (and participations in any outstanding Letters of Credit) be less than $5,000,000;
(iii) no assignment shall be effective unless Agent has received from the assignee (or from the assigning Lender) an assignment fee of $3,500 for each such assignment. In connection with any assignment subject to this Section 13.8(d), each of the Borrowers and Agent shall be entitled to continue to deal solely and directly with the assigning Lender in connection with the interest so assigned until (x) Agent shall have received a notice of assignment duly executed by the assigning Lender and an Assignment Agreement (with respect thereto) duly executed by the assigning Lender and each assignee; and (y) the assigning Lender shall have delivered to Agent the original of each Note, if any, issued to such Lender, held by the assigning Lender under this Agreement. From and after the date on which Agent shall notify Company and Lender which has accepted an assignment subject to this Section 13.8(d) that the foregoing conditions shall have been satisfied and all consents (if any) required shall have been given, the assignee thereunder shall be deemed to be a party to this Agreement. To the extent that rights and obligations hereunder shall have been assigned to such assignee as provided in such notice of assignment (and Assignment Agreement), such assignee shall have the rights and obligations of a Lender under this Agreement and the other Loan Documents (including without limitation the right to receive fees payable hereunder in respect of the period following such assignment). In addition, the assigning Lender, to the extent that rights and obligations hereunder shall have been assigned by it as provided in such notice of assignment (and Assignment Agreement), but not otherwise, shall relinquish its rights and be released from its obligations under this Agreement and the other Loan Documents. Schedule 1.1 to this Agreement shall be deemed to be amended to reflect the applicable new Percentages of Lenders (including the assignee Lender), taking into account such assignment.
(e) Each Lender agrees that any participation agreement permitted hereunder shall comply with all applicable laws and shall be subject to the following restrictions (which shall be set forth in the applicable participation agreement):
(i) such Lender shall remain the holder of its interest in the Indebtedness hereunder, notwithstanding any such participation;
(ii) except as expressly set forth in this Section 13.8(e) with respect to rights of setoff and the benefits of Section 11 hereof, a participant shall have no direct rights or remedies hereunder;
(iii) such Lender shall retain the sole right and responsibility to enforce the obligations of the Borrowers relating to this Agreement and the other Loan Documents, including, without limitation, the right to proceed against any Guarantors, or cause Agent to do so (subject to the terms and conditions hereof), and the right to approve any amendment, modification or waiver of any provision of this Agreement without the consent of the participant, except in the case of participations granted to an Affiliate of such Lender and except for those matters covered by Section 13.11(a) through (e) and (h) hereof (provided that a participant may exercise approval rights over such matters only on an indirect basis, acting through such Lender, and the Borrowers, Agent and the other Lenders may continue to deal directly with such Lender in connection with such Lender’s rights and duties hereunder); and
(iv) such Lender shall maintain at its address referred to in SECTION 14.3 principal office a copy of each Assignment and Acceptance Agreement delivered to and accepted by it such participation agreement and a register for NBPLP CREDIT AGREEMENT the recordation of the names and addresses of the participants, the percentage of the Indebtedness (and related commitments) held by such participants and the principal amount of each type of Advance to which each such participation agreement relates. Each of the Borrowers agrees that each participant shall be deemed to have the right of setoff under Section 10.4 hereof in respect of its participation interest in amounts owing under this Agreement and the other Loan Documents to the same extent as if the Indebtedness were owing directly to it as a Lender under this Agreement, shall be subject to the pro rata recovery provisions of Section 10.3 hereof and shall be entitled to the benefits of Section 11 hereof. The amount, terms and conditions of any participation shall be as set forth in the participation agreement between Issuing Lender and the Person purchasing such participation, and the Borrowers, Agent and the other Lenders shall not have any responsibility or obligation with respect thereto, or to any Person to whom any such participation may be issued. No such participation shall relieve any issuing Lender of any of its obligations under this Agreement or any of the other Loan Documents, and all actions hereunder shall be conducted as if no such participation had been granted.
(f) Agent shall maintain at its principal office a copy of each Assignment Agreement delivered to it and a register (the “Register”) for the recordation of the names and addresses of Lenders, the Percentages of such Lenders and the Commitment Percentage, and principal amount of the Borrowings each type of Advance owing to, to each such Lender from time to time (the "REGISTER")time. The entries in the Register shall be conclusive and binding for all purposesevidence, absent manifest error, and Borrowerthe Borrowers, Administrative Agent Agent, and the Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder the owner of the Advances recorded therein for all purposes of the Loan Documentsthis Agreement. The Register shall be available for inspection by Borrower the Borrowers or any Lender at any reasonable time and from time to time upon reasonable notice to Agent and a copy of such information shall be provided to any such party on their prior noticewritten request. Upon Agent shall give prompt written notice to Company of the consummation making of any assignment in accordance with this SECTION 14.13, SCHEDULE 2.1 shall automatically be deemed amended (to the extent required) by Administrative Agent to reflect the name, address, and, where appropriate, respective Committed Sums under the Facility (as the case may be) of the assignor and assignee.
(d) Upon its receipt of an Assignment and Acceptance Agreement executed by the parties thereto, together with any Notes (to the extent any Principal Debt owed to such assigning Lender is evidenced by a Note or Notes) subject to such assignment and payment of the processing fee, Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of EXHIBIT E hereto, (i) accept such Assignment and Acceptance Agreement, (ii) record the information contained therein entry in the Register, and (iii) give prompt notice thereof to the parties thereto.
(e) Subject to the provisions of this Section and in accordance with applicable Law, any Lender may, in the ordinary course of its commercial banking business and in accordance with applicable Law, at any time sell to one or more Persons (each a "PARTICIPANT") participating interests in its portion of the Obligation. In the event of any such sale to a Participant, (i) such Lender shall remain a "Lender" under the Loan Documents and the Participant shall not constitute a "Lender" hereunder, (ii) such Lender's obligations under the Loan Documents shall remain unchanged, (iii) such Lender shall remain solely responsible for the performance thereof, (iv) such Lender shall remain the holder of its share of the Principal Debt for all purposes under the Loan Documents, (v) Borrower and Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender's Rights and obligations under the Loan Documents, and (vi) such Lender shall be solely responsible for any withholding taxes Register or any filing or reporting requirements relating to change in such participation and shall hold Borrower and Administrative Agent and their respective successors, permitted assigns, officers, directors, employees, agents, and representatives harmless against the same. Participants shall have no Rights under the Loan Documents, other than certain voting Rights as provided below. Subject to the following, each Lender shall be entitled to obtain (on behalf of its Participants) the benefits of SECTION 4 with respect to all participations in its part of the Obligation outstanding from time to time, so long as Borrower shall not be obligated to pay any amount in excess of the amount that would be due to such Lender under SECTION 4 calculated as though no participations have been made. No Lender shall sell any participating interest under which the Participant shall have any Rights to approve any amendment, modification, or waiver of any Loan Document, except to the extent such amendment, modification, or waiver extends the due date for payment of any amount in respect of principal (other than mandatory prepayments), interest, or fees due under the Loan Documents, reduces the interest rate or the amount of principal or fees applicable to the Obligation (except such reductions as are contemplated by the Loan Documents), or releases all or any substantial portion of the Guaranties under the Loan Documents; provided that, in those cases where a Participant is entitled to the benefits of SECTION 4 or a Lender grants Rights to its Participants to approve amendments to or waivers of the Loan Documents respecting the matters previously described in this sentence, such Lender must include a voting mechanism in the relevant participation agreement or agreements, as the case may be, whereby a majority of such Lender's portion of the Obligation (whether held by such Lender or Participant) shall control the vote for all of such Lender's portion of the Obligation. Except in the case of the sale of a participating interest to another Lender, the relevant participation agreement shall not permit the Participant to transfer, pledge, assign, sell participations in, or otherwise encumber its portion of the Obligation, unless the consent of the transferring Lender (which consent will not be unreasonably withheld) has been obtained. NBPLP CREDIT AGREEMENT
(f) Notwithstanding any other provision set forth in this Agreement, any Lender may, without notice to, or the consent of Borrower or Administrative Agent, at any time assign and pledge all or any portion of its Borrowings and its Notes (to the extent any Principal Debt owed to such assigning Lender is evidenced by a Note or Notes) to any Federal Reserve Bank as collateral security pursuant to Regulation A and any Operating Circular issued by such Federal Reserve Bank or any Lender which is a fund may pledge all or any portion of its Borrowings and its Notes (to the extent any Principal Debt owed to such assigning Lender is evidenced by a Note or Notes) to its trustee in support of its obligations to its trustee. No such assignment shall release the assigning Lender from its obligations hereunderentry.
(g) Any Lender may furnish Nothing in this Agreement, or the other Loan Documents, expressed or implied, is intended to or shall confer on any information concerning Person other than the respective parties hereto and thereto and their successors and assignees and participants permitted hereunder and thereunder any benefit or any legal or equitable right, remedy or other claim under this Agreement, or the other Loan Parties in the possession of such Lender from time to time to Eligible Assignees and Participants (including prospective Eligible Assignees and Participants), subject to the provisions of SECTION 14.14Documents.
Appears in 1 contract
Successors and Assigns; Assignments and Participations. (a) This Agreement shall be binding upon, upon and shall inure to the benefit of the parties hereto Borrowers and Lenders and their respective successors and assigns, except that (i) Borrower may not, directly or indirectly, assign or transfer, or attempt to assign or transfer, any of its Rights, duties, or obligations under any Loan Documents without the express written consent of all Lenders, and (ii) except as permitted NBPLP CREDIT AGREEMENT under this Section, no Lender may transfer, pledge, assign, sell any participation in, or otherwise encumber its portion of the Obligation.
(b) Each The foregoing shall not authorize any assignment by any of the Borrowers, of its rights or duties hereunder, and no such assignment shall be made (or effective) without the prior written approval of Lenders.
(c) The Borrowers and Agent acknowledge that each of Lenders may at any time and from time to time, subject to the terms and conditions hereof (including Section 13.14 hereof), (i) assign or grant participations in such Lender’s rights and obligations hereunder and under the other Loan Documents to any commercial bank, savings and loan association, insurance company, pension fund, mutual fund, commercial finance company or other similar financial institution, the identity of which institution is approved by Company and Agent, such approval not to be unreasonably withheld or delayed; provided, however, that (x) the approval of Company shall not be required upon the occurrence and during the continuance of a Default or Event of Default and (y) the approval of Company and Agent shall not be required for any such sale, transfer, assignment or participation to the Affiliate of an assigning Lender, any other Lender or any Federal Reserve Bank and (ii) grant to an SPFV the option to fund all or any part of any Advance that the Granting Lender would otherwise be obligated to fund pursuant to this Agreement; provided, however, that (A) nothing herein shall constitute a commitment by any SPFV to fund any Advance, but if an SPFV elects not to fund all or any part of an Advance hereunder, the Granting Lender shall be obligated to fund such Advance pursuant to the terms hereof; (B) the funding of any Advance by an SPFV hereunder shall be credited against the applicable commitment of the Granting Lender to fund such Advance to the same extent as, and as if, such Advance were funded by such Granting Lender and any payments in respect of an Advance (or portion thereof) previously funded by any SPFV shall be paid, for the account of such SPFV, to its Granting Lender, as agent for such SPFV; (C) each SPFV shall have all the rights that a Lender making such Advances or any portion thereof would have had under this Agreement (provided that each SPFV shall have granted to its Granting Lender an irrevocable power of attorney to deliver and receive all communications and notices under this Agreement and the other Loan Documents and to exercise on behalf of such SPFV all such SPFV’s voting rights under this Agreement) and no additional Note or other instrument shall be required to evidence the Advances or portion thereof funded by any SPFV, each related Granting Lender being deemed to hold its Note as agent for such SPFV to the extent of the Advances or portion thereof funded by such SPFV; (D) Company and Agent agree that no SPFV shall be liable for any indemnity or payment under this Agreement for which a Granting Lender would otherwise be liable so long as, and to the extent, the Granting Lender provides such indemnity or makes such payment, as the case may be; and (E) an SPFV may, at any time and without paying any processing fee therefor, assign to one or more Eligible Assignees participate all or a portion of its Rights interest in any Advances to the Granting Lender or to any financial institutions providing liquidity and/or credit support to or for the account of SPFV to support the funding or maintenance of Advances (provided that the rights of any such assignee or participant shall be subject to and obligations limited as set forth in this clause (ii) of Section 13.8(c)). Each of the Borrowers authorize each Lender to disclose to any prospective assignee or participant, once approved by Company and Agent and to any assignee under an assignment not required to be approved by Company pursuant to clauses (x) and (y) of the Loan Documents first proviso of this Section 13.8(c) and to an SPFV (includingand on a confidential basis to any Rating Agency, commercial paper dealer or provider of any surety or guaranty to such SPFV), any and all financial information in such Lender’s possession concerning such Borrower which has been delivered to such Lender pursuant to this Agreement; provided that each such prospective participant shall execute a confidentiality agreement consistent with the terms of Section 13.13 hereof. Clause (ii), the definition of “Granting Lender,” and the immediately preceding sentence of this Section 13.8(c) may not be amended without limitationthe prior written consent of each Granting Lender, all or a portion any part of its Borrowings and its Notes to whose Advances are being funded by an SPFV at the extent any Principal Debt owed to such assigning Lender is evidenced by a Note or Notes); provided, however, that:
(i) each such assignment shall be to an Eligible Assignee;
(ii) except in the case time of an assignment to another Lender or in the case of an assignment of all of a Lender's Rights and obligations under the Loan Documents, any such partial assignment under the Facility amendment; and each party hereto agrees (which agreement shall not be less than $5,000,000 unless Borrower and Administrative Agent consent thereto (in their sole discretion) in writing which may be evidenced by their acceptance and execution of the related Assignment and Acceptance Agreement; provided that, no partial assignment for the Facility (including any assignment among Lenders) may result in any Lender holding less than $10,000,000, provided further that, a Lender may hold an amount less than $10,000,000 but greater than $5,000,000 only if such Lender shall hold at least $10,000,000 in the aggregate of this Facility and the Multi- Year Revolving Agreement (notwithstanding the foregoing, in the event the Multi-Year Revolving Agreement is terminated, any Lender may continue to hold an amount in this Facility greater than or equal to the amount such Lender held on the date of survive the termination of the Multi-Year Revolving this Agreement);
(iii) the parties to such assignment shall execute and deliver to Administrative Agent for its acceptance an Assignment and Acceptance Agreement in the form of EXHIBIT E heretothat, together with any Notes (prior to the extent date that is one year and one day after the payment in full of all outstanding commercial paper or other senior indebtedness of any Principal Debt owed SPFV, it will not, on the basis of any claim or matter arising under or in connection with or otherwise relating to such assigning Lender is evidenced by a Note or Notes) subject to such assignment and a processing fee of $3,500, including, without limitation, any assignment between Lenders; and
(iv) so long as any Lender is an Agent under this Agreement, such Lender (or an Affiliate of such Lender) shall retain an economic interest in the Loan Documents, will not assign all of its Rights, dutiesinstitute against, or obligations under the Loan Documentsjoin any other person in instituting against such SPFV any bankruptcy, except to an Affiliate of such Lenderreorganization, and will not enter into any Assignment and Acceptance Agreement that would have the effect of such Lender assigning all of its Rightsarrangement, duties, insolvency or obligations under the Loan Documents to any Person other than an Affiliate of such Lender unless such Agent has relinquished such title in accordance with SECTION 13.1 (with respect to Administrative Agent) or SECTION 13.10 (with respect to the other Agents). Upon execution, delivery, and acceptance of such Assignment and Acceptance Agreement, the assignee thereunder shall be a party hereto and, to the extent of such assignment, have the obligations, Rights, and benefits of a Lender under the Loan Documents and the assigning Lender shall, to the extent of such assignment, relinquish its Rights and be released from its obligations under the Loan Documents. Upon the consummation of any assignment pursuant to this Section, but only upon the request of the assignor or assignee made through Administrative Agent, Borrower shall issue appropriate Notes to the assignor and the assignee, reflecting such Assignment and Acceptance. If the assignee is not incorporated liquidation proceedings under the laws of the United States of America or a any state or political subdivision thereof, it shall deliver to Borrower and Administrative Agent certification as to exemption from deduction or withholding of Taxes in accordance with SECTION 4.6.
(cd) Administrative Each assignment by a Lender of any portion of its rights and/or obligations hereunder and under the other Loan Documents, other than assignments to such Lender’s Affiliates or to a Federal Reserve Bank under Section 13.8(c)(ii) hereof, shall be made pursuant to an Assignment Agreement (“Assignment Agreement”) substantially (as determined by Agent), in the form attached hereto as Exhibit E (with appropriate insertions acceptable to Agent) and shall be subject to the terms and conditions hereof, and to the following restrictions:
(i) each partial assignment shall be made as an assignment of a part of all of the assigning Lender’s rights and obligations hereunder;
(ii) each assignment shall be in a minimum amount of the lesser of (x) Five Million Dollars ($5,000,000) and (y) the entire remaining amount of assigning Lender’s interest in the Revolving Credit (and participations in any outstanding Letters of Credit) and the Term Loan; provided however that, after giving effect to such assignment, in no event shall the entire remaining amount (if any) of assigning Lender’s interest in the Revolving Credit (and participations in any outstanding Letters of Credit) and the Term Loan be less than $5,000,000;
(iii) no assignment shall be effective unless Agent has received from the assignee (or from the assigning Lender) an assignment fee of $3,500 for each such assignment. In connection with any assignment subject to this Section 13.8(d), each of the Borrowers and Agent shall be entitled to continue to deal solely and directly with the assigning Lender in connection with the interest so assigned until (x) Agent shall have received a notice of assignment duly executed by the assigning Lender and an Assignment Agreement (with respect thereto) duly executed by the assigning Lender and each assignee; and (y) the assigning Lender shall have delivered to Agent the original of each Note, if any, issued to such Lender, held by the assigning Lender under this Agreement. From and after the date on which Agent shall notify Company and Lender which has accepted an assignment subject to this Section 13.8(d) that the foregoing conditions shall have been satisfied and all consents (if any) required shall have been given, the assignee thereunder shall be deemed to be a party to this Agreement. To the extent that rights and obligations hereunder shall have been assigned to such assignee as provided in such notice of assignment (and Assignment Agreement), such assignee shall have the rights and obligations of a Lender under this Agreement and the other Loan Documents (including without limitation the right to receive fees payable hereunder in respect of the period following such assignment). In addition, the assigning Lender, to the extent that rights and obligations hereunder shall have been assigned by it as provided in such notice of assignment (and Assignment Agreement), but not otherwise, shall relinquish its rights and be released from its obligations under this Agreement and the other Loan Documents. Schedule 1.1 to this Agreement shall be deemed to be amended to reflect the applicable new Percentages of Lenders (including the assignee Lender), taking into account such assignment.
(e) Each Lender agrees that any participation agreement permitted hereunder shall comply with all applicable laws and shall be subject to the following restrictions (which shall be set forth in the applicable participation agreement):
(i) such Lender shall remain the holder of its interest in the Indebtedness hereunder, notwithstanding any such participation;
(ii) except as expressly set forth in this Section 13.8(e) with respect to rights of setoff and the benefits of Section 11 hereof, a participant shall have no direct rights or remedies hereunder;
(iii) such Lender shall retain the sole right and responsibility to enforce the obligations of the Borrowers relating to this Agreement and the other Loan Documents, including, without limitation, the right to proceed against any Guarantors, or cause Agent to do so (subject to the terms and conditions hereof), and the right to approve any amendment, modification or waiver of any provision of this Agreement without the consent of the participant, except in the case of participations granted to an Affiliate of such Lender and except for those matters covered by Section 13.11(a) through (e) and (h) hereof (provided that a participant may exercise approval rights over such matters only on an indirect basis, acting through such Lender, and the Borrowers, Agent and the other Lenders may continue to deal directly with such Lender in connection with such Lender’s rights and duties hereunder); and
(iv) such Lender shall maintain at its address referred to in SECTION 14.3 principal office a copy of each Assignment and Acceptance Agreement delivered to and accepted by it such participation agreement and a register for NBPLP CREDIT AGREEMENT the recordation of the names and addresses of the participants, the Percentages of the Indebtedness (and related commitments) held by such participants and the principal amount of each type of Advance to which each such participation agreement relates. Each of the Borrowers agrees that each participant shall be deemed to have the right of setoff under Section 10.4 hereof in respect of its participation interest in amounts owing under this Agreement and the other Loan Documents to the same extent as if the Indebtedness were owing directly to it as a Lender under this Agreement, shall be subject to the pro rata recovery provisions of Section 10.3 hereof and shall be entitled to the benefits of Section 11 hereof. The amount, terms and conditions of any participation shall be as set forth in the participation agreement between Issuing Lender and the Person purchasing such participation, and the Borrowers, Agent and the other Lenders shall not have any responsibility or obligation with respect thereto, or to any Person to whom any such participation may be issued. No such participation shall relieve any issuing Lender of any of its obligations under this Agreement or any of the other Loan Documents, and all actions hereunder shall be conducted as if no such participation had been granted.
(f) Agent shall maintain at its principal office a copy of each Assignment Agreement delivered to it and a register (the “Register”) for the recordation of the names and addresses of Lenders, the Percentages of such Lenders and the Commitment Percentage, and principal amount of the Borrowings each type of Advance owing to, to each such Lender from time to time (the "REGISTER")time. The entries in the Register shall be conclusive and binding for all purposesevidence, absent manifest error, and Borrowerthe Borrowers, Administrative Agent Agent, and the Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder the owner of the Advances recorded therein for all purposes of the Loan Documentsthis Agreement. The Register shall be available for inspection by Borrower the Borrowers or any Lender at any reasonable time and from time to time upon reasonable notice to Agent and a copy of such information shall be provided to any such party on their prior noticewritten request. Upon Agent shall give prompt written notice to Company of the consummation making of any assignment in accordance with this SECTION 14.13, SCHEDULE 2.1 shall automatically be deemed amended (to the extent required) by Administrative Agent to reflect the name, address, and, where appropriate, respective Committed Sums under the Facility (as the case may be) of the assignor and assignee.
(d) Upon its receipt of an Assignment and Acceptance Agreement executed by the parties thereto, together with any Notes (to the extent any Principal Debt owed to such assigning Lender is evidenced by a Note or Notes) subject to such assignment and payment of the processing fee, Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of EXHIBIT E hereto, (i) accept such Assignment and Acceptance Agreement, (ii) record the information contained therein entry in the Register, and (iii) give prompt notice thereof to the parties thereto.
(e) Subject to the provisions of this Section and in accordance with applicable Law, any Lender may, in the ordinary course of its commercial banking business and in accordance with applicable Law, at any time sell to one or more Persons (each a "PARTICIPANT") participating interests in its portion of the Obligation. In the event of any such sale to a Participant, (i) such Lender shall remain a "Lender" under the Loan Documents and the Participant shall not constitute a "Lender" hereunder, (ii) such Lender's obligations under the Loan Documents shall remain unchanged, (iii) such Lender shall remain solely responsible for the performance thereof, (iv) such Lender shall remain the holder of its share of the Principal Debt for all purposes under the Loan Documents, (v) Borrower and Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender's Rights and obligations under the Loan Documents, and (vi) such Lender shall be solely responsible for any withholding taxes Register or any filing or reporting requirements relating to change in such participation and shall hold Borrower and Administrative Agent and their respective successors, permitted assigns, officers, directors, employees, agents, and representatives harmless against the same. Participants shall have no Rights under the Loan Documents, other than certain voting Rights as provided below. Subject to the following, each Lender shall be entitled to obtain (on behalf of its Participants) the benefits of SECTION 4 with respect to all participations in its part of the Obligation outstanding from time to time, so long as Borrower shall not be obligated to pay any amount in excess of the amount that would be due to such Lender under SECTION 4 calculated as though no participations have been made. No Lender shall sell any participating interest under which the Participant shall have any Rights to approve any amendment, modification, or waiver of any Loan Document, except to the extent such amendment, modification, or waiver extends the due date for payment of any amount in respect of principal (other than mandatory prepayments), interest, or fees due under the Loan Documents, reduces the interest rate or the amount of principal or fees applicable to the Obligation (except such reductions as are contemplated by the Loan Documents), or releases all or any substantial portion of the Guaranties under the Loan Documents; provided that, in those cases where a Participant is entitled to the benefits of SECTION 4 or a Lender grants Rights to its Participants to approve amendments to or waivers of the Loan Documents respecting the matters previously described in this sentence, such Lender must include a voting mechanism in the relevant participation agreement or agreements, as the case may be, whereby a majority of such Lender's portion of the Obligation (whether held by such Lender or Participant) shall control the vote for all of such Lender's portion of the Obligation. Except in the case of the sale of a participating interest to another Lender, the relevant participation agreement shall not permit the Participant to transfer, pledge, assign, sell participations in, or otherwise encumber its portion of the Obligation, unless the consent of the transferring Lender (which consent will not be unreasonably withheld) has been obtained. NBPLP CREDIT AGREEMENT
(f) Notwithstanding any other provision set forth in this Agreement, any Lender may, without notice to, or the consent of Borrower or Administrative Agent, at any time assign and pledge all or any portion of its Borrowings and its Notes (to the extent any Principal Debt owed to such assigning Lender is evidenced by a Note or Notes) to any Federal Reserve Bank as collateral security pursuant to Regulation A and any Operating Circular issued by such Federal Reserve Bank or any Lender which is a fund may pledge all or any portion of its Borrowings and its Notes (to the extent any Principal Debt owed to such assigning Lender is evidenced by a Note or Notes) to its trustee in support of its obligations to its trustee. No such assignment shall release the assigning Lender from its obligations hereunderentry.
(g) Any Lender may furnish Nothing in this Agreement, or the other Loan Documents, expressed or implied, is intended to or shall confer on any information concerning Person other than the respective parties hereto and thereto and their successors and assignees and participants permitted hereunder and thereunder any benefit or any legal or equitable right, remedy or other claim under this Agreement, or the other Loan Parties in the possession of such Lender from time to time to Eligible Assignees and Participants (including prospective Eligible Assignees and Participants), subject to the provisions of SECTION 14.14Documents.
Appears in 1 contract
Successors and Assigns; Assignments and Participations. (a) This Agreement shall be binding upon, and inure Subject to the benefit of the parties hereto and their respective successors and assigns, except that (iSections 12.2(f) Borrower may not, directly or indirectly, assign or transfer, or attempt to assign or transfer, any of its Rights, duties, or obligations under any Loan Documents without the express written consent of all Lenders, and (ii) except as permitted NBPLP CREDIT AGREEMENT under this Sectionh), no a Lender may transfer, pledge, assign, sell at any participation in, or otherwise encumber its portion of the Obligation.
(b) Each Lender may time assign to one or more Eligible Assignees all or a portion of its Rights rights and obligations under the Loan Documents (including, without limitation, delegate all or a portion of its Borrowings obligations under this Agreement and the other Loan Documents (including all its Notes rights and obligations with respect to the extent any Principal Debt owed Loan) to such assigning Lender is evidenced by one or more Persons (a Note or Notes“Transferee”); provided, however, that:
(i) each so long as no Default or Event of Default has occurred and is continuing, no such assignment Transferee shall be to an Eligible Assignee;
(ii) except in the case of an assignment to another Lender a BDC or in the case of an assignment of all a wholly-owned Subsidiary of a BDC. Notwithstanding anything to the contrary in this Agreement, but subject to the immediately proceeding proviso, there shall be no limitation or restriction on any Lender's Rights ’s ability to assign, pledge or otherwise transfer any Note or other Obligation. The Transferee and obligations under the Loan Documents, any such partial assignment under the Facility shall not be less than $5,000,000 unless Borrower and Administrative Agent consent thereto (in their sole discretion) in writing which may be evidenced by their acceptance and execution of the related Assignment and Acceptance Agreement; provided that, no partial assignment for the Facility (including any assignment among Lenders) may result in any Lender holding less than $10,000,000, provided further that, a Lender may hold an amount less than $10,000,000 but greater than $5,000,000 only if such Lender shall hold at least $10,000,000 in the aggregate of this Facility and the Multi- Year Revolving Agreement (notwithstanding the foregoing, in the event the Multi-Year Revolving Agreement is terminated, any Lender may continue to hold an amount in this Facility greater than or equal to the amount such Lender held on the date of the termination of the Multi-Year Revolving Agreement);
(iii) the parties to such assignment shall execute and deliver to Administrative Agent for its acceptance an Assignment and Acceptance Agreement recording in the form of EXHIBIT E heretoRegister, together with any Notes (to the extent any Principal Debt owed to such assigning a Lender is evidenced by a Note or Notes) subject to such assignment and a processing fee of $3,500, including, without limitation, any assignment between Lenders; and
(iv) so long as any Lender is an Agent under this Addition Agreement, such which shall be in form and substance reasonably acceptable to Agent in its sole discretion (“Lender (or an Affiliate of such Lender) shall retain an economic interest in the Loan Documents, will not assign all of its Rights, duties, or obligations under the Loan Documents, except to an Affiliate of such Lender, and will not enter into any Assignment and Acceptance Agreement that would have the effect of such Lender assigning all of its Rights, duties, or obligations under the Loan Documents to any Person other than an Affiliate of such Lender unless such Agent has relinquished such title in accordance with SECTION 13.1 (with respect to Administrative Agent) or SECTION 13.10 (with respect to the other AgentsAddition Agreement”). Upon such execution, delivery, acceptance and acceptance of recording, from and after the effective date determined pursuant to such Assignment and Acceptance Lender Addition Agreement, (i) the assignee Transferee thereunder shall be a party hereto and, to the extent of provided in such assignmentLender Addition Agreement, have the obligationssame rights, Rights, benefits and benefits of obligations as it would if it were a Lender under the Loan Documents and the assigning Lender shall, to the extent of such assignment, relinquish its Rights and be released from its obligations under the Loan Documents. Upon the consummation of any assignment pursuant to this Section, but only upon the request of the assignor or assignee made through Administrative Agent, Borrower shall issue appropriate Notes to the assignor and the assignee, reflecting such Assignment and Acceptance. If the assignee is not incorporated under the laws of the United States of America or a state thereof, it shall deliver to Borrower and Administrative Agent certification as to exemption from deduction or withholding of Taxes in accordance with SECTION 4.6.
(c) Administrative Agent shall maintain at its address referred to in SECTION 14.3 a copy of each Assignment and Acceptance Agreement delivered to and accepted by it and a register for NBPLP CREDIT AGREEMENT the recordation of the names and addresses of the Lenders and the Commitment Percentage, and principal amount of the Borrowings owing to, each Lender from time to time (the "REGISTER"). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and Borrower, Administrative Agent and the Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of the Loan Documents. The Register shall be available for inspection by Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice. Upon the consummation of any assignment in accordance with this SECTION 14.13, SCHEDULE 2.1 shall automatically be deemed amended (to the extent required) by Administrative Agent to reflect the name, address, and, where appropriate, respective Committed Sums under the Facility (as the case may be) of the assignor and assignee.
(d) Upon its receipt of an Assignment and Acceptance Agreement executed by the parties thereto, together with any Notes (to the extent any Principal Debt owed to such assigning Lender is evidenced by a Note or Notes) subject to such assignment and payment of the processing fee, Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of EXHIBIT E hereto, (i) accept such Assignment and Acceptance Agreement, (ii) record the information contained therein in the Register, and (iii) give prompt notice thereof to the parties thereto.
(e) Subject to the provisions of this Section and in accordance with applicable Law, any Lender may, in the ordinary course of its commercial banking business and in accordance with applicable Law, at any time sell to one or more Persons (each a "PARTICIPANT") participating interests in its portion of the Obligation. In the event of any such sale to a Participant, (i) such Lender shall remain a "Lender" under the Loan Documents and the Participant shall not constitute a "Lender" hereunder, (ii) such Lender's obligations under the Loan Documents shall remain unchanged, (iii) such Lender shall remain solely responsible for the performance thereof, (iv) such Lender shall remain the holder of its share of the Principal Debt for all purposes under the Loan Documents, (v) Borrower and Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender's Rights and obligations under the Loan Documents, and (vi) such assigning Lender shall be solely responsible for any withholding taxes or any filing or reporting requirements relating to such participation and shall hold Borrower and Administrative Agent and their respective successors, permitted assigns, officers, directors, employees, agents, and representatives harmless against the same. Participants shall have no Rights under the Loan Documents, other than certain voting Rights as provided below. Subject to the following, each Lender shall be entitled to obtain (on behalf relieved of its Participants) the benefits of SECTION 4 obligations hereunder with respect to all participations in its part of the Obligation outstanding from time to time, so long as Borrower shall not be obligated to pay any amount in excess of the amount that would be due to such Lender under SECTION 4 calculated as though no participations have been made. No Lender shall sell any participating interest under which the Participant shall have any Rights to approve any amendment, modification, Commitments or waiver of any Loan Document, except to the extent such amendment, modification, or waiver extends the due date for payment of any amount in respect of principal (other than mandatory prepayments), interest, or fees due under the Loan Documents, reduces the interest rate or the amount of principal or fees applicable to the Obligation (except such reductions as are contemplated by the Loan Documents), or releases all or any substantial assigned portion of the Guaranties under the Loan Documents; provided that, in those cases where a Participant is entitled to the benefits of SECTION 4 or a Lender grants Rights to its Participants to approve amendments to or waivers of the Loan Documents respecting the matters previously described in this sentence, such Lender must include a voting mechanism in the relevant participation agreement or agreementsthereof, as the case may be, whereby a majority of to the extent that such Lender's portion of obligations shall have been expressly assumed by the Obligation (whether held by Transferee pursuant to such Lender or Participant) shall control the vote for all of such Lender's portion of the Obligation. Except Addition Agreement (and, in the case of a Lender Addition Agreement covering all or the sale of a participating interest to another Lender, the relevant participation agreement shall not permit the Participant to transfer, pledge, assign, sell participations in, or otherwise encumber its remaining portion of the Obligation, unless the consent of the transferring Lender (which consent will not be unreasonably withheld) has been obtained. NBPLP CREDIT AGREEMENT
(f) Notwithstanding any other provision set forth in an assigning Lender’s rights and obligations under this Agreement, any Lender may, without notice to, or the consent of Borrower or Administrative Agent, at any time assign and pledge all or any portion of its Borrowings and its Notes (to the extent any Principal Debt owed to such assigning Lender is evidenced by shall cease to be a Note or Notes) party hereto but, with respect to any Federal Reserve Bank as collateral security pursuant matters occurring before such assignment, shall nevertheless continue to Regulation A and any Operating Circular issued by such Federal Reserve Bank or any Lender which is a fund may pledge all or any portion of its Borrowings and its Notes (be entitled to the extent any Principal Debt owed to such assigning Lender is evidenced by a Note or Notes) to its trustee in support benefits of its obligations to its trustee. No such assignment shall release the assigning Lender from its obligations hereunderSections 12.4 and 12.
(g) Any Lender may furnish any information concerning the Loan Parties in the possession of such Lender from time to time to Eligible Assignees and Participants (including prospective Eligible Assignees and Participants), subject to the provisions of SECTION 14.14.
Appears in 1 contract
Samples: Loan and Security Agreement (Harvest Capital Credit Corp)
Successors and Assigns; Assignments and Participations. (a) This The provisions of this Agreement shall be binding upon, upon and inure to the benefit of the parties hereto and their respective successors and assignsassigns hereby, except that (i) Borrower may not, directly or indirectly, assign or transfer, or attempt to assign or transfer, otherwise transfer any of its Rights, duties, Rights or obligations under any Loan Documents hereunder without the express prior written consent of all each Lender. Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby, Participants to the extent provided in SECTION 13.12(d) and, to the extent expressly contemplated hereby, the Affiliates of each of the Administrative Agent and the Lenders) any legal or equitable Right, and (ii) except as permitted NBPLP CREDIT AGREEMENT under this Section, no Lender may transfer, pledge, assign, sell any participation inremedy, or otherwise encumber its portion claim under or by reason of the Obligationthis Agreement.
(b) Each Any Lender may at any time assign to one or more Eligible Assignees Persons all or a portion of its Rights and obligations under the Loan Documents this Agreement (including, without limitation, including all or a portion of its Borrowings and its Notes to the extent any Term Loan Principal Debt owed owing to such assigning Lender is evidenced it). The parties to each assignment by a Note or Notes); provided, however, that:
(i) each such assignment shall be to an Eligible Assignee;
(ii) except in the case of an assignment to another Lender or in the case of an assignment of all of a Lender's Rights and obligations under the Loan Documents, any such partial assignment under the Facility shall not be less than $5,000,000 unless Borrower and Administrative Agent consent thereto (in their sole discretion) in writing which may be evidenced by their acceptance and execution of the related Assignment and Acceptance Agreement; provided that, no partial assignment for the Facility (including any assignment among Lenders) may result in any Lender holding less than $10,000,000, provided further that, a Lender may hold an amount less than $10,000,000 but greater than $5,000,000 only if such Lender shall hold at least $10,000,000 in the aggregate of this Facility and the Multi- Year Revolving Agreement (notwithstanding the foregoing, in the event the Multi-Year Revolving Agreement is terminated, any Lender may continue to hold an amount in this Facility greater than or equal to the amount such Lender held on the date of the termination of the Multi-Year Revolving Agreement);
(iii) the parties to such assignment shall execute and deliver to Administrative Agent for its acceptance an Assignment and Acceptance Agreement in the form of EXHIBIT E hereto, together with any Notes (to the extent any Principal Debt owed to such assigning Lender is evidenced by a Note or Notes) subject to such assignment and a processing fee of $3,500, including, without limitation, any assignment between Lenders; and
(iv) so long as any Lender is an Agent under this Agreement, such Lender (or an Affiliate of such Lender) shall retain an economic interest in the Loan Documents, will not assign all of its Rights, duties, or obligations under the Loan Documents, except to an Affiliate of such Lender, and will not enter into any Assignment and Acceptance Agreement that would have the effect of such Lender assigning all of its Rights, duties, or obligations under the Loan Documents to any Person other than an Affiliate of such Lender unless such Agent has relinquished such title in accordance with SECTION 13.1 (with respect to Administrative Agent) or SECTION 13.10 (with respect to the other Agents). Upon execution, delivery, and acceptance of such Assignment and Acceptance Agreement, the assignee thereunder shall be a party hereto and, to the extent of such assignment, have the obligations, Rights, and benefits of a Lender under the Loan Documents and the assigning Lender shall, to the extent of such assignment, relinquish its Rights and be released from its obligations under the Loan Documents. Upon the consummation of any assignment pursuant to this Section, but only upon the request of the assignor or assignee made through Administrative Agent, Borrower shall issue appropriate Notes to the assignor and the assignee, reflecting such Assignment and Acceptance. If the assignee is not incorporated under the laws of the United States of America or a state thereof, it shall deliver to Borrower and Administrative Agent certification as to exemption from deduction or withholding of Taxes in accordance with SECTION 4.6Assumption.
(c) Administrative Agent shall maintain Any Lender may at its address referred to in SECTION 14.3 a copy of each Assignment and Acceptance Agreement delivered to and accepted by it and a register for NBPLP CREDIT AGREEMENT any time, without the recordation of the names and addresses of the Lenders and the Commitment Percentageconsent of, and principal amount of the Borrowings owing or notice to, each Lender from time Borrower or Administrative Agent, sell participations to time any Person (the "REGISTER"). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and Borrower, Administrative Agent and the Lenders may treat each Person whose name is recorded in the Register as other than a Lender hereunder for all purposes of the Loan Documents. The Register shall be available for inspection by natural person or Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice. Upon the consummation of any assignment in accordance with this SECTION 14.13Borrowers' Affiliates or Subsidiaries) (each, SCHEDULE 2.1 shall automatically be deemed amended (to the extent required) by Administrative Agent to reflect the name, address, and, where appropriate, respective Committed Sums under the Facility (as the case may be) of the assignor and assignee.
(d) Upon its receipt of an Assignment and Acceptance Agreement executed by the parties thereto, together with any Notes (to the extent any Principal Debt owed to such assigning Lender is evidenced by a Note or Notes) subject to such assignment and payment of the processing fee, Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of EXHIBIT E hereto, (i) accept such Assignment and Acceptance Agreement, (ii) record the information contained therein in the Register, and (iii) give prompt notice thereof to the parties thereto.
(e) Subject to the provisions of this Section and in accordance with applicable Law, any Lender may, in the ordinary course of its commercial banking business and in accordance with applicable Law, at any time sell to one or more Persons (each a "PARTICIPANT") participating interests in its all or a portion of such Lender's Rights and/or obligations under this Agreement (including all or a portion of the Obligation. In the event of any such sale Term Loan Principal Debt owing to a Participant, it); provided that (i) such Lender shall remain a "Lender" under the Loan Documents and the Participant shall not constitute a "Lender" hereunder, (ii) such Lender's obligations under the Loan Documents this Agreement shall remain unchanged, (iiiii) such Lender shall remain solely responsible to the other parties hereto for the performance thereofof such obligations, and (iviii) such Lender shall remain Borrower, Administrative Agent, and the holder of its share of the Principal Debt for all purposes under the Loan Documents, (v) Borrower and Administrative Agent other Lenders shall continue to deal solely and directly with such Lender in connection TERM LOAN AND SECURITY AGREEMENT with such Lender's Rights and obligations under the Loan Documents, and (vi) this Agreement. Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall be solely responsible for any withholding taxes or any filing or reporting requirements relating retain the sole Right to such participation enforce this Agreement and shall hold Borrower and Administrative Agent and their respective successors, permitted assigns, officers, directors, employees, agents, and representatives harmless against the same. Participants shall have no Rights under the Loan Documents, other than certain voting Rights as provided below. Subject to the following, each Lender shall be entitled to obtain (on behalf of its Participants) the benefits of SECTION 4 with respect to all participations in its part of the Obligation outstanding from time to time, so long as Borrower shall not be obligated to pay any amount in excess of the amount that would be due to such Lender under SECTION 4 calculated as though no participations have been made. No Lender shall sell any participating interest under which the Participant shall have any Rights to approve any amendment, modification, or waiver of any Loan Documentprovision of this Agreement; provided that such agreement or instrument may provide that such Lender will not, except without the consent of the Participant, agree to the extent such any amendment, modification, or waiver extends with respect to the following: extending the due date for payment of any amount in respect of principal (other than mandatory prepayments), interest, or fees due under the Loan Documents, reduces reducing the interest rate or the amount of principal or fees applicable to the Obligation (except such reductions as are contemplated by the Loan Documents), or releases releasing all or any substantial portion of the Guaranties Collateral for the Obligation under the Loan Documents; provided that, in those cases where a that affects such Participant. Borrower agrees that each Participant is shall be entitled to the benefits of SECTION 4 or to the same extent as if it were a Lender grants Rights to and had acquired its Participants to approve amendments to or waivers of the Loan Documents respecting the matters previously described in this sentence, such Lender must include a voting mechanism in the relevant participation agreement or agreements, as the case may be, whereby a majority of such Lender's portion of the Obligation (whether held interest by such Lender or Participant) shall control the vote for all of such Lender's portion of the Obligation. Except in the case of the sale of a participating interest to another Lender, the relevant participation agreement shall not permit the Participant to transfer, pledge, assign, sell participations in, or otherwise encumber its portion of the Obligation, unless the consent of the transferring Lender (which consent will not be unreasonably withheld) has been obtained. NBPLP CREDIT AGREEMENTassignment.
(fd) Notwithstanding any other provision set forth in this Agreement, any Any Lender may, without notice to, or the consent of Borrower or Administrative Agent, may at any time pledge or assign and pledge a security interest in all or any portion of its Borrowings and its Notes (Rights under this Agreement to the extent secure obligations of such Lender, including without limitation any Principal Debt owed pledge or assignment to such assigning Lender is evidenced by secure obligations to a Note or Notes) to any Federal Reserve Bank as collateral security pursuant to Regulation A and Bank; provided that no such pledge or assignment shall release such Lender from any Operating Circular issued by such Federal Reserve Bank or any Lender which is a fund may pledge all or any portion of its Borrowings and its Notes (to the extent any Principal Debt owed to such assigning Lender is evidenced by a Note or Notes) to its trustee in support of its obligations to its trustee. No hereunder or substitute any such assignment shall release the assigning Lender from its obligations hereunder.
(g) Any Lender may furnish any information concerning the Loan Parties in the possession of pledgee or assignee for such Lender from time to time to Eligible Assignees and Participants (including prospective Eligible Assignees and Participants), subject to the provisions of SECTION 14.14as a party hereto.
Appears in 1 contract
Samples: Term Loan and Security Agreement (American Real Estate Partners L P)
Successors and Assigns; Assignments and Participations. (a) This The provisions of this Agreement shall be binding upon, upon and inure to the benefit of the parties hereto and their respective successors and assignsassigns permitted hereby, except that (i) the Borrower may not, directly or indirectly, not assign or transfer, or attempt to assign or transfer, otherwise transfer any of its Rights, duties, rights or obligations under any Loan Documents hereunder without the express prior written consent of all Lenders, the Agent (and any attempted assignment or transfer by the Borrower without such consent shall be null and void) and (ii) the Lenders may not assign or otherwise transfer its rights or obligations hereunder except as permitted NBPLP CREDIT AGREEMENT under to an assignee (“Assignee”). Subject to acceptance and recording thereof pursuant to this Section, no Lender may transfer, pledge, assign, sell any participation in, or otherwise encumber its portion of from and after the Obligation.
(b) Each Lender may assign to one or more Eligible Assignees all or a portion of its Rights and obligations under the Loan Documents (including, without limitation, all or a portion of its Borrowings and its Notes to the extent any Principal Debt owed to such assigning Lender is evidenced by a Note or Notes); provided, however, that:
(i) effective date specified in each such assignment shall be to an Eligible Assignee;
(ii) except in the case of an assignment to another Lender or in the case of an assignment of all of a Lender's Rights and obligations under the Loan Documents, any such partial assignment under the Facility shall not be less than $5,000,000 unless Borrower and Administrative Agent consent thereto (in their sole discretion) in writing which may be evidenced by their acceptance and execution of the related Assignment and Acceptance Agreement; provided that, no partial assignment for Assumption the Facility (including any assignment among Lenders) may result in any Lender holding less than $10,000,000, provided further that, a Lender may hold an amount less than $10,000,000 but greater than $5,000,000 only if such Lender shall hold at least $10,000,000 in the aggregate of this Facility and the Multi- Year Revolving Agreement (notwithstanding the foregoing, in the event the Multi-Year Revolving Agreement is terminated, any Lender may continue to hold an amount in this Facility greater than or equal to the amount such Lender held on the date of the termination of the Multi-Year Revolving Agreement);
(iii) the parties to such assignment shall execute and deliver to Administrative Agent for its acceptance an Assignment and Acceptance Agreement in the form of EXHIBIT E hereto, together with any Notes (to the extent any Principal Debt owed to such assigning Lender is evidenced by a Note or Notes) subject to such assignment and a processing fee of $3,500, including, without limitation, any assignment between Lenders; and
(iv) so long as any Lender is an Agent under this Agreement, such Lender (or an Affiliate of such Lender) shall retain an economic interest in the Loan Documents, will not assign all of its Rights, duties, or obligations under the Loan Documents, except to an Affiliate of such Lender, and will not enter into any Assignment and Acceptance Agreement that would have the effect of such Lender assigning all of its Rights, duties, or obligations under the Loan Documents to any Person other than an Affiliate of such Lender unless such Agent has relinquished such title in accordance with SECTION 13.1 (with respect to Administrative Agent) or SECTION 13.10 (with respect to the other Agents). Upon execution, delivery, and acceptance of such Assignment and Acceptance Agreement, the assignee Assignee thereunder shall be a party hereto and, to the extent of the interest assigned by such assignmentAssignment and Assumption, have the obligations, Rights, rights and benefits obligations of a Lender under the Loan Documents this Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by such assignmentAssignment and Assumption, relinquish its Rights and be released from its obligations under this Agreement (and, in the Loan Documents. Upon the consummation case of any assignment pursuant to this Section, but only upon the request an Assignment and Assumption covering all of the assignor or assignee made through Administrative assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto but shall continue to be entitled to the benefits of Section 9.5). The Agent, Borrower shall issue appropriate Notes to the assignor and the assignee, reflecting such Assignment and Acceptance. If the assignee is not incorporated under the laws acting for this purpose as an agent of the United States of America or a state thereofBorrower, it shall deliver to Borrower and Administrative Agent certification as to exemption from deduction or withholding of Taxes in accordance with SECTION 4.6.
(c) Administrative Agent shall maintain at one of its address referred to in SECTION 14.3 offices a copy of each Assignment and Acceptance Agreement Assumption delivered to and accepted by it and a register for NBPLP CREDIT AGREEMENT the recordation of the names and addresses of the Lenders and the Commitment PercentageLenders, and principal amount of the Borrowings Loans owing to, each Lender pursuant to the terms hereof from time to time (the "REGISTER"“Register”). The entries in the Register shall be conclusive and binding for all purposes, absent manifest errorconclusive, and the Borrower, Administrative Agent the Agent, and the Lenders may treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of the Loan Documents. The Register shall be available for inspection by Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice. Upon the consummation of any assignment in accordance with this SECTION 14.13Agreement, SCHEDULE 2.1 shall automatically be deemed amended (notwithstanding notice to the extent required) by Administrative Agent to reflect the name, address, and, where appropriate, respective Committed Sums under the Facility (as the case may be) of the assignor and assignee.
(d) contrary. Upon its receipt of an a duly completed Assignment and Acceptance Agreement Assumption executed by the parties thereto, together with any Notes (to the extent any Principal Debt owed to such an assigning Lender is evidenced by and an Assignee, the Assignee’s completed administrative questionnaire (unless the Assignee shall already be a Note or Notes) subject Lender hereunder), and any written consent to such assignment and payment of required by this Section, the processing fee, Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of EXHIBIT E hereto, (i) shall accept such Assignment and Acceptance Agreement, (ii) Assumption and record the information contained therein in the Register, and (iii) give prompt notice thereof to . No assignment shall be effective for purposes of this Agreement unless it has been recorded in the parties theretoRegister as provided in this paragraph.
(eb) Subject to the provisions of this Section and in accordance with applicable Law, any Any Lender may, in without the ordinary course consent of its commercial banking business and in accordance with applicable Lawthe Borrower or the Agent, at any time sell participations to one or more Persons entities in all or a portion of such Lender’s rights and obligations under this Agreement (each including all or a "PARTICIPANT") participating interests in its portion of the Obligation. In the event of any such sale Loans owing to a Participant, it); provided that (i) such Lender shall remain a "Lender" under the Loan Documents and the Participant shall not constitute a "Lender" hereunder, (ii) such Lender's ’s obligations under the Loan Documents this Agreement shall remain unchanged, (iiiii) such Lender shall remain solely responsible to the other parties hereto for the performance thereofof such obligations and (iii) the Borrower, (iv) such Lender shall remain the holder of its share of Agent and the Principal Debt for all purposes under the Loan Documents, (v) Borrower and Administrative Agent other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender's Rights ’s rights and obligations under the Loan Documents, and (vi) this Agreement. Any agreement pursuant to which a Lender sells such a participation shall provide that such Lender shall be solely responsible for any withholding taxes or any filing or reporting requirements relating retain the sole right to such participation enforce this Agreement and shall hold Borrower and Administrative Agent and their respective successors, permitted assigns, officers, directors, employees, agents, and representatives harmless against the same. Participants shall have no Rights under the Loan Documents, other than certain voting Rights as provided below. Subject to the following, each Lender shall be entitled to obtain (on behalf of its Participants) the benefits of SECTION 4 with respect to all participations in its part of the Obligation outstanding from time to time, so long as Borrower shall not be obligated to pay any amount in excess of the amount that would be due to such Lender under SECTION 4 calculated as though no participations have been made. No Lender shall sell any participating interest under which the Participant shall have any Rights to approve any amendment, modification, modification or waiver of any Loan Document, except to the extent such amendment, modification, or waiver extends the due date for payment provision of any amount in respect of principal (other than mandatory prepayments), interest, or fees due under the Loan Documents, reduces the interest rate or the amount of principal or fees applicable to the Obligation (except such reductions as are contemplated by the Loan Documents), or releases all or any substantial portion of the Guaranties under the Loan Documentsthis Agreement; provided that, in those cases where a Participant is entitled to the benefits of SECTION 4 or a Lender grants Rights to its Participants to approve amendments to or waivers of the Loan Documents respecting the matters previously described in this sentence, that such agreement may provide that such Lender must include a voting mechanism in the relevant participation agreement or agreementswill not, as the case may be, whereby a majority of such Lender's portion of the Obligation (whether held by such Lender or Participant) shall control the vote for all of such Lender's portion of the Obligation. Except in the case of the sale of a participating interest to another Lender, the relevant participation agreement shall not permit the Participant to transfer, pledge, assign, sell participations in, or otherwise encumber its portion of the Obligation, unless without the consent of the transferring Lender loan participant, agree to any amendment, modification or waiver that (which consent will not be unreasonably withheldx) has been obtained. NBPLP CREDIT AGREEMENT
(f) Notwithstanding any other provision set forth in this Agreement, any Lender may, without notice to, or requires the consent of Borrower or Administrative Agent, at any time assign and pledge all or any portion of its Borrowings and its Notes (to the extent any Principal Debt owed to such assigning each Lender is evidenced by a Note or Notes) to any Federal Reserve Bank as collateral security directly affected thereby pursuant to Regulation A Section 9.1 and any Operating Circular issued by (y) directly affects such Federal Reserve Bank or any Lender which is a fund may pledge all or any portion of its Borrowings and its Notes (to the extent any Principal Debt owed to such assigning Lender is evidenced by a Note or Notes) to its trustee in support of its obligations to its trustee. No such assignment shall release the assigning Lender from its obligations hereunderloan participant.
(g) Any Lender may furnish any information concerning the Loan Parties in the possession of such Lender from time to time to Eligible Assignees and Participants (including prospective Eligible Assignees and Participants), subject to the provisions of SECTION 14.14.
Appears in 1 contract
Samples: Credit Agreement (Cadiz Inc)
Successors and Assigns; Assignments and Participations. (a) This The provisions of this Agreement shall be binding upon, upon and inure to the benefit of the parties hereto and their respective successors and assignsassigns permitted hereby (including any Affiliate of the Issuing Bank that issues any Letter of Credit), except that (i) no Borrower may not, directly or indirectly, assign or transfer, or attempt to assign or transfer, otherwise transfer any of its Rights, duties, rights or obligations under any Loan Documents hereunder without the express prior written consent of all Lenders, each Lender (and any attempted assignment or transfer by such Borrower without such consent shall be null and void) and (ii) except as permitted NBPLP CREDIT AGREEMENT under this Section, no Lender may transfer, pledge, assign, sell any participation in, assign or otherwise encumber transfer its portion rights or obligations hereunder except in accordance with this Section. Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby (including any Affiliate of the ObligationIssuing Bank that issues any Letter of Credit), Participants (to the extent provided in clause (c) of this Section) and, to the extent expressly contemplated hereby, the Related Parties of each of the Administrative Agent, the Issuing Bank and the Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement.
(bi) Each Subject to the conditions set forth in clause (b)(ii) below, any Lender may assign to one or more Eligible Assignees assignees (each, an “Assignee”) all or a portion of its Rights rights and obligations under the Loan Documents this Agreement (including, without limitation, including all or a portion of its Borrowings Commitments and its Notes the Loans at the time owing to it) with the extent prior written consent (such consent not to be unreasonably withheld or delayed) of:
(A) the Parent Borrower, provided that no consent of the Parent Borrower shall be required in connection with the primary syndication of Term Commitments and/or Term Loans or for an assignment to a Lender, an Affiliate of a Lender, an Approved Fund or, if an Event of Default under Section 10.01(a), (e), (f) or (g) has occurred and is continuing, any Principal Debt owed to such assigning Lender is evidenced by a Note or Notes)other Person; provided, howeverfurther, thatthat if the Parent Borrower shall not respond to a request for a consent to an assignment within 10 Business Days, it shall be deemed to have consented to such assignment;
(B) the Administrative Agent, provided that no consent of the Administrative Agent shall be required for an assignment of a given Class of Loans to a Lender holding such Class of Loans, an Affiliate of such a Lender or an Approved Fund of such a Lender; and
(C) the Issuing Bank and the Swingline Lender, provided that no consent of the Issuing Bank or the Swingline Lender shall be required for an assignment of all or any portion of a Term Loan or for an assignment to a Lender, an Affiliate of a Lender or an Approved Fund.
(ii) Assignments shall be subject to the following additional conditions:
(i) each such assignment shall be to an Eligible Assignee;
(iiA) except in the case of an assignment to another a Lender, an Affiliate of a Lender or in the case of an assignment of all the entire remaining amount of a the assigning Lender's Rights and obligations under ’s Commitment or Loans of any Class, the Loan Documents, any amount of the Commitment or Loans of the assigning Lender subject to each such partial assignment under (determined as of the Facility date the Assignment Agreement with respect to such assignment is delivered to the Administrative Agent) shall not be less than $5,000,000 unless Borrower and Administrative Agent consent thereto (in their sole discretion) in writing which may be evidenced by their acceptance and execution of the related Assignment and Acceptance Agreement; provided that, no partial assignment for the Facility (including any assignment among Lenders) may result in any Lender holding less than $10,000,000, provided further that, a Lender may hold an amount less than $10,000,000 but greater than $5,000,000 only if such Lender shall hold at least $10,000,000 in the aggregate of this Facility and the Multi- Year Revolving Agreement (notwithstanding the foregoing5.0 million or, in the event the Multi-Year Revolving Agreement is terminatedcase of Term Loans, any Lender may continue to hold an amount in this Facility greater than or equal to the amount such Lender held on the date $1.0 million unless each of the termination Parent Borrower and the Administrative Agent otherwise consent (such consent not to be unreasonably withheld or delayed), provided that no such consent of the Multi-Year Revolving Agreement)Parent Borrower shall be required if an Event of Default has occurred and is continuing;
(iiiB) each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender’s rights and obligations under this Agreement, provided that this clause shall not be construed to prohibit the assignment of a proportionate part of all the assigning Lender’s rights and obligations in respect of one Class of Commitments or Loans;
(C) the parties to such each assignment shall execute and deliver to the Administrative Agent for its acceptance an Assignment and Acceptance Agreement in the form of EXHIBIT E heretoAgreement, together with a processing and recordation fee of $3,500 payable by the Assignee unless such parties otherwise agree;
(D) the assignee, if it shall not be a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire in which the assignee designates one or more credit contacts to whom all syndicate-level information (which may contain material non-public information about the Parent Borrower and its affiliates and its Related Parties or their respective securities) will be made available and who may receive such information in accordance with the Assignee’s compliance procedures and applicable laws, including Federal and state securities laws;
(E) in case of an assignment to a Sponsor Affiliated Lender, each Sponsor Affiliated Lender shall acknowledge and agree that they are each “insiders” under Section 101(31) of the Bankruptcy Code and, as such, the claims associated with the Loans and Commitments owned by it shall be non-voting and, under sections 1126 and 1129 of the Bankruptcy Code, shall not be counted if voted in the event that any Notes (proceeding thereunder shall be instituted by or against the Parent Borrower or any other Loan Party under any applicable Debtor Relief Laws, and such Sponsor Affiliated Lender shall further acknowledge and agree that to the extent any Principal Debt owed it votes in contravention of the terms of this Section 12.06, it shall consent and not otherwise object to such assigning Lender is evidenced by a Note or Notesbeing designated as having voted “not in good faith” under subsections (c) subject to such assignment and a processing fee (e) of $3,500Section 1126 of the Bankruptcy Code , includingor, without limitation, any assignment between Lenders; and
(iv) so long as any Lender is an Agent under this Agreement, such Lender (or an Affiliate of such Lender) shall retain an economic interest in the Loan Documents, will not assign all of its Rights, duties, or obligations under the Loan Documents, except to an Affiliate of such Lender, and will not enter into any Assignment and Acceptance Agreement that would have the effect of such Lender assigning all of its Rights, duties, or obligations under the Loan Documents to any Person other than an Affiliate of such Lender unless such Agent has relinquished such title in accordance with SECTION 13.1 (with respect to Administrative Agent) or SECTION 13.10 (with respect to the other Agents). Upon execution, delivery, and acceptance of such Assignment and Acceptance Agreement, the assignee thereunder shall be a party hereto andalternatively, to the extent of such assignment, have that the obligations, Rights, and benefits of a Lender under the Loan Documents and the assigning Lender shall, to the extent of such assignment, relinquish its Rights and be released from its obligations under the Loan Documents. Upon the consummation of foregoing non-voting designation is deemed unenforceable for any assignment pursuant to this Section, but only upon the request of the assignor or assignee made through Administrative Agent, Borrower shall issue appropriate Notes to the assignor and the assignee, reflecting such Assignment and Acceptance. If the assignee is not incorporated under the laws of the United States of America or a state thereof, it shall deliver to Borrower and Administrative Agent certification as to exemption from deduction or withholding of Taxes in accordance with SECTION 4.6.
(c) Administrative Agent shall maintain at its address referred to in SECTION 14.3 a copy of each Assignment and Acceptance Agreement delivered to and accepted by it and a register for NBPLP CREDIT AGREEMENT the recordation of the names and addresses of the Lenders and the Commitment Percentage, and principal amount of the Borrowings owing toreason, each Sponsor Affiliated Lender from time to time (the "REGISTER"). The entries shall vote in such proceedings in the Register shall be conclusive and binding for all purposes, absent manifest error, and Borrower, Administrative Agent and the Lenders may treat each Person whose name is recorded in the Register manner as a Lender hereunder for all purposes of the Loan Documents. The Register shall be available for inspection by Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice. Upon the consummation of any assignment in accordance with this SECTION 14.13, SCHEDULE 2.1 shall automatically be deemed amended (to the extent required) by Administrative Agent to reflect the name, address, and, where appropriate, respective Committed Sums under the Facility (as the case may be) of the assignor and assignee.
(d) Upon its receipt of an Assignment and Acceptance Agreement executed directed by the parties thereto, together with any Notes (to the extent any Principal Debt owed to such assigning Lender is evidenced by a Note or Notes) subject to such assignment and payment of the processing fee, Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of EXHIBIT E hereto, (i) accept such Assignment and Acceptance Agreement, (ii) record the information contained therein in the Register, and (iii) give prompt notice thereof to the parties thereto.
(e) Subject to the provisions of this Section and in accordance with applicable Law, any Lender may, in the ordinary course of its commercial banking business and in accordance with applicable Law, at any time sell to one or more Persons (each a "PARTICIPANT") participating interests in its portion of the Obligation. In the event of any such sale to a Participant, (i) such Lender shall remain a "Lender" under the Loan Documents and the Participant shall not constitute a "Lender" hereunder, (ii) such Lender's obligations under the Loan Documents shall remain unchanged, (iii) such Lender shall remain solely responsible for the performance thereof, (iv) such Lender shall remain the holder of its share of the Principal Debt for all purposes under the Loan Documents, (v) Borrower and Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender's Rights and obligations under the Loan Documents, and (vi) such Lender shall be solely responsible for any withholding taxes or any filing or reporting requirements relating to such participation and shall hold Borrower and Administrative Agent and their respective successors, permitted assigns, officers, directors, employees, agents, and representatives harmless against the same. Participants shall have no Rights under the Loan Documents, other than certain voting Rights as provided below. Subject to the following, each Lender shall be entitled to obtain (on behalf of its Participants) the benefits of SECTION 4 with respect to all participations in its part of the Obligation outstanding from time to time, so long as Borrower shall not be obligated to pay any amount in excess of the amount that would be due to such Lender under SECTION 4 calculated as though no participations have been made. No Lender shall sell any participating interest under which the Participant shall have any Rights to approve any amendment, modification, or waiver of any Loan DocumentMajority Lenders, except to the extent that any plan of reorganization proposes to treat the Obligations held by such amendmentSponsor Affiliated Lender in a manner that is less favorable in any material respect to such Sponsor Affiliated Lender than the proposed treatment of similar Obligations held by Lenders that are not Sponsor Affiliated Lenders; provided that this clause (E) shall not apply to Affiliated Debt Funds,
(F) in case of an assignment to a Sponsor Affiliated Lender, modification(1) after giving effect to such assignment, to all other assignments with all Sponsor Affiliated Lenders, the aggregate principal amount of all Loans and Commitments then held by all Sponsor Affiliated Lenders shall not exceed 20% of the aggregate unpaid principal amount of the Term Loans then outstanding, (2) no Revolving Credit Loans or waiver extends the due date for payment Revolving Credit Commitments shall be assigned to any Sponsor Affiliated Lender, (3) no proceeds of any amount in respect of principal Revolving Credit Loans shall be used, directly or indirectly, to consummate such assignment, (4) such Sponsor Affiliated Lender (other than mandatory prepayments), interest, or fees due under the Loan Documents, reduces the interest rate or the amount of principal or fees applicable an Affiliated Debt Fund) will not receive information provided solely to the Obligation (except such reductions as are contemplated by the Loan Documents), or releases all or any substantial portion of the Guaranties under the Loan Documents; provided that, in those cases where a Participant is entitled to the benefits of SECTION 4 or a Lender grants Rights to its Participants to approve amendments to or waivers of the Loan Documents respecting the matters previously described in this sentence, such Lender must include a voting mechanism in the relevant participation agreement or agreements, as the case may be, whereby a majority of such Lender's portion of the Obligation (whether held by such Lender or Participant) shall control the vote for all of such Lender's portion of the Obligation. Except in the case of the sale of a participating interest to another Lender, the relevant participation agreement shall not permit the Participant to transfer, pledge, assign, sell participations in, or otherwise encumber its portion of the Obligation, unless the consent of the transferring Lender (which consent Lenders and will not be unreasonably withheldpermitted to attend or participate in (or receive any notice of) has been obtained. NBPLP CREDIT AGREEMENTLender meetings or conference calls and (5) for purposes of any amendment, waiver or modification of any Loan Document that does not in each case adversely affect such Sponsor Affiliated Lender (in its capacity as a Lender) in any material respect as compared to other Lenders, such Sponsor Affiliated Lender will be deemed to have voted in the same proportion as the Lenders that are not Sponsor Affiliated Lenders voting on such matter; provided that an Affiliated Debt Fund will not be subject to such voting limitations and will be entitled to vote as if it was a Lender; and
(fG) Notwithstanding any other provision set forth in this Agreementnotwithstanding anything herein to the contrary, any Lender may, without notice to, or the consent of Borrower or Administrative Agent, at any time assign and pledge all or any portion of its Borrowings Holdings and its Notes (to the extent Subsidiaries may not be assignees of any Principal Debt owed to such assigning Lender is evidenced by a Note Loans or Notes) to any Federal Reserve Bank as collateral security Commitments other than Term Loans pursuant to Regulation A Section 2.08(j) and any Operating Circular issued Term Loans acquired by Holdings or its Subsidiaries under such Federal Reserve Bank or any Lender which is a fund may pledge all or any portion of its Borrowings and its Notes (to the extent any Principal Debt owed to such assigning Lender is evidenced by a Note or Notes) to its trustee in support of its obligations to its trustee. No such assignment Section shall release the assigning Lender from its obligations hereunderbe immediately cancelled.
(g) Any Lender may furnish any information concerning the Loan Parties in the possession of such Lender from time to time to Eligible Assignees and Participants (including prospective Eligible Assignees and Participants), subject to the provisions of SECTION 14.14.
Appears in 1 contract
Successors and Assigns; Assignments and Participations. (a) This Agreement shall be binding upon, and inure to the benefit of the parties hereto and their respective successors and assigns, except that (i) Borrower may not, directly or indirectly, assign or transfer, or attempt to assign or transfer, any of its Rights, duties, or obligations under any Loan Documents without the express written consent of all Lenders, and (ii) except as permitted NBPLP CREDIT AGREEMENT under this Section, no Lender may transfer, pledge, assign, sell any participation in, or otherwise encumber its portion of the Obligation.
(b) Each Lender may assign to one or more Eligible Assignees all or a portion of its Rights and obligations under the Loan Documents (including, without limitation, all or a portion of its Borrowings and its Notes to the extent any Principal Debt owed to such assigning Lender is evidenced by a Note or Notes); provided, however, that:
(i) each such assignment shall be to an Eligible Assignee;
(ii) except in the case of an assignment to another Lender or in the case of an assignment of all of a Lender's Rights and obligations under the Loan Documents, any such partial assignment under the Facility shall not be less than $5,000,000 unless Borrower and Administrative Agent consent thereto (in their sole discretion) in writing which may be evidenced by their acceptance and execution of the related Assignment and Acceptance Agreement; provided that, no partial assignment for the Facility (including any assignment among Lenders) may result in any Lender holding less than $10,000,000, provided further that, a Lender may hold an amount less than $10,000,000 but greater than $5,000,000 only if such Lender shall hold at least $10,000,000 in the aggregate of this Facility and the Multi- Year Revolving Agreement (notwithstanding the foregoing, in the event the Multi-Year Revolving Agreement is terminated, any Lender may continue to hold an amount in this Facility greater than or equal to the amount such Lender held on the date of the termination of the Multi-Year Revolving Agreement);
(iii) the parties to such assignment (including, without limitation, any assignment between Lenders) shall execute and deliver to Administrative Agent for its acceptance an Assignment and Acceptance Agreement in substantially the form of EXHIBIT Exhibit E hereto, together with any Notes (to the extent any Principal Debt owed to such assigning Lender is evidenced by a Note or Notes) subject to such assignment and a processing fee of $3,500, including, without limitation, any assignment between Lenders1,000; and
(iv) so long as any Lender is an Administrative Agent under this Agreement, such Lender (or an Affiliate of such Lender) shall retain an economic interest in the Loan Documents, will not assign all of its Rights, duties, or obligations under the Loan Documents, except to an Affiliate of such Lender, and will not enter into any Assignment and Acceptance Agreement that would have the effect of such Lender assigning all of its Rights, duties, or obligations as a Lender under the Loan Documents to any Person other than an Affiliate of such Lender unless such Administrative Agent has relinquished such title in accordance with SECTION 13.1 (with respect to Administrative Agent) or SECTION 13.10 (with respect to the other Agents)Section 13.1. Upon execution, delivery, and acceptance of such Assignment and Acceptance Agreement, the assignee thereunder thereunder, if not already a party hereto, shall be become a party hereto and, to the extent of such assignment, have the obligations, Rights, and benefits of a Lender under the Loan Documents and the assigning Lender shall, to the extent of such assignment, relinquish its Rights and be released from its obligations under the Loan Documents; provided, however, the assigning Lender shall retain any indemnity rights hereunder for the period prior to such assignment. Upon the consummation of any assignment pursuant to this Section, but only upon the request of the assignor or assignee made through Administrative Agent, Borrower shall issue appropriate Notes to the assignor and the assignee, reflecting such Assignment and Acceptance. If the assignee is not incorporated under the laws of the United States of America or a state thereof, it shall deliver to Borrower and Administrative Agent certification as to exemption from deduction or withholding of Taxes in accordance with SECTION Section 4.6.
(c) Administrative Agent shall maintain at its address referred to in SECTION Section 14.3 a copy of each Assignment and Acceptance Agreement delivered to and accepted by it and a register for NBPLP CREDIT AGREEMENT the recordation of the names and addresses of the Lenders and the Commitment Percentage, and principal amount of the Borrowings owing to, each Lender from time to time (the "REGISTER"). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and Borrower, Administrative Agent and the Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of the Loan Documents. The Register shall be available for inspection by Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice. Upon the consummation of any assignment in accordance with this SECTION Section 14.13, SCHEDULE Schedule 2.1 shall automatically be deemed amended (to the extent required) by Administrative Agent to reflect the name, address, and, where appropriate, respective Committed Sums under the Facility (as the case may be) of the assignor and assignee.
(d) Upon its receipt of an Assignment and Acceptance Agreement executed by the parties thereto, together with any Notes (to the extent any Principal Debt owed to such assigning Lender is evidenced by a Note or Notes) subject to such assignment and payment of the processing fee, Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of EXHIBIT Exhibit E hereto, promptly (i) accept such Assignment and Acceptance Agreement, (ii) record the information contained therein in the Register, and (iii) give prompt notice thereof to the parties thereto.
(e) Subject to the provisions of this Section and in accordance with applicable Law, any Lender may, in the ordinary course of its commercial banking business and in accordance with applicable Law, at any time sell to one or more Persons (each a "PARTICIPANT") participating interests in its portion of the Obligation. In the event of any such sale to a Participant, (i) such Lender shall remain a "Lender" under the Loan Documents and the Participant shall not constitute a "Lender" hereunder, (ii) such Lender's obligations under the Loan Documents shall remain unchanged, (iii) such Lender shall remain solely responsible for the performance thereof, (iv) such Lender shall remain the holder of its share of the Principal Debt for all purposes under the Loan Documents, (v) Borrower and Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender's Rights and obligations under the Loan Documents, and (vi) such Lender shall be solely responsible for any withholding taxes or any filing or reporting requirements relating to such participation and shall hold Borrower and Administrative Agent and their respective successors, permitted assigns, officers, directors, employees, agents, and representatives harmless against the same. Participants shall have no Rights under the Loan Documents, other than certain voting Rights as provided below. Subject to the following, each Lender shall be entitled to obtain (on behalf of its Participants) the benefits of SECTION Article 4 with respect to all participations in its part of the Obligation outstanding from time to time, so long as Borrower shall not be obligated to pay any amount in excess of the amount that would be due to such Lender under SECTION Article 4 calculated as though no participations have been made. No Lender shall sell any participating interest under which the Participant shall have any Rights to approve any amendment, modification, or waiver of any Loan Document, except to the extent such amendment, modification, or waiver extends the due date for payment of any amount in respect of principal (other than mandatory prepayments), interest, or fees due under the Loan Documents, reduces the interest rate or the amount of principal or fees applicable to the Obligation (except such reductions as are contemplated by the Loan Documents), or releases all or any substantial portion of the Guaranties under the Loan Documents; provided that, in those cases where a Participant is entitled to the benefits of SECTION Article 4 or a Lender grants Rights to its Participants to approve amendments to or waivers of the Loan Documents respecting the matters previously described in this sentence, such Lender must include a voting mechanism in the relevant participation agreement or agreements, as the case may be, whereby a majority of such Lender's portion of the Obligation (whether held by such Lender or Participant) shall control the vote for all of such Lender's portion of the Obligation. Except in the case of the sale of a participating interest to another Lender, the relevant participation agreement shall not permit the Participant to transfer, pledge, assign, sell participations in, or otherwise encumber its portion of the Obligation, unless the consent of the transferring Lender (which consent will not be unreasonably withheld) has been obtained. NBPLP CREDIT AGREEMENT.
(f) Notwithstanding any other provision set forth in this Agreement, any Lender may, without notice to, or the consent of Borrower or Administrative Agent, at any time assign and pledge all or any portion of its Borrowings and its Notes (to the extent any Principal Debt owed to such assigning Lender is evidenced by a Note or Notes) to any Federal Reserve Bank as collateral security pursuant to Regulation A and any Operating Circular issued by such Federal Reserve Bank or any Lender which is a fund may pledge all or any portion of its Borrowings and its Notes (to the extent any Principal Debt owed to such assigning Lender is evidenced by a Note or Notes) to its trustee in support of its obligations to its trustee. No such assignment shall release the assigning Lender from its obligations hereunder.
(g) Any Lender may furnish any information concerning the Loan Parties in the possession of such Lender from time to time to Eligible Assignees and Participants (including prospective Eligible Assignees and Participants), subject to the provisions of SECTION Section 14.14.
Appears in 1 contract
Samples: Revolving Credit Agreement (Northern Border Partners Lp)
Successors and Assigns; Assignments and Participations. (a) This Agreement shall be binding upon, upon and shall inure to the benefit of Company and the parties hereto Permitted Borrowers and the Banks and their respective successors and assigns, except that (i) Borrower may not, directly or indirectly, assign or transfer, or attempt to assign or transfer, any of its Rights, duties, or obligations under any Loan Documents without the express written consent of all Lenders, and (ii) except as permitted NBPLP CREDIT AGREEMENT under this Section, no Lender may transfer, pledge, assign, sell any participation in, or otherwise encumber its portion of the Obligation.
(b) Each Lender may assign to one The foregoing shall not authorize any assignment by Company or more Eligible Assignees all or a portion any of the Permitted Borrowers, of its Rights rights or duties hereunder, and no such assignment shall be made (or effective) without the prior written approval of the Banks.
(c) The Company, Permitted Borrowers and Agent acknowledge that each of the Banks may at any time and from time to time, subject to the terms and conditions hereof, assign or grant participations in such Bank's rights and obligations hereunder and under the other Loan Documents (includingto any commercial bank, without limitationsavings and loan association, all insurance company, pension fund, mutual fund, commercial finance company or a portion other similar financial institution, the identity of its Borrowings which institution is approved by Company and its Notes Agent, such approval not to the extent any Principal Debt owed to such assigning Lender is evidenced by a Note be unreasonably withheld or Notes)delayed; provided, however, thatthat (i) the approval of Company shall not be required upon the occurrence and during the continuance of a Default or Event of Default and (ii) the approval of Company and Agent shall not be required for any such sale, transfer, assignment or participation to the Affiliate of an assigning Bank, any other Bank or any Federal Reserve Bank. The Company and each of Permitted Borrowers authorize each Bank to disclose to any prospective assignee or participant, once approved by Company and Agent, any and all financial information in such Bank's possession concerning the Company and such Permitted Borrower which has been delivered to such Bank pursuant to this Agreement; provided that each such prospective participant shall execute a confidentiality agreement consistent with the terms of Section 13.13 hereof.
(d) Each assignment by a Bank of any portion of its rights and obligations hereunder and under the other Loan Documents, other than assignments to such Bank's Affiliates under Section 13.8(f) hereof, shall be made pursuant to an Assignment Agreement ("Assignment Agreement") substantially (as determined by Agent), in the form attached hereto as Exhibit G (with appropriate insertions acceptable to Agent) and shall be subject to the terms and conditions hereof, and to the following restrictions:
(i) each such assignment shall cover all of the Notes issued by Company and the Permitted Borrowers hereunder to the assigning Bank (and not any particular Note or Notes), and shall be for a fixed and not varying percentage thereof, with the same percentage applicable to an Eligible Assigneeeach such Note;
(ii) except each assignment shall be in the case a minimum amount of an assignment to another Lender or in the case of an assignment of all of a Lender's Rights and obligations under the Loan Documents, any such partial assignment under the Facility shall not be less than Five Million Dollars ($5,000,000 unless Borrower and Administrative Agent consent thereto (in their sole discretion) in writing which may be evidenced by their acceptance and execution of the related Assignment and Acceptance Agreement; provided that, no partial assignment for the Facility (including any assignment among Lenders) may result in any Lender holding less than $10,000,000, provided further that, a Lender may hold an amount less than $10,000,000 but greater than $5,000,000 only if such Lender shall hold at least $10,000,000 in the aggregate of this Facility and the Multi- Year Revolving Agreement (notwithstanding the foregoing, in the event the Multi-Year Revolving Agreement is terminated, any Lender may continue to hold an amount in this Facility greater than or equal to the amount such Lender held on the date of the termination of the Multi-Year Revolving Agreement5,000,000);
(iii) the parties to such no assignment shall execute and deliver to Administrative Agent for its acceptance an Assignment and Acceptance Agreement in violate any "blue sky" or other securities law of any jurisdiction or shall require the form of EXHIBIT E hereto, together with any Notes (to the extent any Principal Debt owed to such assigning Lender is evidenced by a Note or Notes) subject to such assignment and a processing fee of $3,500, including, without limitationCompany, any assignment between LendersPermitted Borrower or any other Person to file a registration statement or similar application with the United States Securities and Exchange Commission (or similar state regulatory body) or to qualify under the "blue sky" or other securities laws of any jurisdiction; and
(iv) no assignment shall be effective unless Agent has received from the assignee (or from the assigning Bank) an assignment fee of $3,500 for each such assignment. In connection with any assignment subject to this Section 13.8(d), Company, each of the Permitted Borrowers and Agent shall be entitled to continue to deal solely and directly with the assigning Bank in connection with the interest so long as any Lender is assigned until (x) the Agent shall have received a notice of assignment duly executed by the assigning Bank and an Assignment Agreement (with respect thereto) duly executed by the assigning Bank and each assignee; and (y) the assigning Bank shall have delivered to the Agent the original of each Note held by the assigning Bank under this Agreement, such Lender . From and after the date on which the Agent shall notify Company and the Bank which has accepted an assignment subject to this Section 13.8(d) that the foregoing conditions shall have been satisfied and all consents (or an Affiliate of such Lenderif any) required shall retain an economic interest in the Loan Documents, will not assign all of its Rights, duties, or obligations under the Loan Documents, except to an Affiliate of such Lender, and will not enter into any Assignment and Acceptance Agreement that would have the effect of such Lender assigning all of its Rights, duties, or obligations under the Loan Documents to any Person other than an Affiliate of such Lender unless such Agent has relinquished such title in accordance with SECTION 13.1 (with respect to Administrative Agent) or SECTION 13.10 (with respect to the other Agents). Upon execution, delivery, and acceptance of such Assignment and Acceptance Agreementbeen given, the assignee thereunder shall be deemed to be a party hereto andto this Agreement. To the extent that rights and obligations hereunder shall have been assigned to such assignee as provided in such notice of assignment (and Assignment Agreement), such assignee shall have the rights and obligations of a Bank under this Agreement and the other Loan Documents (including without limitation the right to receive fees payable hereunder in respect of the period following such assignment). In addition, the assigning Bank, to the extent that rights and obligations hereunder shall have been assigned by it as provided in such notice of such assignmentassignment (and Assignment Agreement), have the obligationsbut not otherwise, Rights, and benefits of a Lender under the Loan Documents and the assigning Lender shall, to the extent of such assignment, shall relinquish its Rights rights and be released from its obligations under this Agreement and the other Loan Documents. Upon Within five (5) Business Days following Company's receipt of notice from the consummation Agent that Agent has accepted and executed a notice of any assignment pursuant to this Section, but only upon the request of the assignor or assignee made through Administrative Agent, Borrower shall issue appropriate Notes to the assignor and the assigneeduly executed Assignment Agreement, reflecting such Assignment and Acceptance. If the assignee is not incorporated under the laws of the United States of America or a state thereof, it shall deliver to Borrower and Administrative Agent certification as to exemption from deduction or withholding of Taxes in accordance with SECTION 4.6.
(c) Administrative Agent shall maintain at its address referred to in SECTION 14.3 a copy of each Assignment and Acceptance Agreement delivered to and accepted by it and a register for NBPLP CREDIT AGREEMENT the recordation of the names and addresses of the Lenders Company and the Commitment PercentagePermitted Borrowers shall, and principal amount of the Borrowings owing to, each Lender from time to time (the "REGISTER"). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and Borrower, Administrative Agent and the Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of the Loan Documents. The Register shall be available for inspection by Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice. Upon the consummation of any assignment in accordance with this SECTION 14.13, SCHEDULE 2.1 shall automatically be deemed amended (to the extent requiredapplicable, execute and deliver to the Agent in exchange for any surrendered Note, new Note(s) by Administrative Agent payable to reflect the name, address, and, where appropriate, respective Committed Sums under the Facility (as the case may be) order of the assignor assignee in an amount equal to the amount assigned to it pursuant to such notice of assignment (and assignee.
(d) Upon its receipt Assignment Agreement), and with respect to the portion of an Assignment and Acceptance Agreement executed the Indebtedness retained by the parties theretoassigning Bank, together with any Notes (to the extent applicable, new Note(s) payable to the order of the assigning Bank in an amount equal to the amount retained by such Bank hereunder shall be executed and delivered by the Company and the Permitted Borrowers. Agent, the Banks and the Company and the Permitted Borrowers acknowledge and agree that any Principal Debt owed to such assigning Lender is new Note(s) shall be given in renewal and replacement of the surrendered Notes and shall not effect or constitute a novation or discharge of the Indebtedness evidenced by any surrendered Note, and each such new Note may contain a Note or provision confirming such agreement. In addition, promptly following receipt of such Notes) subject , Agent shall prepare and distribute to such assignment Company, the Permitted Borrowers and payment each of the processing feeBanks a revised Exhibit D to this Agreement setting forth the applicable new Percentages of the Banks (including the assignee Bank), Administrative Agent shall, if taking into account such Assignment and Acceptance has been completed and is in substantially the form of EXHIBIT E hereto, (i) accept such Assignment and Acceptance Agreement, (ii) record the information contained therein in the Register, and (iii) give prompt notice thereof to the parties theretoassignment.
(e) Subject Each Bank agrees that any participation agreement permitted hereunder shall comply with all applicable laws and shall be subject to the provisions of this Section and in accordance with applicable Law, any Lender may, following restrictions (which shall be set forth in the ordinary course of its commercial banking business and in accordance with applicable Law, at any time sell to one or more Persons (each a "PARTICIPANT") participating interests in its portion of the Obligation. In the event of any such sale to a Participant, participation agreement):
(i) such Lender Bank shall remain the holder of its Notes hereunder, notwithstanding any such participation;
(ii) except as expressly set forth in this Section 13.8(e) with respect to rights of setoff and the benefits of Section 11 hereof, a participant shall have no direct rights or remedies hereunder;
(iii) a participant shall not reassign or transfer, or grant any sub-participations in its participation interest hereunder or any part thereof; and
(iv) such Bank shall retain the sole right and responsibility to enforce the obligations of the Company and Permitted Borrowers relating to the Notes and the 114 127 other Loan Documents, including, without limitation, the right to proceed against any Guaranties, or cause Agent to do so (subject to the terms and conditions hereof), and the right to approve any amendment, modification or waiver of any provision of this Agreement without the consent of the participant (other than a participant which is an Affiliate of such Bank), except for those matters covered by Section 13.11(a) through (e) and (h) hereof (provided that a participant may exercise approval rights over such matters only on an indirect basis, acting through such Bank, and Company, Permitted Borrowers, Agent and the other Banks may continue to deal directly with such Bank in connection with such Bank's rights and duties hereunder). Company and each of the Permitted Borrowers each agrees that each participant shall be deemed to have the right of setoff under Section 10.4 hereof in respect of its participation interest in amounts owing under this Agreement and the other Loan Documents to the same extent as if the Indebtedness were owing directly to it as a Bank under this Agreement, shall be subject to the pro rata recovery provisions of Section 10.3 hereof and shall be entitled to the benefits of Section 11 hereof. The amount, terms and conditions of any participation shall be as set forth in the participation agreement between the issuing Bank and the Person purchasing such participation, and none of the Company, none of the Permitted Borrowers, the Agent and the other Banks shall have any responsibility or obligation with respect thereto, or to any Person to whom any such participation may be issued. No such participation shall relieve any issuing Bank of any of its obligations under this Agreement or any of the other Loan Documents (including without limitation the Collateral Documents), and all actions hereunder shall be conducted as if no such participation had been granted.
(f) Each assignment by a Bank to its Affiliates of all or any portion of the Notes, or any Advances thereunder, may be made on such terms and conditions as determined by such Bank (rather than pursuant to Section 13.8(d) hereof), provided however that (i) following each such assignment, the assigning Bank shall remain responsible for the performance of its obligations under this Agreement and the other Loan Documents (including without limitation its obligations in respect of any Notes and Advances thereunder so assigned), and each such Affiliate assignee shall not be deemed a "Lender" under the Loan Documents and the Participant shall not constitute a "LenderBank" hereunder, (ii) such Lender's obligations under Company, the Loan Documents shall remain unchanged, (iii) such Lender shall remain solely responsible for Permitted Borrowers and the performance thereof, (iv) such Lender shall remain the holder of its share of the Principal Debt for all purposes under the Loan Documents, (v) Borrower and Administrative Agent shall be entitled to continue to deal solely and directly with such Lender assigning Bank in connection with such LenderBank's Rights rights and obligations under this Agreement and the other Loan Documents, and (viiii) such Lender assigning Bank shall be solely responsible retain the sole right and responsibility to enforce the obligations of Company and the Permitted Borrowers (including Company or the applicable Permitted Borrower whose Notes or Advances thereunder have been so assigned) under this Agreement and the other Loan Documents. In connection with assignments to its Affiliates under this Section 13.8(f), an assigning Bank shall act as agent for any withholding taxes or any filing or reporting requirements relating to such participation and shall hold Borrower and Administrative Agent and their respective successors, permitted assigns, officers, directors, employees, agentsits Affiliates having received assignments hereunder, and representatives harmless against the samemay appoint such Affiliates as such Bank's applicable Eurocurrency Lending Office. Participants shall have no Rights under the Loan Documents, other than certain voting Rights as provided below. Subject to the following, each Lender shall be entitled to obtain (on behalf of its Participants) the benefits of SECTION 4 Furthermore with respect to all participations such assignments under this Section 13.8(f), it is expressly acknowledged that the assignment fee provided for in its part of the Obligation outstanding from time to time, so long as Borrower Section 13.8(d)(iv) shall not be obligated to pay any amount in excess of the amount that would be due to such Lender under SECTION 4 calculated as though no participations have been made. No Lender shall sell any participating interest under which the Participant shall have any Rights to approve any amendment, modification, or waiver of any Loan Document, except to the extent such amendment, modification, or waiver extends the due date for payment of any amount in respect of principal (other than mandatory prepayments), interest, or fees due under the Loan Documents, reduces the interest rate or the amount of principal or fees applicable to the Obligation (except such reductions as are contemplated by the Loan Documents), or releases all or any substantial portion of the Guaranties under the Loan Documents; provided that, in those cases where a Participant is entitled to the benefits of SECTION 4 or a Lender grants Rights to its Participants to approve amendments to or waivers of the Loan Documents respecting the matters previously described in this sentence, such Lender must include a voting mechanism in the relevant participation agreement or agreements, as the case may be, whereby a majority of such Lender's portion of the Obligation (whether held by such Lender or Participant) shall control the vote for all of such Lender's portion of the Obligation. Except in the case of the sale of a participating interest to another Lender, the relevant participation agreement shall not permit the Participant to transfer, pledge, assign, sell participations in, or otherwise encumber its portion of the Obligation, unless the consent of the transferring Lender (which consent will not be unreasonably withheld) has been obtained. NBPLP CREDIT AGREEMENT
(f) Notwithstanding any other provision set forth in this Agreement, any Lender may, without notice to, or the consent of Borrower or Administrative Agent, at any time assign and pledge all or any portion of its Borrowings and its Notes (to the extent any Principal Debt owed to such assigning Lender is evidenced by a Note or Notes) to any Federal Reserve Bank as collateral security pursuant to Regulation A and any Operating Circular issued by such Federal Reserve Bank or any Lender which is a fund may pledge all or any portion of its Borrowings and its Notes (to the extent any Principal Debt owed to such assigning Lender is evidenced by a Note or Notes) to its trustee in support of its obligations to its trustee. No such assignment shall release the assigning Lender from its obligations hereunderapply.
(g) Any Lender may furnish Nothing in this Agreement, the Notes or the other Loan Documents, expressed or implied, is intended to or shall confer on any information concerning Person other than the respective parties hereto and thereto and their successors and assignees and participants permitted hereunder and 115 128 thereunder any benefit or any legal or equitable right, remedy or other claim under this Agreement, the Notes or the other Loan Parties in the possession of such Lender from time to time to Eligible Assignees and Participants (including prospective Eligible Assignees and Participants), subject to the provisions of SECTION 14.14Documents.
Appears in 1 contract
Successors and Assigns; Assignments and Participations. (a) This Agreement shall be binding upon, and inure Subject to the benefit of the parties hereto and their respective successors and assigns, except that (iSections 12.2(d) Borrower may not, directly or indirectly, assign or transfer, or attempt to assign or transfer, any of its Rights, duties, or obligations under any Loan Documents without the express written consent of all Lenders, and (ii) except as permitted NBPLP CREDIT AGREEMENT under this Sectionh), no a Lender may transfer, pledge, assign, sell at any participation in, or otherwise encumber its portion of the Obligation.
(b) Each Lender may time assign to one or more Eligible Assignees all or a portion of its Rights rights and obligations under the Loan Documents (including, without limitation, delegate all or a portion of its Borrowings obligations under this Agreement and the other Loan Documents (including all its Notes rights and obligations with respect to the extent any Principal Debt owed Loan) to such assigning Lender is evidenced by one or more Persons (a Note or Notes); “Transferee”) with the written consent of Agent, provided, however, that:
that so long as no Event of Default exists, Borrower’s consent (i) each such assignment shall which consent may be to an Eligible Assignee;
(ii) except withheld in the case of an assignment to another Lender or in the case of an assignment of all of a Lender's Rights and obligations under the Loan Documents, any such partial assignment under the Facility shall not be less than $5,000,000 unless Borrower and Administrative Agent consent thereto (in their Borrower’s sole discretion) in writing which may shall be evidenced by their acceptance and execution of the related Assignment and Acceptance Agreement; provided that, no partial assignment required for the Facility (including any assignment among Lenderspursuant to this Section 12(a) may result to a Person that is a Direct Competitor. Except as set forth in the immediately preceding sentence, there shall be no limitation or restriction on any Lender holding less than $10,000,000Lender’s ability to assign, provided further that, a Lender may hold an amount less than $10,000,000 but greater than $5,000,000 only if pledge or otherwise transfer any Note or other Obligation. The Transferee and such Lender shall hold at least $10,000,000 in the aggregate of this Facility and the Multi- Year Revolving Agreement (notwithstanding the foregoing, in the event the Multi-Year Revolving Agreement is terminated, any Lender may continue to hold an amount in this Facility greater than or equal to the amount such Lender held on the date of the termination of the Multi-Year Revolving Agreement);
(iii) the parties to such assignment shall execute and deliver to Administrative Agent for its acceptance an Assignment and Acceptance Agreement recording in the Register, a Lender Addition Agreement, which shall be in form of EXHIBIT E hereto, and substance reasonably acceptable to Agent in its sole discretion (“Lender Addition Agreement”) together with any Notes (to the extent any Principal Debt owed to such assigning Lender is evidenced by a Note or Notes) subject to such assignment and a processing and recordation fee of $3,500, including, without limitation, any assignment between Lenders; and
5,000 for the account of Agent (iv) so long as any Lender unless such fee is an waived by Agent under this Agreementin its sole discretion), such fee to be paid by either the Transferee or such Lender (or an Affiliate of shared between Transferee and such Lender) shall retain an economic interest in the Loan Documents, will not assign all of its Rights, duties, or obligations under the Loan Documents, except to an Affiliate of such Lender, and will not enter into any Assignment and Acceptance Agreement that would have the effect of such Lender assigning all of its Rights, duties, or obligations under the Loan Documents to any Person other than an Affiliate of such Lender unless such Agent has relinquished such title in accordance with SECTION 13.1 (with respect to Administrative Agent) or SECTION 13.10 (with respect to the other Agents). Upon such execution, delivery, acceptance and acceptance of recording, from and after the effective date determined pursuant to such Assignment and Acceptance Lender Addition Agreement, (i) the assignee Transferee thereunder shall be a party hereto and, to the extent of provided in such assignmentLender Addition Agreement, have the obligationssame rights, Rights, benefits and benefits of obligations as it would if it were a Lender under the Loan Documents and the assigning Lender shall, to the extent of such assignment, relinquish its Rights and be released from its obligations under the Loan Documents. Upon the consummation of any assignment pursuant to this Section, but only upon the request of the assignor or assignee made through Administrative Agent, Borrower shall issue appropriate Notes to the assignor and the assignee, reflecting such Assignment and Acceptance. If the assignee is not incorporated under the laws of the United States of America or a state thereof, it shall deliver to Borrower and Administrative Agent certification as to exemption from deduction or withholding of Taxes in accordance with SECTION 4.6.
(c) Administrative Agent shall maintain at its address referred to in SECTION 14.3 a copy of each Assignment and Acceptance Agreement delivered to and accepted by it and a register for NBPLP CREDIT AGREEMENT the recordation of the names and addresses of the Lenders and the Commitment Percentage, and principal amount of the Borrowings owing to, each Lender from time to time (the "REGISTER"). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and Borrower, Administrative Agent and the Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of the Loan Documents. The Register shall be available for inspection by Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice. Upon the consummation of any assignment in accordance with this SECTION 14.13, SCHEDULE 2.1 shall automatically be deemed amended (to the extent required) by Administrative Agent to reflect the name, address, and, where appropriate, respective Committed Sums under the Facility (as the case may be) of the assignor and assignee.
(d) Upon its receipt of an Assignment and Acceptance Agreement executed by the parties thereto, together with any Notes (to the extent any Principal Debt owed to such assigning Lender is evidenced by a Note or Notes) subject to such assignment and payment of the processing fee, Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of EXHIBIT E hereto, (i) accept such Assignment and Acceptance Agreement, (ii) record the information contained therein in the Register, and (iii) give prompt notice thereof to the parties thereto.
(e) Subject to the provisions of this Section and in accordance with applicable Law, any Lender may, in the ordinary course of its commercial banking business and in accordance with applicable Law, at any time sell to one or more Persons (each a "PARTICIPANT") participating interests in its portion of the Obligation. In the event of any such sale to a Participant, (i) such Lender shall remain a "Lender" under the Loan Documents and the Participant shall not constitute a "Lender" hereunder, (ii) such Lender's obligations under the Loan Documents shall remain unchanged, (iii) such Lender shall remain solely responsible for the performance thereof, (iv) such Lender shall remain the holder of its share of the Principal Debt for all purposes under the Loan Documents, (v) Borrower and Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender's Rights and obligations under the Loan Documents, and (vi) such assigning Lender shall be solely responsible for any withholding taxes or any filing or reporting requirements relating to such participation and shall hold Borrower and Administrative Agent and their respective successors, permitted assigns, officers, directors, employees, agents, and representatives harmless against the same. Participants shall have no Rights under the Loan Documents, other than certain voting Rights as provided below. Subject to the following, each Lender shall be entitled to obtain (on behalf relieved of its Participants) the benefits of SECTION 4 obligations hereunder with respect to all participations in its part of the Obligation outstanding from time to time, so long as Borrower shall not be obligated to pay any amount in excess of the amount that would be due to such Lender under SECTION 4 calculated as though no participations have been made. No Lender shall sell any participating interest under which the Participant shall have any Rights to approve any amendment, modification, Advances or waiver of any Loan Document, except to the extent such amendment, modification, or waiver extends the due date for payment of any amount in respect of principal (other than mandatory prepayments), interest, or fees due under the Loan Documents, reduces the interest rate or the amount of principal or fees applicable to the Obligation (except such reductions as are contemplated by the Loan Documents), or releases all or any substantial assigned portion of the Guaranties under the Loan Documents; provided that, in those cases where a Participant is entitled to the benefits of SECTION 4 or a Lender grants Rights to its Participants to approve amendments to or waivers of the Loan Documents respecting the matters previously described in this sentence, such Lender must include a voting mechanism in the relevant participation agreement or agreementsthereof, as the case may be, whereby a majority of to the extent that such Lender's portion of obligations shall have been expressly assumed by the Obligation (whether held by Transferee pursuant to such Lender or Participant) shall control the vote for all of such Lender's portion of the Obligation. Except Addition Agreement (and, in the case of a Lender Addition Agreement covering all or the sale of a participating interest to another Lender, the relevant participation agreement shall not permit the Participant to transfer, pledge, assign, sell participations in, or otherwise encumber its remaining portion of the Obligation, unless the consent of the transferring Lender (which consent will not be unreasonably withheld) has been obtained. NBPLP CREDIT AGREEMENT
(f) Notwithstanding any other provision set forth in an assigning Lender’s rights and obligations under this Agreement, any Lender may, without notice to, or the consent of Borrower or Administrative Agent, at any time assign and pledge all or any portion of its Borrowings and its Notes (to the extent any Principal Debt owed to such assigning Lender is evidenced by shall cease to be a Note or Notes) party hereto but, with respect to any Federal Reserve Bank as collateral security pursuant matters occurring before such assignment, shall nevertheless continue to Regulation A and any Operating Circular issued by such Federal Reserve Bank or any Lender which is a fund may pledge all or any portion of its Borrowings and its Notes (be entitled to the extent any Principal Debt owed to such assigning Lender is evidenced by a Note or Notes) to its trustee in support benefits of its obligations to its trustee. No such assignment shall release the assigning Lender from its obligations hereunderSections 12.4 and 12.
(g) Any Lender may furnish any information concerning the Loan Parties in the possession of such Lender from time to time to Eligible Assignees and Participants (including prospective Eligible Assignees and Participants), subject to the provisions of SECTION 14.14.
Appears in 1 contract
Samples: Loan and Security Agreement (CURO Group Holdings Corp.)
Successors and Assigns; Assignments and Participations. (a) This The provisions of this Agreement shall be binding upon, upon and inure to the benefit of the parties hereto and their respective successors and assignsassigns permitted hereby, except that Borrower may not assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of each Lender and no Lender may assign or otherwise transfer any of its rights or obligations hereunder except (i) Borrower may notto an Eligible Assignee in accordance with the provisions of SECTION 13.13(b), directly or indirectly, assign or transfer, or attempt to assign or transfer, any of its Rights, duties, or obligations under any Loan Documents without the express written consent of all Lenders, and (ii) except as permitted NBPLP CREDIT AGREEMENT under this Section, no Lender may transfer, pledge, assign, sell any by way of participation inin accordance with the provisions of SECTION 13.13(d), or otherwise encumber its portion (iii) by way of pledge or assignment of a security interest subject to the Obligationrestrictions of SECTION 13.13(f). Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby, Participants to the extent provided in SECTION 13.13(d) and, to the extent expressly contemplated hereby, the Indemnitees) any legal or equitable right, remedy or claim under or by reason of this Agreement.
(b) Each Any Lender may at any time assign to one or more Eligible Assignees all or a portion of its Rights rights and obligations under the Loan Documents this Agreement (including, without limitation, including all or a portion of its Commitment and outstanding Borrowings and its Notes (including for purposes of this SECTION 13.13(b) participations in L/C Obligations) at the time owing to the extent any Principal Debt owed to such assigning Lender is evidenced by a Note or Notesit); provided, however, provided that:
(i) each such assignment shall be to an Eligible Assignee;
(ii) except in the case of an assignment of the entire remaining amount of the assigning Lender's Commitment and outstanding Borrowings and participations in Unreimbursed Amounts at the time owing to another Lender it or in the case of an assignment of all to a Lender or an Affiliate of a Lender or an Approved Fund (as defined in SECTION 13.13(g)) with respect to a Lender's Rights , the aggregate amount of the Commitment (which for this purpose includes Borrowings and obligations under participations in Unreimbursed Amounts outstanding thereunder) subject to each such assignment, determined as of the Loan Documentsdate the Assignment and Assumption with respect to such assignment is delivered to Administrative Agent or, any such partial assignment under if "Trade Date" is specified in the Facility Assignment and Assumption, as of the Trade Date, shall not be less than $5,000,000 unless Borrower or a whole multiple of $500,000 in excess thereof, and Administrative Agent consent thereto (in their sole discretion) in writing which may be evidenced by their acceptance and execution of the related Assignment and Acceptance Agreement; provided thatafter such assignment, no partial assignment for the Facility (including any assignment among Lenders) may result in any Lender holding shall hold a Commitment of less than $10,000,0005,000,000 unless each of Administrative Agent and, provided further thatso long as no Event of Default has occurred and is continuing, Borrower otherwise consents (each such consent not to be unreasonably withheld or delayed); (ii) each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender's rights and obligations under this Agreement with respect to the Borrowings or the Commitment assigned; (iii) any assignment of a Commitment or unfunded participation in Unreimbursed Amounts must be approved by Administrative Agent (which approval shall not be unreasonably withheld) unless the Person that is the proposed assignee is itself a Lender may hold (whether or not the proposed assignee would otherwise qualify as an amount less than $10,000,000 but greater than $5,000,000 only if such Lender shall hold at least $10,000,000 in the aggregate of this Facility Eligible Assignee); and the Multi- Year Revolving Agreement (notwithstanding the foregoing, in the event the Multi-Year Revolving Agreement is terminated, any Lender may continue to hold an amount in this Facility greater than or equal to the amount such Lender held on the date of the termination of the Multi-Year Revolving Agreement);
(iiiiv) the parties to such each assignment shall execute and deliver to Administrative Agent for its acceptance an Assignment and Acceptance Agreement in the form of EXHIBIT E heretoAssumption, together with any Notes (to the extent any Principal Debt owed to such assigning Lender is evidenced by a Note or Notes) subject to such assignment and a processing and recordation fee of $3,500. Subject to acceptance and recording thereof by Administrative Agent pursuant to SECTION 13.13(c), includingfrom and after the effective date specified in each Assignment and Assumption, without limitationthe Eligible Assignee thereunder shall be a party to this Agreement and, any assignment between Lenders; to the extent of the interest assigned by such Assignment and Assumption, have the rights and obligations of a Lender under this Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment and Assumption, be released from its obligations under this Agreement (and
(iv) so long as any Lender is , in the case of an Agent Assignment and Assumption covering all of the assigning Lender's rights and obligations under this Agreement, such Lender (or an Affiliate of such Lender) shall retain an economic interest in the Loan Documents, will not assign all of its Rights, duties, or obligations under the Loan Documents, except cease to an Affiliate of such Lender, and will not enter into any Assignment and Acceptance Agreement that would have the effect of such Lender assigning all of its Rights, duties, or obligations under the Loan Documents to any Person other than an Affiliate of such Lender unless such Agent has relinquished such title in accordance with SECTION 13.1 (with respect to Administrative Agent) or SECTION 13.10 (with respect to the other Agents). Upon execution, delivery, and acceptance of such Assignment and Acceptance Agreement, the assignee thereunder shall be a party hereto and, to the extent of such assignment, have the obligations, Rights, and benefits of a Lender under the Loan Documents and the assigning Lender shall, to the extent of such assignment, relinquish its Rights and be released from its obligations under the Loan Documents. Upon the consummation of any assignment pursuant to this Section, but only upon the request of the assignor or assignee made through Administrative Agent, Borrower shall issue appropriate Notes to the assignor and the assignee, reflecting such Assignment and Acceptance. If the assignee is not incorporated under the laws of the United States of America or a state thereof, it shall deliver to Borrower and Administrative Agent certification as to exemption from deduction or withholding of Taxes in accordance with SECTION 4.6.
(c) Administrative Agent shall maintain at its address referred to in SECTION 14.3 a copy of each Assignment and Acceptance Agreement delivered to and accepted by it and a register for NBPLP CREDIT AGREEMENT the recordation of the names and addresses of the Lenders and the Commitment Percentage, and principal amount of the Borrowings owing to, each Lender from time to time (the "REGISTER"). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and Borrower, Administrative Agent and the Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of the Loan Documents. The Register shall be available for inspection by Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice. Upon the consummation of any assignment in accordance with this SECTION 14.13, SCHEDULE 2.1 shall automatically be deemed amended (to the extent required) by Administrative Agent to reflect the name, address, and, where appropriate, respective Committed Sums under the Facility (as the case may be) of the assignor and assignee.
(d) Upon its receipt of an Assignment and Acceptance Agreement executed by the parties thereto, together with any Notes (to the extent any Principal Debt owed to such assigning Lender is evidenced by a Note or Notes) subject to such assignment and payment of the processing fee, Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of EXHIBIT E hereto, (i) accept such Assignment and Acceptance Agreement, (ii) record the information contained therein in the Register, and (iii) give prompt notice thereof to the parties thereto.
(e) Subject to the provisions of this Section and in accordance with applicable Law, any Lender may, in the ordinary course of its commercial banking business and in accordance with applicable Law, at any time sell to one or more Persons (each a "PARTICIPANT") participating interests in its portion of the Obligation. In the event of any such sale to a Participant, (i) such Lender shall remain a "Lender" under the Loan Documents and the Participant shall not constitute a "Lender" hereunder, (ii) such Lender's obligations under the Loan Documents shall remain unchanged, (iii) such Lender shall remain solely responsible for the performance thereof, (iv) such Lender shall remain the holder of its share of the Principal Debt for all purposes under the Loan Documents, (v) Borrower and Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender's Rights and obligations under the Loan Documents, and (vi) such Lender shall be solely responsible for any withholding taxes or any filing or reporting requirements relating to such participation and shall hold Borrower and Administrative Agent and their respective successors, permitted assigns, officers, directors, employees, agents, and representatives harmless against the same. Participants shall have no Rights under the Loan Documents, other than certain voting Rights as provided below. Subject to the following, each Lender shall be entitled to obtain (on behalf of its Participants) the benefits of SECTION 4 with respect to all participations in its part of the Obligation outstanding from time to time, so long as Borrower shall not be obligated to pay any amount in excess of the amount that would be due to such Lender under SECTION 4 calculated as though no participations have been made. No Lender shall sell any participating interest under which the Participant shall have any Rights to approve any amendment, modification, or waiver of any Loan Document, except to the extent such amendment, modification, or waiver extends the due date for payment of any amount in respect of principal (other than mandatory prepayments), interest, or fees due under the Loan Documents, reduces the interest rate or the amount of principal or fees applicable to the Obligation (except such reductions as are contemplated by the Loan Documents), or releases all or any substantial portion of the Guaranties under the Loan Documents; provided that, in those cases where a Participant is entitled to the benefits of SECTION 4 or a Lender grants Rights SECTIONS 4.1, 4.5, and 4.6 (with respect to its Participants facts and circumstances occurring prior to approve amendments to or waivers of the Loan Documents respecting the matters previously described in this sentence, such Lender must include a voting mechanism in the relevant participation agreement or agreements, as the case may be, whereby a majority effective date of such Lender's portion of the Obligation (whether held by such Lender or Participantassignment) shall control the vote for all of such Lender's portion of the Obligation. Except in the case of the sale of a participating interest to another Lender, the relevant participation agreement shall not permit the Participant to transfer, pledge, assign, sell participations in, or otherwise encumber its portion of the Obligation, unless the consent of the transferring Lender (which consent will not be unreasonably withheld) has been obtained. NBPLP CREDIT AGREEMENT
(f) Notwithstanding any other provision set forth in this Agreement, any Lender may, without notice to, or the consent of Borrower or Administrative Agent, at any time assign and pledge all or any portion of its Borrowings and its Notes (to the extent any Principal Debt owed to such assigning Lender is evidenced by a Note or Notes) to any Federal Reserve Bank as collateral security pursuant to Regulation A and any Operating Circular issued by such Federal Reserve Bank or any Lender which is a fund may pledge all or any portion of its Borrowings and its Notes (to the extent any Principal Debt owed to such assigning Lender is evidenced by a Note or Notes) to its trustee in support of its obligations to its trustee. No such assignment shall release the assigning Lender from its obligations hereunder11.
(g) Any Lender may furnish any information concerning the Loan Parties in the possession of such Lender from time to time to Eligible Assignees and Participants (including prospective Eligible Assignees and Participants), subject to the provisions of SECTION 14.14.
Appears in 1 contract
Samples: Letter of Credit and Reimbursement Agreement (Centex Development Co Lp)
Successors and Assigns; Assignments and Participations. (a) This Agreement shall be binding upon, and inure to the benefit of the parties hereto and their respective successors and assigns, except that (i) Borrower may not, directly or indirectly, assign or transfer, or attempt to assign or transfer, any of its Rights, duties, duties or obligations under any Loan Documents without the express written consent of all Lenders, and (ii) except as permitted NBPLP CREDIT AGREEMENT under this SectionSECTION 14.13, no Lender 60 may transfer, pledge, assign, sell any participation in, or otherwise encumber its portion of the Obligation.
(b) Each Lender may assign to one or more Eligible Assignees all or a portion of its Rights and obligations under this Agreement and the other Loan Documents (including, without limitation, all or a portion of its Borrowings and its Notes to the extent any Principal Debt owed to such assigning Lender is evidenced by a Note or Notes, if any); providedPROVIDED, howeverHOWEVER, that:
(i) each such assignment shall be to an Eligible Assignee;
(ii) except in the case of an assignment to another Lender or in the case of an assignment of all of a Lender's Rights and obligations under this Agreement and the other Loan Documents, any such partial assignment under the Facility shall not be in an amount at least equal to $5,000,000, but, in no event less than $5,000,000 unless Borrower and Administrative Agent consent thereto (in their sole discretion) in writing which may be evidenced by their acceptance and execution of the related Assignment and Acceptance Agreement; provided that, no partial assignment for the Facility (including any assignment among Lenders) may result in any Lender holding less than $10,000,000, provided further that, a Lender may hold an amount less than $10,000,000 but greater than $5,000,000 only if such Lender shall hold at least $10,000,000 in the aggregate of this Facility and the Multi- Year Revolving Agreement (notwithstanding the foregoing, in the event the Multi-Year Revolving Agreement is terminated, any Lender may continue to hold an amount in this Facility greater than or equal to the amount such Lender held on the date of the termination of the Multi-Year Revolving Agreement)1,000,000;
(iii) each such assignment by a Lender shall be of a constant, and not varying, percentage of all of its Rights and obligations under this Agreement;
(iv) the parties to such assignment shall execute and deliver to Administrative Agent for its acceptance (such acceptance not to be unreasonably withheld) an Assignment and Acceptance Agreement in the form of EXHIBIT E F hereto, together with any Notes (to the extent any Principal Debt owed to such assigning Lender is evidenced by a Note or Notes) subject to such assignment and a processing fee of $3,500, including, without limitation, any assignment between Lenders; and
(iv) so long as any Lender is an Agent under this Agreement, such Lender (or an Affiliate of such Lender) shall retain an economic interest in the Loan Documents, will not assign all of its Rights, duties, or obligations under the Loan Documents, except to an Affiliate of such Lender, and will not enter into any Assignment and Acceptance Agreement that would have the effect of such Lender assigning all of its Rights, duties, or obligations under the Loan Documents to any Person other than an Affiliate of such Lender unless such Agent has relinquished such title in accordance with SECTION 13.1 (with respect to Administrative Agent) or SECTION 13.10 (with respect to the other Agents). Upon execution, delivery, and acceptance of such Assignment and Acceptance Agreement, the assignee thereunder shall be a party hereto and, to the extent of such assignment, have the obligations, Rights, and benefits of a Lender under the Loan Documents and the assigning Lender shall, to the extent of such assignment, relinquish its Rights rights and be released from its obligations under the Loan Documents. Upon the consummation of any assignment pursuant to this SectionSECTION, but only upon the request of the assignor or assignee made through Administrative Agent, Borrower shall issue appropriate Notes upon request to the assignor and the assignee, reflecting such Assignment and Acceptance. If the assignee is not incorporated under the laws of the United States of America or a state thereof, then it shall deliver to Borrower and Administrative Agent certification as to exemption from deduction or withholding of Taxes in accordance with SECTION 4.64.6(d).
(c) Administrative Agent shall maintain at its address referred to in SECTION 14.3 a copy of each Assignment and Acceptance Agreement delivered to and accepted by it and a register for NBPLP CREDIT AGREEMENT the recordation of the names and addresses of the Lenders and the Commitment Percentage, and principal amount of the Borrowings owing to, each Lender from time to time (the "REGISTER"). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and Borrower, Administrative Agent and the Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of the Loan Documents. The Register shall be available for inspection by Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice. Upon the consummation of any assignment in accordance with this SECTION 14.13, SCHEDULE 2.1 shall automatically be deemed amended (to the extent required) by Administrative Agent to reflect the name, address, and, where appropriate, respective Committed Sums under the Facility (as the case may be) of the assignor and assignee.
(d) Upon its receipt of an Assignment and Acceptance Agreement executed by the parties thereto, together with any Notes (to the extent any Principal Debt owed to such assigning Lender is evidenced by a Note or Notes) subject to such assignment and payment of the processing fee, Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of EXHIBIT E hereto, (i) accept such Assignment and Acceptance Agreement, (ii) record the information contained therein in the Register, and (iii) give prompt notice thereof to the parties thereto.
(e) Subject to the provisions of this Section and in accordance with applicable Law, any Lender may, in the ordinary course of its commercial banking business and in accordance with applicable Law, at any time sell to one or more Persons (each a "PARTICIPANT") participating interests in its portion of the Obligation. In the event of any such sale to a Participant, (i) such Lender shall remain a "Lender" under the Loan Documents and the Participant shall not constitute a "Lender" hereunder, (ii) such Lender's obligations under the Loan Documents shall remain unchanged, (iii) such Lender shall remain solely responsible for the performance thereof, (iv) such Lender shall remain the holder of its share of the Principal Debt for all purposes under the Loan Documents, (v) Borrower and Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender's Rights and obligations under the Loan Documents, and (vi) such Lender shall be solely responsible for any withholding taxes or any filing or reporting requirements relating to such participation and shall hold Borrower and Administrative Agent and their respective successors, permitted assigns, officers, directors, employees, agents, and representatives harmless against the same. Participants shall have no Rights under the Loan Documents, other than certain voting Rights as provided below. Subject to the following, each Lender shall be entitled to obtain (on behalf of its Participants) the benefits of SECTION 4 with respect to all participations in its part of the Obligation outstanding from time to time, so long as Borrower shall not be obligated to pay any amount in excess of the amount that would be due to such Lender under SECTION 4 calculated as though no participations have been made. No Lender shall sell any participating interest under which the Participant shall have any Rights to approve any amendment, modification, or waiver of any Loan Document, except to the extent such amendment, modification, or waiver extends the due date for payment of any amount in respect of principal (other than mandatory prepayments), interest, or fees due under the Loan Documents, reduces the interest rate or the amount of principal or fees applicable to the Obligation (except such reductions as are contemplated by the Loan Documents), or releases all or any substantial portion of the Guaranties under the Loan Documents; provided that, in those cases where a Participant is entitled to the benefits of SECTION 4 or a Lender grants Rights to its Participants to approve amendments to or waivers of the Loan Documents respecting the matters previously described in this sentence, such Lender must include a voting mechanism in the relevant participation agreement or agreements, as the case may be, whereby a majority of such Lender's portion of the Obligation (whether held by such Lender or Participant) shall control the vote for all of such Lender's portion of the Obligation. Except in the case of the sale of a participating interest to another Lender, the relevant participation agreement shall not permit the Participant to transfer, pledge, assign, sell participations in, or otherwise encumber its portion of the Obligation, unless the consent of the transferring Lender (which consent will not be unreasonably withheld) has been obtained. NBPLP CREDIT AGREEMENT
(f) Notwithstanding any other provision set forth in this Agreement, any Lender may, without notice to, or the consent of Borrower or Administrative Agent, at any time assign and pledge all or any portion of its Borrowings and its Notes (to the extent any Principal Debt owed to such assigning Lender is evidenced by a Note or Notes) to any Federal Reserve Bank as collateral security pursuant to Regulation A and any Operating Circular issued by such Federal Reserve Bank or any Lender which is a fund may pledge all or any portion of its Borrowings and its Notes (to the extent any Principal Debt owed to such assigning Lender is evidenced by a Note or Notes) to its trustee in support of its obligations to its trustee. No such assignment shall release the assigning Lender from its obligations hereunder.
(g) Any Lender may furnish any information concerning the Loan Parties in the possession of such Lender from time to time to Eligible Assignees and Participants (including prospective Eligible Assignees and Participants), subject to the provisions of SECTION 14.14.
Appears in 1 contract
Samples: Revolving Credit Agreement (Protection One Alarm Monitoring Inc)
Successors and Assigns; Assignments and Participations. (a) This Agreement shall be binding upon, Each Loan Document binds and inure inures to the benefit of the parties hereto thereto, any intended beneficiary thereof, and each of their respective successors and permitted assigns, except that (i) Borrower may not, directly or indirectly, assign or transfer, or attempt to assign or transfer, any of its Rights, duties, or obligations under any Loan Documents without the express written consent of all Lenders, and (ii) except as permitted NBPLP CREDIT AGREEMENT under this Section, no . No Lender may transfer, pledge, assign, sell any participation in, or otherwise encumber its portion of the ObligationObligation except as permitted by this SECTION 14.12.
(b) Each Lender may assign to one or more Eligible Assignees financial institutions approved by Borrower and Agent (which approval shall not be unreasonably withheld) (each a "PURCHASER") all or a portion of its Rights rights and obligations under the Loan Documents this Agreement (including, without limitation, all or a portion of its Borrowings Loans, its Notes, and its Notes to the extent any Principal Debt owed to such assigning Lender is evidenced by a Note or NotesCommitments); providedPROVIDED, howeverHOWEVER, that:THAT
(i) each such assignment shall be to an Eligible Assignee;
(ii) except in the case of an assignment to another Lender or in the case of an assignment of all of a Lender's Rights rights and obligations under the Loan Documentsthis Agreement, any such partial assignment under the Facility shall not be less than in an amount at least equal to $5,000,000 unless Borrower and Administrative Agent consent thereto 10,000,000 or an integral multiple of $1,000,000 in excess thereof;
(in their sole discretionii) in writing which may be evidenced each such assignment by their acceptance and execution of the related Assignment and Acceptance Agreement; provided that, no partial assignment for the Facility (including any assignment among Lenders) may result in any Lender holding less than $10,000,000, provided further that, a Lender may hold an amount less than $10,000,000 but greater than $5,000,000 only if such Lender shall hold at least $10,000,000 in the aggregate be of a constant, and not varying, percentage of all of its rights and obligations under this Facility Agreement and the Multi- Year Revolving Agreement (notwithstanding the foregoing, in the event the Multi-Year Revolving Agreement is terminated, any Lender may continue to hold an amount in this Facility greater than or equal to the amount such Lender held on the date of the termination of the Multi-Year Revolving Agreement);Notes; and
(iii) the parties to such assignment shall execute and deliver to Administrative Agent for its acceptance an Assignment and Acceptance Agreement in the form of EXHIBIT E heretoI, together with any Notes (to the extent any Principal Debt owed to such assigning Lender is evidenced by a Note or Notes) subject to such assignment and a processing fee of $3,500, including, without limitation, any assignment between Lenders; and
(iv) so long as any Lender is an Agent under this Agreement, such Lender (or an Affiliate of such Lender) shall retain an economic interest in the Loan Documents, will not assign all of its Rights, duties, or obligations under the Loan Documents, except to an Affiliate of such Lender, and will not enter into any Assignment and Acceptance Agreement that would have the effect of such Lender assigning all of its Rights, duties, or obligations under the Loan Documents to any Person other than an Affiliate of such Lender unless such Agent has relinquished such title in accordance with SECTION 13.1 (with respect to Administrative Agent) or SECTION 13.10 (with respect to the other Agents). Upon execution, delivery, and acceptance of such Assignment and Acceptance AgreementAcceptance, the assignee thereunder shall be a party hereto and, to the extent of such assignment, have the obligations, Rightsrights, and benefits of a Lender under the Loan Documents hereunder and the assigning Lender shall, to the extent of such assignment, relinquish its Rights rights and be released from its obligations under the Loan Documentsthis Agreement. Upon the consummation of any assignment pursuant to this SectionSECTION 14.12(b), but only upon the request of the assignor or assignee made through Administrative Agentassignor, Agent and Borrower shall issue make appropriate arrangements so that, if required, new Notes are issued to the assignor and the assignee, reflecting such Assignment and Acceptance. If the assignee is not incorporated under the laws of the United States of America U.S. or a state thereof, it shall deliver to Borrower and Administrative Agent certification as to exemption from deduction or withholding of Taxes in accordance with SECTION 4.63.20.
(c) Administrative Agent shall maintain at its address referred to in SECTION 14.3 a copy of each Assignment and Acceptance Agreement delivered to and accepted by it and a register for NBPLP CREDIT AGREEMENT the recordation of the names and addresses of the Lenders and the Commitment PercentageCommitments of, and principal amount of the Borrowings Loans owing to, each Lender from time to time (the "REGISTER"). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and Borrower, Administrative Agent and the Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of the Loan Documentsthis Agreement. The Register shall be available for inspection by Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice. Upon the consummation of any assignment in accordance with this SECTION 14.13, SCHEDULE 2.1 shall automatically be deemed amended (to the extent required) by Administrative Agent to reflect the name, address, and, where appropriate, respective Committed Sums under the Facility (as the case may be) of the assignor and assignee.
(d) Upon its receipt of an Assignment and Acceptance Agreement executed by the parties thereto, together with any Notes (to the extent any Principal Debt owed to such assigning Lender is evidenced by a Note or Notes) subject to such assignment and payment of the processing fee, Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of EXHIBIT E heretoI, (i) accept such Assignment and Acceptance AgreementAcceptance, (ii) record the information contained therein in the Register, Register and (iii) give prompt notice thereof to the parties thereto.
(e) Subject to the provisions of this Section and in accordance with applicable Law, any Each Lender may, in the ordinary course of its commercial banking business and in accordance with applicable Law, at any time may sell participations to one or more Persons (each in all or a "PARTICIPANT") participating interests in its portion of the Obligation. In the event its rights, obligations or rights and obligations under this Agreement (including all or a portion of any such sale to a Participantits Commitments or its Loans); PROVIDED, HOWEVER, THAT (i) such Lender shall remain a "Lender" under the Loan Documents and the Participant shall not constitute a "Lender" hereunder, (ii) such Lender's obligations under the Loan Documents this Agreement shall remain unchanged, (iiiii) such Lender shall remain solely responsible to the other parties hereto for the performance thereofof such obligations, (iii) the Participant shall be entitled to the benefit of the yield protection provisions contained in SECTIONS 3.15 through 3.20 (however, no Participant is entitled to receive any greater payment than the transferor Lender would have been entitled to receive) and the right of set-off contained in SECTION 3.12, and (iv) such Lender shall remain the holder of its share of the Principal Debt for all purposes under the Loan Documents, (v) Borrower and Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender's Rights rights and obligations under the Loan Documentsthis Agreement, and (vi) such Lender shall be solely responsible for any withholding taxes or any filing or reporting requirements retain the sole right to enforce the obligations of Borrower relating to such participation its Loans and shall hold Borrower its Notes and Administrative Agent and their respective successors, permitted assigns, officers, directors, employees, agents, and representatives harmless against the same. Participants shall have no Rights under the Loan Documents, other than certain voting Rights as provided below. Subject to the following, each Lender shall be entitled to obtain (on behalf of its Participants) the benefits of SECTION 4 with respect to all participations in its part of the Obligation outstanding from time to time, so long as Borrower shall not be obligated to pay any amount in excess of the amount that would be due to such Lender under SECTION 4 calculated as though no participations have been made. No Lender shall sell any participating interest under which the Participant shall have any Rights to approve any amendment, modification, or waiver of any Loan Documentprovision of this Agreement (OTHER THAN amendments, except to the extent such amendment, modificationmodifications, or waiver extends the due date for payment of any amount in respect of principal (other than mandatory prepayments), interest, or fees due under the Loan Documents, reduces the interest rate or waivers decreasing the amount of principal of or fees applicable to the Obligation (except rate at which interest is payable on such reductions as are contemplated by Loans or Notes, extending any scheduled principal payment date or date fixed for the Loan Documents)payment of interest on such Loans or Notes, or releases all or any substantial portion of the Guaranties under the Loan Documents; provided that, in those cases where a Participant is entitled to the benefits of SECTION 4 or a Lender grants Rights to extending its Participants to approve amendments to or waivers of the Loan Documents respecting the matters previously described in this sentence, such Lender must include a voting mechanism in the relevant participation agreement or agreements, as the case may be, whereby a majority of such Lender's portion of the Obligation (whether held by such Lender or Participant) shall control the vote for all of such Lender's portion of the Obligation. Except in the case of the sale of a participating interest to another Lender, the relevant participation agreement shall not permit the Participant to transfer, pledge, assign, sell participations in, or otherwise encumber its portion of the Obligation, unless the consent of the transferring Lender (which consent will not be unreasonably withheld) has been obtained. NBPLP CREDIT AGREEMENTCommitments).
(f) Notwithstanding any other provision set forth in this Agreement, any Lender may, without notice to, or the consent of Borrower or Administrative Agent, may at any time assign and pledge all or any portion of its Borrowings Loans and its Notes (to the extent any Principal Debt owed to such assigning Lender is evidenced by a Note or Notes) to any Federal Reserve Bank as collateral security pursuant to Regulation A and any Operating Circular issued by such Federal Reserve Bank or any Lender which is a fund may pledge all or any portion of its Borrowings and its Notes (to the extent any Principal Debt owed to such assigning Lender is evidenced by a Note or Notes) to its trustee in support of its obligations to its trusteeBank. No such assignment shall release the assigning Lender from its obligations hereunder.
(g) Any Lender may furnish any information concerning the Loan Parties Borrower or any of its Subsidiaries in the possession of such Lender from time to time to Eligible Assignees Purchasers and Participants (including prospective Eligible Assignees Purchasers and Participants), subject to the provisions of SECTION 14.14.
Appears in 1 contract
Successors and Assigns; Assignments and Participations. (a) This Agreement Each Lender may, with the prior written consent of Borrower (which consent shall not be binding upon, unreasonably withheld or delayed and inure to the benefit of the parties hereto and their respective successors and assigns, except that which consent shall not be required (i) Borrower may notin connection with an assignment to an Affiliate, directly or indirectly, assign or transfer, or attempt to assign or transfer, any of its Rights, duties, or obligations under any Loan Documents without the express written consent of all Lenders, and (ii) except as permitted NBPLP CREDIT AGREEMENT under this Sectionin connection with any transaction described in Section 13.2(f) hereof, no Lender may transferor (iii) after the occurrence and during the continuance of an Event of Default) and with the consent of Agent, pledge, at any time assign, transfer or sell any participation in, or otherwise encumber its portion of the Obligation.
(b) Each Lender may assign to one or more Eligible Assignees all or a portion of its Rights rights and obligations under the Loan Documents (including, without limitation, delegate all or a portion of its Borrowings obligations under this Agreement and the other Loan Documents (including all its Notes rights and obligations with respect to the extent any Principal Debt owed Loans, Obligations and/or Collateral) to such assigning Lender is evidenced by one or more Persons (a Note or Notes"Transferee"); provided, however, that:
(i) each that such assignment shall be to an Eligible Assignee;
(ii) except in the case of an assignment to another Transferee and such assigning Lender or in the case of an assignment of all of a Lender's Rights and obligations under the Loan Documents, any such partial assignment under the Facility shall not be less than $5,000,000 unless Borrower and Administrative Agent consent thereto (in their sole discretion) in writing which may be evidenced by their acceptance and execution of the related Assignment and Acceptance Agreement; provided that, no partial assignment for the Facility (including any assignment among Lenders) may result in any Lender holding less than $10,000,000, provided further that, a Lender may hold an amount less than $10,000,000 but greater than $5,000,000 only if such Lender shall hold at least $10,000,000 in the aggregate of this Facility and the Multi- Year Revolving Agreement (notwithstanding the foregoing, in the event the Multi-Year Revolving Agreement is terminated, any Lender may continue to hold an amount in this Facility greater than or equal to the amount such Lender held on the date of the termination of the Multi-Year Revolving Agreement);
(iii) the parties to such assignment shall execute and deliver to Administrative Agent for its acceptance an Assignment and Acceptance Agreement recording in the form of EXHIBIT E heretoRegister, together with any Notes (to the extent any Principal Debt owed to such assigning a Lender is evidenced by a Note or Notes) subject to such assignment and a processing fee of $3,500, including, without limitation, any assignment between Lenders; and
(iv) so long as any Lender is an Agent under this Addition Agreement, such Lender (or an Affiliate of such Lender) which shall retain an economic interest be in the Loan Documents, will not assign all of form and substance reasonably acceptable to Agent in its Rights, duties, or obligations under the Loan Documents, except to an Affiliate of such Lender, and will not enter into any Assignment and Acceptance Agreement that would have the effect of such Lender assigning all of its Rights, duties, or obligations under the Loan Documents to any Person other than an Affiliate of such Lender unless such Agent has relinquished such title in accordance with SECTION 13.1 (with respect to Administrative Agent) or SECTION 13.10 (with respect to the other Agents)Permitted Discretion. Upon such execution, delivery, acceptance and acceptance of recording, from and after the effective date determined pursuant to such Assignment and Acceptance Lender Addition Agreement, (i) the assignee Transferee thereunder shall be a party hereto and, to the extent of provided in such assignmentLender Addition Agreement, have the obligationssame rights, Rights, benefits and benefits of obligations as it would if it were a Lender under the Loan Documents and the assigning Lender shall, to the extent of such assignment, relinquish its Rights and be released from its obligations under the Loan Documents. Upon the consummation of any assignment pursuant to this Section, but only upon the request of the assignor or assignee made through Administrative Agent, Borrower shall issue appropriate Notes to the assignor and the assignee, reflecting such Assignment and Acceptance. If the assignee is not incorporated under the laws of the United States of America or a state thereof, it shall deliver to Borrower and Administrative Agent certification as to exemption from deduction or withholding of Taxes in accordance with SECTION 4.6.
(c) Administrative Agent shall maintain at its address referred to in SECTION 14.3 a copy of each Assignment and Acceptance Agreement delivered to and accepted by it and a register for NBPLP CREDIT AGREEMENT the recordation of the names and addresses of the Lenders and the Commitment Percentage, and principal amount of the Borrowings owing to, each Lender from time to time (the "REGISTER"). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and Borrower, Administrative Agent and the Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of the Loan Documents. The Register shall be available for inspection by Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice. Upon the consummation of any assignment in accordance with this SECTION 14.13, SCHEDULE 2.1 shall automatically be deemed amended (to the extent required) by Administrative Agent to reflect the name, address, and, where appropriate, respective Committed Sums under the Facility (as the case may be) of the assignor and assignee.
(d) Upon its receipt of an Assignment and Acceptance Agreement executed by the parties thereto, together with any Notes (to the extent any Principal Debt owed to such assigning Lender is evidenced by a Note or Notes) subject to such assignment and payment of the processing fee, Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of EXHIBIT E hereto, (i) accept such Assignment and Acceptance Agreement, (ii) record the information contained therein in the Register, and (iii) give prompt notice thereof to the parties thereto.
(e) Subject to the provisions of this Section and in accordance with applicable Law, any Lender may, in the ordinary course of its commercial banking business and in accordance with applicable Law, at any time sell to one or more Persons (each a "PARTICIPANT") participating interests in its portion of the Obligation. In the event of any such sale to a Participant, (i) such Lender shall remain a "Lender" under the Loan Documents and the Participant shall not constitute a "Lender" hereunder, (ii) such Lender's obligations under the Loan Documents shall remain unchanged, (iii) such Lender shall remain solely responsible for the performance thereof, (iv) such Lender shall remain the holder of its share of the Principal Debt for all purposes under the Loan Documents, (v) Borrower and Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender's Rights and obligations under the Loan Documents, and (vi) such assigning Lender shall be solely responsible for any withholding taxes or any filing or reporting requirements relating to such participation and shall hold Borrower and Administrative Agent and their respective successors, permitted assigns, officers, directors, employees, agents, and representatives harmless against the same. Participants shall have no Rights under the Loan Documents, other than certain voting Rights as provided below. Subject to the following, each Lender shall be entitled to obtain (on behalf relieved of its Participants) the benefits of SECTION 4 obligations hereunder with respect to all participations in its part of the Obligation outstanding from time to time, so long as Borrower shall not be obligated to pay any amount in excess of the amount that would be due to such Lender under SECTION 4 calculated as though no participations have been made. No Lender shall sell any participating interest under which the Participant shall have any Rights to approve any amendment, modification, Commitment or waiver of any Loan Document, except to the extent such amendment, modification, or waiver extends the due date for payment of any amount in respect of principal (other than mandatory prepayments), interest, or fees due under the Loan Documents, reduces the interest rate or the amount of principal or fees applicable to the Obligation (except such reductions as are contemplated by the Loan Documents), or releases all or any substantial assigned portion of the Guaranties under the Loan Documents; provided that, in those cases where a Participant is entitled to the benefits of SECTION 4 or a Lender grants Rights to its Participants to approve amendments to or waivers of the Loan Documents respecting the matters previously described in this sentence, such Lender must include a voting mechanism in the relevant participation agreement or agreementsthereof, as the case may be, whereby a majority of to the extent that such Lender's portion of obligations shall have been expressly assumed by the Obligation (whether held by Transferee pursuant to such Lender or Participant) shall control the vote for all of such Lender's portion of the Obligation. Except Addition Agreement (and, in the case of a Lender Addition Agreement covering all or the sale of a participating interest to another Lender, the relevant participation agreement shall not permit the Participant to transfer, pledge, assign, sell participations in, or otherwise encumber its remaining portion of the Obligation, unless the consent of the transferring Lender (which consent will not be unreasonably withheld) has been obtained. NBPLP CREDIT AGREEMENT
(f) Notwithstanding any other provision set forth in an assigning Lender's rights and obligations under this Agreement, any Lender may, without notice to, or the consent of Borrower or Administrative Agent, at any time assign and pledge all or any portion of its Borrowings and its Notes (to the extent any Principal Debt owed to such assigning Lender is evidenced by shall cease to be a Note or Notes) party hereto but shall nevertheless continue to any Federal Reserve Bank as collateral security pursuant to Regulation A and any Operating Circular issued by such Federal Reserve Bank or any Lender which is a fund may pledge all or any portion of its Borrowings and its Notes (be entitled to the extent any Principal Debt owed to such assigning Lender is evidenced by a Note or Notes) to its trustee in support benefits of its obligations to its trustee. No such assignment shall release the assigning Lender from its obligations hereunderSections 13.4 and 13.
(g) Any Lender may furnish any information concerning the Loan Parties in the possession of such Lender from time to time to Eligible Assignees and Participants (including prospective Eligible Assignees and Participants), subject to the provisions of SECTION 14.14.
Appears in 1 contract
Samples: Revolving Credit, Term Loan and Security Agreement (Trover Solutions Inc)
Successors and Assigns; Assignments and Participations. (a) This Agreement shall be binding upon, and inure to the benefit of the parties hereto and their respective successors and assigns, except that (i) Borrower may not, directly or indirectly, assign or transfer, or attempt to assign or transfer, any of its Rights, duties, or obligations under any Loan Documents without the express written consent of all Lenders, and (ii) except as permitted NBPLP CREDIT AGREEMENT under this Section, no Lender may transfer, pledge, assign, sell any participation in, or otherwise encumber its portion of the Obligation.
(b) Each Lender may assign to one or more Eligible Assignees all or a portion of its Rights and obligations under the Loan Documents (including, without limitation, all or a portion of its Borrowings and its Revolver Notes -- to the extent any Principal Debt owed to such assigning Lender is evidenced by a Revolver Note or Revolver Notes); provided, however, that:
(i) each such assignment shall be to an Eligible Assignee;
(ii) except in the case of an assignment to another Lender, an Affiliate of Lender or an Approved Fund of any Lender, or in the case of an assignment of all of a Lender's Rights and obligations under the Loan Documents, any such partial assignment under the Revolver Facility shall not be less than $5,000,000 2,500,000 (unless Borrower and Administrative Agent and, unless a Default or Potential Default has occurred and is continuing, Borrower consent thereto (in their sole discretion) in writing which may be evidenced by their acceptance and execution of the related Assignment and Acceptance Agreement); provided that, no partial assignment for the Revolver Facility (including any assignment among Lenders) may result in any Lender holding less than $10,000,000, provided further that, a Lender may hold an amount less than $10,000,000 but greater than $5,000,000 only if such Lender shall hold at least $10,000,000 1,000,000 in the aggregate of this Facility and the Multi- Year Revolving Agreement (notwithstanding the foregoing, in the event the Multi-Year Revolving Agreement is terminated, any Lender may continue to hold an amount in this Facility greater than or equal to the amount such Lender held on the date of the termination of the Multi-Year Revolving Agreement)Revolver Facility;
(iii) each such assignment by a Lender shall be of a proportionate part of all of the assigning Lender's Rights and obligations under this Agreement and the Revolver Notes (to the extent any Principal Debt owed to such assigning Lender is evidenced by a Revolver Note or Revolver Notes), except that this clause (iii) shall not be construed to prohibit the assignment of a proportionate part of all of the assigning Lender's Rights and obligations in respect of the Revolver Facility;
(iv) the parties to such assignment shall execute and deliver to Administrative Agent for its acceptance an Assignment and Acceptance Agreement substantially in the form of EXHIBIT E Exhibit F hereto, together with any Revolver Notes (to the extent any Principal Debt owed to such assigning Lender is evidenced by a Revolver Note or Revolver Notes) subject to such assignment and a processing fee of $3,500, including, without limitation, any assignment between Lenders; and
(ivv) so long as any Lender is an the Administrative Agent under this Agreement, such Lender (or an Affiliate of such Lender) shall retain an economic interest in the Loan Documents, will not assign all of its Rights, duties, or obligations under the Loan Documents, except to an Affiliate of such Lender, and will not enter into any Assignment and Acceptance Agreement that would have the effect of such Lender assigning all of its Rights, duties, or obligations under the Loan Documents to any Person other than an Affiliate of such Lender unless such Administrative Agent has relinquished such title in accordance with SECTION 13.1 (with respect to Administrative Agent) or SECTION 13.10 (with respect to the other Agents)Section 12.1. Upon execution, delivery, and acceptance of such Assignment and Acceptance Agreement, the assignee thereunder shall be a party hereto and, to the extent of such assignment, have the obligations, Rights, and benefits of a Lender under the Loan Documents and the assigning Lender shall, to the extent of such assignment, relinquish its Rights and be released from its obligations under the Loan Documents. Upon the consummation of any assignment pursuant to this Section, but only upon the request of the assignor or assignee made through Administrative Agent, Borrower shall issue appropriate Revolver Notes to the assignor and the assignee, reflecting such Assignment and Acceptance. If the assignee is not incorporated under the laws of the United States of America or a state thereof, it shall deliver to Borrower and Administrative Agent certification as to exemption from deduction or withholding of Taxes in accordance with SECTION Section 4.6.
(c) Administrative Agent (acting solely for this administrative purpose as an agent for Borrower) shall maintain at its address referred to in SECTION 14.3 Section 13.3 a copy of each Assignment and Acceptance Agreement delivered to and accepted by it and a register for NBPLP CREDIT AGREEMENT the recordation of the names and addresses of the Lenders and the Commitment Percentage, and principal amount of the Borrowings owing to, each Lender from time to time (the "REGISTERRegister"). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and Borrower, Administrative Agent and the Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of the Loan Documents. The Register shall be available for inspection by Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice. Upon the consummation of any assignment in accordance with this SECTION 14.13Section 13.13, SCHEDULE Schedule 2.1 shall automatically be deemed amended (to the extent required) by Administrative Agent to reflect the name, address, and, where appropriate, the respective Committed Sums under the Revolver Facility (as the case may be) of the assignor and assignee.
(d) Upon its receipt of an Assignment and Acceptance Agreement executed by the parties thereto, together with any Revolver Notes (to the extent any Principal Debt owed to such assigning Lender is evidenced by a Revolver Note or Revolver Notes) subject to such assignment and payment of the processing fee, Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of EXHIBIT E Exhibit F hereto, (i) accept such Assignment and Acceptance Agreement, (ii) record the information contained therein in the Register, and (iii) give prompt notice thereof to the parties thereto.
(e) Subject to the provisions of this Section and in accordance with applicable Law, any Lender may, in the ordinary course of its commercial banking business and in accordance with applicable Law, at any time sell to one or more Persons (other than Borrower or any Affiliate of Borrower) (each a "PARTICIPANTParticipant") participating interests in its portion of the Obligation. In the event of any such sale to a Participant, (i) such Lender shall remain a "Lender" under the Loan Documents and the Participant shall not constitute a "Lender" hereunder, (ii) such Lender's obligations under the Loan Documents shall remain unchanged, (iii) such Lender shall remain solely responsible for the performance thereof, (iv) such Lender shall remain the holder of its share of the Principal Debt for all purposes under the Loan Documents, (v) Borrower and Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender's Rights and obligations under the Loan Documents, and (vi) such Lender shall be solely responsible for any withholding taxes Taxes or any filing or reporting requirements relating to such participation and shall hold Borrower and Administrative Agent and their respective successors, permitted assigns, officers, directors, employees, agents, and representatives harmless against the same. Participants shall have no Rights under the Loan Documents, other than certain voting Rights as provided below. Subject to the following, each Lender shall be entitled to obtain (on behalf of its Participants) the benefits of SECTION Section 4 with respect to all participations in its part of the Obligation outstanding from time to time, so long as Borrower shall not be obligated to pay any amount in excess of the amount that would be due to such Lender under SECTION Section 4 calculated as though no participations have been made. No Lender shall sell any participating interest under which the Participant shall have any Rights to approve any amendment, modification, or waiver of any Loan Document, except to the extent such amendment, modification, or waiver extends the due date for payment of any amount in respect of principal (other than mandatory prepayments), interest, or fees due under the Loan Documents, reduces the interest rate or the amount of principal or fees applicable to the Obligation (except such reductions as are contemplated by the Loan Documents), or releases all or any substantial portion of the Guaranties or all or any substantial portion of the Collateral for the Obligation under the Loan DocumentsDocuments (except such releases of Guaranties or Collateral as are contemplated in Section 6.5); provided that, in those cases where a Participant is entitled to the benefits of SECTION Section 4 or a Lender grants Rights to its Participants to approve amendments to or waivers of the Loan Documents respecting the matters previously described in this sentence, such Lender must include a voting mechanism in the relevant participation agreement or agreements, as the case may be, whereby a majority of such Lender's portion of the Obligation (whether held by such Lender or Participant) shall control the vote for all of such Lender's portion of the Obligation. Except in the case of the sale of a participating interest to another Lender, the relevant participation agreement shall not permit the Participant to transfer, pledge, assign, sell participations in, or otherwise encumber its portion of the Obligation, unless the consent of the transferring Lender (which consent will not be unreasonably withheld) has been obtained. NBPLP CREDIT AGREEMENT.
(f) Notwithstanding any other provision set forth in this Agreement, any Lender may, without notice to, or the consent of Borrower or Administrative Agent, at any time assign and pledge all or any portion of its Borrowings and its Revolver Notes (to the extent any Principal Debt owed to such assigning Lender is evidenced by a Revolver Note or Revolver Notes) to any Federal Reserve Bank as collateral security pursuant to Regulation A and any Operating Circular issued by such Federal Reserve Bank or any Lender which is a fund may pledge all or any portion of its Borrowings and its Revolver Notes (to the extent any Principal Debt owed to such assigning Lender is evidenced by a Revolver Note or Revolver Notes) to its any trustee in support or to any other representative of its holders of obligations owed or securities issued by such fund as security for such obligations or securities; provided that any transfer to its trusteeany Person upon the enforcement of such pledge or security interest may only be made subject to this Section 13.13. No such assignment or pledge shall release the assigning Lender from its obligations hereunder.
(g) Any Lender may furnish any information concerning the Loan Parties and Subsidiaries thereof in the possession of such Lender from time to time to Eligible Assignees and Participants (including prospective Eligible Assignees and Participants), subject ) and to counterparties under a Financial Hedge issued by a Lender or an Affiliate of a Lender to the provisions of SECTION 14.14extent permitted by the Loan Documents.
Appears in 1 contract
Samples: Revolving Credit Agreement (Dobson Communications Corp)
Successors and Assigns; Assignments and Participations. (a) This The provisions of this Agreement shall be binding upon, upon and inure to the benefit of the parties hereto and their respective successors and assignsassigns permitted hereby (including any Affiliate of the Issuing Bank that issues any Letter of Credit), except that (i) the Borrower may not, directly or indirectly, not assign or transfer, or attempt to assign or transfer, otherwise transfer any of its Rights, duties, rights or obligations under any Loan Documents hereunder without the express prior written consent of all Lenders, each Lender (and any attempted assignment or transfer by the Borrower without such consent shall be null and void) and (ii) except as permitted NBPLP CREDIT AGREEMENT under this Section, no Lender may transfer, pledge, assign, sell any participation in, assign or otherwise encumber transfer its portion rights or obligations hereunder except in accordance with this Section. Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby (including any Affiliate of the ObligationIssuing Bank that issues any Letter of Credit), Participants (to the extent provided in paragraph (c) of this Section) and, to the extent expressly contemplated hereby, the Related Parties of each of the Administrative Agent, the Issuing Bank and the Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement.
(bi) Each Subject to the conditions set forth in paragraph (b)(ii) below, any Lender may assign to one or more Eligible Assignees assignees (each, an “Assignee”) all or a portion of its Rights rights and obligations under the Loan Documents this Agreement (including, without limitation, including all or a portion of its Borrowings Commitments and its Notes the Loans at the time owing to it) with the extent any Principal Debt owed prior written consent (such consent not to such assigning Lender is evidenced by a Note be unreasonably withheld or Notes); provided, however, thatdelayed) of:
(iA) each such assignment the Borrower, provided that no consent of the Borrower shall be required for an assignment to a Lender, an Eligible AssigneeAffiliate of a Lender, an Approved Fund or, if an Event of Default has occurred and is continuing, any other Person;
(B) the Administrative Agent, provided that no consent of the Administrative Agent shall be required for an assignment of a given Class of Loans to a Lender holding such Class of Loans, an Affiliate of such a Lender or an Approved Fund of such a Lender; and
(C) the Issuing Bank and the Swingline Lender, provided that no consent of the Issuing Bank or the Swingline Lender shall be required for an assignment of all or any portion of a Term Loan or for an assignment to a Lender, an Affiliate of a Lender or an Approved Fund.
(ii) Assignments shall be subject to the following additional conditions:
(A) except in the case of an assignment to another a Lender, an Affiliate of a Lender or in the case of an assignment of all the entire remaining amount of a the assigning Lender's Rights and obligations under ’s Commitment or Loans of any Class, the Loan Documents, any amount of the Commitment or Loans of the assigning Lender subject to each such partial assignment under (determined as of the Facility date the Assignment Agreement with respect to such assignment is delivered to the Administrative Agent) shall not be less than $5,000,000 unless Borrower and Administrative Agent consent thereto (in their sole discretion) in writing which may be evidenced by their acceptance and execution of the related Assignment and Acceptance Agreement; provided that, no partial assignment for the Facility (including any assignment among Lenders) may result in any Lender holding less than $10,000,000, provided further that, a Lender may hold an amount less than $10,000,000 but greater than $5,000,000 only if such Lender shall hold at least $10,000,000 in the aggregate of this Facility and the Multi- Year Revolving Agreement (notwithstanding the foregoing5.0 million or, in the event the Multi-Year Revolving Agreement is terminatedcase of Term Loans, any Lender may continue to hold an amount in this Facility greater than or equal to the amount such Lender held on the date $1.0 million unless each of the termination Borrower and the Administrative Agent otherwise consent (such consent not to be unreasonably withheld or delayed), provided that no such consent of the Multi-Year Revolving Agreement)Borrower shall be required if an Event of Default has occurred and is continuing;
(iiiB) each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender’s rights and obligations under this Agreement, provided that this clause shall not be construed to prohibit the assignment of a proportionate part of all the assigning Lender’s rights and obligations in respect of one Class of Commitments or Loans;
(C) the parties to such each assignment shall execute and deliver to the Administrative Agent for its acceptance an Assignment and Acceptance Agreement in the form of EXHIBIT E heretoAgreement, together with any Notes (to the extent any Principal Debt owed to such assigning Lender is evidenced by a Note or Notes) subject to such assignment and a processing and recordation fee of $3,500, including, without limitation, any assignment between Lenders3,500 payable by the Assignee unless such parties otherwise agree; and
(ivD) so long as any Lender is an Agent under this Agreementthe assignee, such Lender (or an Affiliate of such Lender) if it shall retain an economic interest in the Loan Documents, will not assign all of its Rights, duties, or obligations under the Loan Documents, except to an Affiliate of such be a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire in which the assignee designates one or more credit contacts to whom all syndicate-level information (which may contain material non-public information about the Borrower and its affiliates and its Related Parties or their respective securities) will not enter into any Assignment be made available and Acceptance Agreement that would have the effect of who may receive such Lender assigning all of its Rights, duties, or obligations under the Loan Documents to any Person other than an Affiliate of such Lender unless such Agent has relinquished such title information in accordance with SECTION 13.1 (with respect to Administrative Agent) or SECTION 13.10 (with respect to the other Agents)Assignee’s compliance procedures and applicable laws, including Federal and state securities laws. Upon execution, delivery, and acceptance of such Assignment and Acceptance Agreement, For the assignee thereunder shall be a party hereto and, to the extent of such assignment, have the obligations, Rights, and benefits of a Lender under the Loan Documents and the assigning Lender shall, to the extent of such assignment, relinquish its Rights and be released from its obligations under the Loan Documents. Upon the consummation of any assignment pursuant to this Section, but only upon the request of the assignor or assignee made through Administrative Agent, Borrower shall issue appropriate Notes to the assignor and the assignee, reflecting such Assignment and Acceptance. If the assignee is not incorporated under the laws of the United States of America or a state thereof, it shall deliver to Borrower and Administrative Agent certification as to exemption from deduction or withholding of Taxes in accordance with SECTION 4.6.
(c) Administrative Agent shall maintain at its address referred to in SECTION 14.3 a copy of each Assignment and Acceptance Agreement delivered to and accepted by it and a register for NBPLP CREDIT AGREEMENT the recordation of the names and addresses of the Lenders and the Commitment Percentage, and principal amount of the Borrowings owing to, each Lender from time to time (the "REGISTER"). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and Borrower, Administrative Agent and the Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of the Loan Documents. The Register shall be available for inspection by Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice. Upon the consummation of any assignment in accordance with this SECTION 14.13, SCHEDULE 2.1 shall automatically be deemed amended (to the extent required) by Administrative Agent to reflect the name, address, and, where appropriate, respective Committed Sums under the Facility (as the case may be) of the assignor and assignee.
(d) Upon its receipt of an Assignment and Acceptance Agreement executed by the parties thereto, together with any Notes (to the extent any Principal Debt owed to such assigning Lender is evidenced by a Note or Notes) subject to such assignment and payment of the processing fee, Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of EXHIBIT E hereto, (i) accept such Assignment and Acceptance Agreement, (ii) record the information contained therein in the Register, and (iii) give prompt notice thereof to the parties thereto.
(e) Subject to the provisions of this Section and in accordance with applicable Law, any Lender may, in the ordinary course of its commercial banking business and in accordance with applicable Law, at any time sell to one or more Persons (each a "PARTICIPANT") participating interests in its portion of the Obligation. In the event of any such sale to a Participant, (i) such Lender shall remain a "Lender" under the Loan Documents and the Participant shall not constitute a "Lender" hereunder, (ii) such Lender's obligations under the Loan Documents shall remain unchanged, (iii) such Lender shall remain solely responsible for the performance thereof, (iv) such Lender shall remain the holder of its share of the Principal Debt for all purposes under the Loan Documents, (v) Borrower and Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender's Rights and obligations under the Loan Documents, and (vi) such Lender shall be solely responsible for any withholding taxes or any filing or reporting requirements relating to such participation and shall hold Borrower and Administrative Agent and their respective successors, permitted assigns, officers, directors, employees, agents, and representatives harmless against the same. Participants shall have no Rights under the Loan Documents, other than certain voting Rights as provided below. Subject to the following, each Lender shall be entitled to obtain (on behalf of its Participants) the benefits of SECTION 4 with respect to all participations in its part of the Obligation outstanding from time to time, so long as Borrower shall not be obligated to pay any amount in excess of the amount that would be due to such Lender under SECTION 4 calculated as though no participations have been made. No Lender shall sell any participating interest under which the Participant shall have any Rights to approve any amendment, modification, or waiver of any Loan Document, except to the extent such amendment, modification, or waiver extends the due date for payment of any amount in respect of principal (other than mandatory prepayments), interest, or fees due under the Loan Documents, reduces the interest rate or the amount of principal or fees applicable to the Obligation (except such reductions as are contemplated by the Loan Documents), or releases all or any substantial portion of the Guaranties under the Loan Documents; provided that, in those cases where a Participant is entitled to the benefits of SECTION 4 or a Lender grants Rights to its Participants to approve amendments to or waivers of the Loan Documents respecting the matters previously described in this sentence, such Lender must include a voting mechanism in the relevant participation agreement or agreements, as the case may be, whereby a majority of such Lender's portion of the Obligation (whether held by such Lender or Participant) shall control the vote for all of such Lender's portion of the Obligation. Except in the case of the sale of a participating interest to another Lender12.06, the relevant participation agreement shall not permit term “Approved Fund” has the Participant to transfer, pledge, assign, sell participations in, or otherwise encumber its portion of the Obligation, unless the consent of the transferring Lender (which consent will not be unreasonably withheld) has been obtained. NBPLP CREDIT AGREEMENT
(f) Notwithstanding any other provision set forth in this Agreement, any Lender may, without notice to, or the consent of Borrower or Administrative Agent, at any time assign and pledge all or any portion of its Borrowings and its Notes (to the extent any Principal Debt owed to such assigning Lender is evidenced by a Note or Notes) to any Federal Reserve Bank as collateral security pursuant to Regulation A and any Operating Circular issued by such Federal Reserve Bank or any Lender which is a fund may pledge all or any portion of its Borrowings and its Notes (to the extent any Principal Debt owed to such assigning Lender is evidenced by a Note or Notes) to its trustee in support of its obligations to its trustee. No such assignment shall release the assigning Lender from its obligations hereunder.
(g) Any Lender may furnish any information concerning the Loan Parties in the possession of such Lender from time to time to Eligible Assignees and Participants (including prospective Eligible Assignees and Participants), subject to the provisions of SECTION 14.14.following meaning:
Appears in 1 contract
Successors and Assigns; Assignments and Participations. (a) This Agreement shall be binding upon, and inure to the benefit of the parties hereto and their respective successors and assigns, except that (i) Borrower may not, directly or indirectly, assign or transfer, or attempt to assign or transfer, any of its Rights, duties, duties or obligations under any Loan Documents without the express written consent of all Lenders, and (ii) except as permitted NBPLP CREDIT AGREEMENT under this Section, no Lender may transfer, pledge, assign, sell any participation in, or otherwise encumber its portion of the Obligation.
(b) Each Lender may assign to one or more Eligible Assignees all or a portion of its Rights and obligations under the Loan Documents (including, without limitation, all or a portion of its Borrowings and its Notes [to the extent any Principal Debt owed to such assigning Lender is evidenced by a Note or Notes]); provided, however, that:
(i) each Each such assignment shall be to an Eligible Assignee;; Credit Agreement 95
(ii) except Except in the case of an assignment to another Lender Lender, an Affiliate of any Lender, or an Approved Fund of any Lender, or in the case of an assignment of all of a Lender's Rights and obligations under the Loan Documents, any such partial assignment under the any Facility shall not be less than $5,000,000 the following amounts for the Facility indicated, unless Borrower and Administrative Agent and, unless a Default or Potential Default has occurred and is continuing, Borrower consent thereto (in their sole discretion) in writing which may be evidenced by their acceptance and execution of the related Assignment and Acceptance Agreement): ============================================================ Facility Minimum Assignment ============================================================ Revolver Facility $2,500,000 (inclusive of any concurrent assignments under the Term Loan A Facility or the Term Loan B Facility by the assigning Lender to the same assignee) ------------------------------------------------------------ Term Loan A $2,500,000 (inclusive of any concurrent assignments under the Revolver Facility or the Term Loan B Facility by the assigning Lender to the same assignee) ------------------------------------------------------------ Term Loan B $1,000,000 ------------------------------------------------------------ Term Loan C $1,000,000 ============================================================ ; provided that, no partial assignment for the any Facility (including any assignment among Lenders) may result in any Lender holding less than $10,000,000, provided further that, a Lender may hold an amount less than $10,000,000 but greater than $5,000,000 only if such Lender shall hold at least $10,000,000 500,000 in the aggregate of this Facility and the Multi- Year Revolving Agreement (notwithstanding the foregoing, in the event the Multi-Year Revolving Agreement is terminated, any Lender may continue to hold an amount in this Facility greater than or equal to the amount such Lender held on the date of the termination of the Multi-Year Revolving Agreement)Facility;
(iii) Each such assignment by a Lender shall be of a proportionate part of all of the assigning Lender's Rights and obligations under this Agreement and the Notes (to the extent any Principal Debt owed to such assigning Lender is evidenced by a Note or Notes), except that this clause (iii) shall not be construed to prohibit the assignment of a proportionate part of all of the assigning Lender's Rights and obligations in respect of one Facility;
(iv) The parties to such assignment shall execute and deliver to Administrative Agent for its acceptance an Assignment and Acceptance Agreement substantially in the form of EXHIBIT E heretoExhibit F, together with any Notes (to the extent any Principal Debt owed to such assigning Lender is evidenced by a Note or Notes) subject to such assignment and a processing fee of $3,500, including, without limitation, any 3,500 (or $2,500 for an assignment between Lenders) unless such fee is waived or reduced by Administrative Agent; and
(ivv) so So long as any Lender is an Agent (other than a Co-Agent or Managing Agent) under this Agreement, such Lender (or an Affiliate of such Lender) shall retain an economic interest in the Loan Documents, will not assign all of its Rights, duties, or obligations under the Loan Documents, except to an Affiliate of such Lender, and will not enter into any Assignment and Acceptance Agreement that would have the effect of such Lender assigning all of its Rights, duties, or obligations under the Loan Documents to any Credit Agreement 96 Person other than an Affiliate of such Lender unless such Agent has relinquished such title in accordance with SECTION 13.1 Section 12.1 (with respect to Administrative Agent) or SECTION 13.10 Section 12.10 (with respect to the other Agents). Upon execution, delivery, acceptance, and acceptance recordation of such Assignment and Acceptance Agreement, the assignee thereunder shall be a party hereto and, to the extent of such assignment, have the obligations, Rights, and benefits of a Lender under the Loan Documents and the assigning Lender shall, to the extent of such assignment, relinquish its Rights and be released from its obligations under the Loan Documents. Upon the consummation of any assignment pursuant to this Section, but only upon the request of the assignor or assignee made through Administrative Agent, Borrower shall issue appropriate Notes to the assignor and the assignee, reflecting such Assignment and Acceptance. If the assignee is not incorporated under the laws of the United States of America or a state thereof, it shall deliver to Borrower and Administrative Agent certification as to exemption from deduction or withholding of Taxes in accordance with SECTION Section 4.6.
(c) Administrative Agent (acting solely for this administrative purpose as an agent of Borrower) shall maintain at its address referred to in SECTION 14.3 Section 13.3 a copy of each Assignment and Acceptance Agreement delivered to and accepted by it and a register for NBPLP CREDIT AGREEMENT the recordation of the names and addresses of the Lenders and the Commitment Percentage, and principal amount of the Borrowings owing to, each Lender from time to time (the "REGISTERRegister"). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and Borrower, Administrative Agent Agent, and the Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of the Loan Documents. The Register shall be available for inspection by Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice. Upon the consummation of any assignment in accordance with this SECTION 14.13Section 13.13, SCHEDULE Schedule 2.1 shall automatically be deemed amended (to the extent required) by Administrative Agent to reflect the name, address, and, where appropriate, the respective Committed Sums under the Facility (as the case may be) Facilities of the assignor and assignee. No assignment shall be effective until recorded in the Register as provided in this Section 13.13(c).
(d) Upon its receipt of an Assignment and Acceptance Agreement executed by the parties thereto, together with any Notes (to the extent any Principal Debt owed to such assigning Lender is evidenced by a Note or Notes) subject to such assignment and payment of the processing fee, Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of EXHIBIT E heretoExhibit F, (i) accept such Assignment and Acceptance Agreement, (ii) record the information contained therein in the Register, and (iii) give prompt notice thereof to the parties thereto.
(e) Subject to the provisions of this Section and in accordance with applicable Law, any Lender may, in the ordinary course of its commercial banking business and in accordance with applicable Law, at any time sell to one or more Persons (other than any Company or any Affiliate of any Company) (each a "PARTICIPANTParticipant") participating interests in its portion of the Obligation. In the event of any such sale to a Participant, (i) such Lender shall remain a "Lender" under the Loan Documents and the Participant shall not constitute a "Lender" hereunder, (ii) such Lender's obligations under the Loan Documents shall remain unchanged, (iii) such Lender shall remain solely responsible for the performance thereof, (iv) such Lender shall remain the holder of its share of the Principal Debt for all purposes under the Loan Documents, (v) Borrower and Administrative Agent Credit Agreement 97 shall continue to deal solely and directly with such Lender in connection with such Lender's Rights and obligations under the Loan Documents, and (vi) such Lender shall be solely responsible for any withholding taxes Taxes or any filing or reporting requirements relating to such participation and shall hold Borrower and Administrative Agent and their respective successors, permitted assigns, officers, directors, employees, agents, and representatives harmless against the same. Participants shall have no Rights under the Loan Documents, other than certain voting Rights as provided below. Subject to the following, each Lender shall be entitled to obtain (on behalf of its Participants) the benefits of SECTION Section 4 with respect to all participations in its part of the Obligation outstanding from time to time, so long as Borrower shall not be obligated to pay any amount in excess of the amount that would be due to such Lender under SECTION Section 4 calculated as though no participations have been made. No Lender shall sell any participating interest under which the Participant shall have any Rights to approve any amendment, modification, or waiver of any Loan Document, except to the extent such amendment, modification, or waiver extends the due date for payment of any amount in respect of principal (other than mandatory prepayments), interest, or fees due under the Loan Documents, reduces the interest rate or the amount of principal or fees applicable to the Obligation (except such reductions as are contemplated by the Loan Documents), or releases all or any substantial portion substantially all of the Guaranties or all or substantially all of the Collateral for the Obligation under the Loan DocumentsDocuments (except such releases of Guaranties or Collateral as are contemplated in Section 6.4); provided that, in those cases where a Participant is entitled to the benefits of SECTION Section 4 or a Lender grants Rights to its Participants to approve amendments to or waivers of the Loan Documents respecting the matters previously described in this sentence, such Lender must include a voting mechanism in the relevant participation agreement or agreements, as the case may be, whereby a majority of such Lender's portion of the Obligation (whether held by such Lender or Participant) shall control the vote for all of such Lender's portion of the Obligation. Except in the case of the sale of a participating interest to another Lender, the relevant participation agreement shall not permit the Participant to transfer, pledge, assign, sell participations in, or otherwise encumber its portion of the Obligation, unless the consent of the transferring Lender (which consent will not be unreasonably withheld) has been obtained. NBPLP CREDIT AGREEMENT.
(f) Notwithstanding any other provision set forth in this Agreement, any Lender may, without notice to, or the consent of Borrower or Administrative Agent, at any time assign and pledge all or any portion of its Borrowings and its Notes (to the extent any Principal Debt owed to such assigning Lender is evidenced by a Note or Notes) to any Federal Reserve Bank as collateral security pursuant to Regulation A and any Operating Circular issued by such Federal Reserve Bank or any Lender which is a fund may pledge all or any portion of its Borrowings and its Notes (to the extent any Principal Debt owed to such assigning Lender is evidenced by a Note or Notes) to its any trustee in support or to any other representative of its holders of obligations owed or securities issued by such fund as security for such obligations or securities; provided that any transfer to its trusteeany Person upon the enforcement of such pledge or security interest may only be made subject to this Section 13.13. No such assignment shall release the assigning Lender from its obligations hereunder.
(g) Any Lender may furnish any information concerning the Loan Parties Companies in the possession of such Lender from time to time to Eligible Assignees and Participants (including prospective Eligible Assignees and Participants), subject ) and to counterparties under a Financial Hedge issued by a Lender or an Affiliate of a Lender to the provisions of SECTION 14.14.extent permitted by the Loan Documents. Credit Agreement 98
Appears in 1 contract
Successors and Assigns; Assignments and Participations. (a) This Agreement shall be binding upon, and inure to the benefit of the parties hereto and their respective successors and assigns, except that (i) Borrower may not, directly or indirectly, assign or transfer, or attempt to assign or transfer, any of its Rights, duties, duties or obligations under any Loan Documents without the express written consent of all Lenders, and (ii) except as permitted NBPLP CREDIT AGREEMENT under this Section, no Lender may transfer, pledge, assign, sell any participation in, or otherwise encumber its portion of the Obligation.
(b) Each Lender may assign to one or more Eligible Assignees all or a portion of its Rights and obligations under the Loan Documents (including, without limitation, all or a portion of its Borrowings and its Notes to the extent any Principal Debt owed to such assigning Lender is evidenced by a Note or Notes); provided, however, that:
(i) each Each such assignment shall be to an Eligible Assignee;
(ii) except Except in the case of an assignment to another Lender Lender, an Affiliate of any Lender, or an Approved Fund of any Lender, or in the case of an assignment of all of a Lender's Rights and obligations under the Loan Documents, any such partial assignment under the any Facility shall not be less than $5,000,000 the following amounts for the Facility indicated, unless Borrower and Administrative Agent and, unless a Default or Potential Default has occurred and is continuing, Borrower consent thereto (in their sole discretion) in writing which may be evidenced by their acceptance and execution of the related Assignment and Acceptance Agreement): Facility Minimum Assignment -------- ------------------ Revolver Facility $5,000,000 (inclusive of any concurrent assignments under the Term Loan Facility by the assigning Lender to the same assignee) Term Loan Facility $5,000,000 (inclusive of any concurrent assignments under the Revolver Facility or the Term Loan Facility by the assigning Lender to the same assignee) ; provided that, no partial assignment for the any Facility (including any assignment among Lenders) may result in any Lender holding less than $10,000,000, provided further that, a Lender may hold an amount less than $10,000,000 but greater than $5,000,000 only if such Lender shall hold at least $10,000,000 500,000 in the aggregate of this Facility and the Multi- Year Revolving Agreement (notwithstanding the foregoing, in the event the Multi-Year Revolving Agreement is terminated, any Lender may continue to hold an amount in this Facility greater than or equal to the amount such Lender held on the date of the termination of the Multi-Year Revolving Agreement)Facility;
(iii) Each such assignment by a Lender shall be of a proportionate part of all of the assigning Lender's Rights and obligations under this Agreement, the Notes and both Facilities so that both the assignee and the assigning Lender will at all times hold equivalent percentages of the Revolver Facility and the Term Loan Facility;
(iv) The parties to such assignment shall execute and deliver to Administrative Agent for its acceptance an Assignment and Acceptance Agreement substantially in the form of EXHIBIT E heretoF, together with any Notes (to the extent any Principal Debt owed to such assigning Lender is evidenced by a Note or Notes) subject to such assignment and a processing fee of $3,500, including, without limitation, any assignment between Lenders; and
(ivv) so So long as any Lender is an Agent under this Agreement, such Lender (or an Affiliate of such Lender) shall retain an economic interest in the Loan Documents, will not assign all of its Rights, duties, or obligations under the Loan Documents, Documents except to an Affiliate of such Lender, and will not enter into any Assignment and Acceptance Agreement that would have the effect of such Lender assigning all of its Rights, duties, or obligations under the Loan Documents to any Person other than an Affiliate of such Lender unless such Agent has relinquished such title in accordance with SECTION 13.1 12.1 (with respect to Administrative Agent) or SECTION 13.10 12.10 (with respect to the other Agents). Upon execution, delivery, acceptance, and acceptance recordation of such Assignment and Acceptance Agreement, the assignee thereunder shall be a party hereto and, to the extent of such assignment, have the obligations, Rights, and benefits of a Lender under the Loan Documents Documents, and the assigning Lender shall, to the extent of such assignment, relinquish its Rights and be released from its obligations under the Loan Documents. Upon the consummation of any assignment pursuant to this Section, but only upon the request of the assignor or assignee made through Administrative Agent, Borrower shall issue appropriate Notes to the assignor and the assignee, reflecting such Assignment and Acceptance. If the assignee is not incorporated under the laws of the United States of America or a state thereof, it shall deliver to Borrower and Administrative Agent certification as to exemption from deduction or withholding of Taxes in accordance with SECTION 4.6.
(c) Administrative Agent shall maintain at its address referred to in SECTION 14.3 a copy of each Assignment and Acceptance Agreement delivered to and accepted by it and a register for NBPLP CREDIT AGREEMENT the recordation of the names and addresses of the Lenders and the Commitment Percentage, and principal amount of the Borrowings owing to, each Lender from time to time (the "REGISTER"). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and Borrower, Administrative Agent and the Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of the Loan Documents. The Register shall be available for inspection by Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice. Upon the consummation of any assignment in accordance with this SECTION 14.13, SCHEDULE 2.1 shall automatically be deemed amended (to the extent required) by Administrative Agent to reflect the name, address, and, where appropriate, respective Committed Sums under the Facility (as the case may be) of the assignor and assignee.
(d) Upon its receipt of an Assignment and Acceptance Agreement executed by the parties thereto, together with any Notes (to the extent any Principal Debt owed to such assigning Lender is evidenced by a Note or Notes) subject to such assignment and payment of the processing fee, Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of EXHIBIT E hereto, (i) accept such Assignment and Acceptance Agreement, (ii) record the information contained therein in the Register, and (iii) give prompt notice thereof to the parties thereto.
(e) Subject to the provisions of this Section and in accordance with applicable Law, any Lender may, in the ordinary course of its commercial banking business and in accordance with applicable Law, at any time sell to one or more Persons (each a "PARTICIPANT") participating interests in its portion of the Obligation. In the event of any such sale to a Participant, (i) such Lender shall remain a "Lender" under the Loan Documents and the Participant shall not constitute a "Lender" hereunder, (ii) such Lender's obligations under the Loan Documents shall remain unchanged, (iii) such Lender shall remain solely responsible for the performance thereof, (iv) such Lender shall remain the holder of its share of the Principal Debt for all purposes under the Loan Documents, (v) Borrower and Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender's Rights and obligations under the Loan Documents, and (vi) such Lender shall be solely responsible for any withholding taxes or any filing or reporting requirements relating to such participation and shall hold Borrower and Administrative Agent and their respective successors, permitted assigns, officers, directors, employees, agents, and representatives harmless against the same. Participants shall have no Rights under the Loan Documents, other than certain voting Rights as provided below. Subject to the following, each Lender shall be entitled to obtain (on behalf of its Participants) the benefits of SECTION 4 with respect to all participations in its part of the Obligation outstanding from time to time, so long as Borrower shall not be obligated to pay any amount in excess of the amount that would be due to such Lender under SECTION 4 calculated as though no participations have been made. No Lender shall sell any participating interest under which the Participant shall have any Rights to approve any amendment, modification, or waiver of any Loan Document, except to the extent such amendment, modification, or waiver extends the due date for payment of any amount in respect of principal (other than mandatory prepayments), interest, or fees due under the Loan Documents, reduces the interest rate or the amount of principal or fees applicable to the Obligation (except such reductions as are contemplated by the Loan Documents), or releases all or any substantial portion of the Guaranties under the Loan Documents; provided that, in those cases where a Participant is entitled to the benefits of SECTION 4 or a Lender grants Rights to its Participants to approve amendments to or waivers of the Loan Documents respecting the matters previously described in this sentence, such Lender must include a voting mechanism in the relevant participation agreement or agreements, as the case may be, whereby a majority of such Lender's portion of the Obligation (whether held by such Lender or Participant) shall control the vote for all of such Lender's portion of the Obligation. Except in the case of the sale of a participating interest to another Lender, the relevant participation agreement shall not permit the Participant to transfer, pledge, assign, sell participations in, or otherwise encumber its portion of the Obligation, unless the consent of the transferring Lender (which consent will not be unreasonably withheld) has been obtained. NBPLP CREDIT AGREEMENT
(f) Notwithstanding any other provision set forth in this Agreement, any Lender may, without notice to, or the consent of Borrower or Administrative Agent, at any time assign and pledge all or any portion of its Borrowings and its Notes (to the extent any Principal Debt owed to such assigning Lender is evidenced by a Note or Notes) to any Federal Reserve Bank as collateral security pursuant to Regulation A and any Operating Circular issued by such Federal Reserve Bank or any Lender which is a fund may pledge all or any portion of its Borrowings and its Notes (to the extent any Principal Debt owed to such assigning Lender is evidenced by a Note or Notes) to its trustee in support of its obligations to its trustee. No such assignment shall release the assigning Lender from its obligations hereunder.
(g) Any Lender may furnish any information concerning the Loan Parties in the possession of such Lender from time to time to Eligible Assignees and Participants (including prospective Eligible Assignees and Participants), subject to the provisions of SECTION 14.14.,
Appears in 1 contract
Successors and Assigns; Assignments and Participations. (a) This Agreement shall be binding upon, and inure to the benefit of the parties hereto and their respective successors (which shall include in the case of any Lender, any Person resulting from a merger or consolidation) and assigns, except that (i) Borrower Borrowers may not, except as otherwise permitted under the Loan Documents, directly or indirectly, assign or transfer, or attempt to assign or transfer, any of its their Rights, duties, or obligations under any Loan Documents without the express written consent of all the Lenders, and (ii) except as permitted NBPLP CREDIT AGREEMENT under this Section, no Lender may transfer, pledge, assign, sell any participation in, or otherwise encumber its portion of the Obligation.
(b) Each Lender and each Issuing Lender may assign to one or more Eligible Assignees all or a portion of its Rights and obligations under the Loan Documents (including, without limitation, including all or a portion of its Borrowings and its Notes Notes, to the extent any Principal Debt owed to such assigning Lender is evidenced by a Note or Notes); provided, however, that:
(i) each such assignment shall be to an Eligible Assignee;
(ii) except in the case of an assignment to another Lender, an Affiliate of the assigning Lender or an Approved Fund of any Lender, or in the case of an assignment of all of a Lender's Rights and obligations under the Loan Documents, any such partial assignment under the any Facility shall not be less than $5,000,000 the following amounts for the Facility indicated (unless Borrower and the Administrative Agent and, unless a Default or Potential Default has occurred and is continuing, the Borrowers consent thereto (in their sole discretion) in writing which may be evidenced by their acceptance and execution of the related Assignment and Acceptance Agreement; provided that, no partial assignment for the Facility (including any assignment among Lenders) may result in any Lender holding less than $10,000,000, provided further that, a Lender may hold an amount less than $10,000,000 but greater than $5,000,000 only if such Lender shall hold at least $10,000,000 in the aggregate of this Facility and the Multi- Year Revolving Agreement (notwithstanding the foregoing, in the event the Multi-Year Revolving Agreement is terminated, any Lender may continue to hold an amount in this Facility greater than or equal to the amount such Lender held on the date of the termination of the Multi-Year Revolving Agreement);
(iii) the parties to such assignment shall execute and deliver to Administrative Agent for its acceptance an Assignment and Acceptance Agreement in the form of EXHIBIT E hereto, together with any Notes (to the extent any Principal Debt owed to such assigning Lender is evidenced by a Note or Notes) subject to such assignment and a processing fee of $3,500, including, without limitation, any assignment between Lenders; and
(iv) so long as any Lender is an Agent under this Agreement, such Lender (or an Affiliate of such Lender) shall retain an economic interest in the Loan Documents, will not assign all of its Rights, duties, or obligations under the Loan Documents, except to an Affiliate of such Lender, and will not enter into any Assignment and Acceptance Agreement that would have the effect of such Lender assigning all of its Rights, duties, or obligations under the Loan Documents to any Person other than an Affiliate of such Lender unless such Agent has relinquished such title in accordance with SECTION 13.1 (with respect to Administrative Agent) or SECTION 13.10 (with respect to the other Agents). Upon execution, delivery, and acceptance of such Assignment and Acceptance Agreement, the assignee thereunder shall be a party hereto and, to the extent of such assignment, have the obligations, Rights, and benefits of a Lender under the Loan Documents and the assigning Lender shall, to the extent of such assignment, relinquish its Rights and be released from its obligations under the Loan Documents. Upon the consummation of any assignment pursuant to this Section, but only upon the request of the assignor or assignee made through Administrative Agent, Borrower shall issue appropriate Notes to the assignor and the assignee, reflecting such Assignment and Acceptance. If the assignee is not incorporated under the laws of the United States of America or a state thereof, it shall deliver to Borrower and Administrative Agent certification as to exemption from deduction or withholding of Taxes in accordance with SECTION 4.6.
(c) Administrative Agent shall maintain at its address referred to in SECTION 14.3 a copy of each Assignment and Acceptance Agreement delivered to and accepted by it and a register for NBPLP CREDIT AGREEMENT the recordation of the names and addresses of the Lenders and the Commitment Percentage, and principal amount of the Borrowings owing to, each Lender from time to time (the "REGISTER"). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and Borrower, Administrative Agent and the Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of the Loan Documents. The Register shall be available for inspection by Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice. Upon the consummation of any assignment in accordance with this SECTION 14.13, SCHEDULE 2.1 shall automatically be deemed amended (to the extent required) by Administrative Agent to reflect the name, address, and, where appropriate, respective Committed Sums under the Facility (as the case may be) of the assignor and assignee.
(d) Upon its receipt of an Assignment and Acceptance Agreement executed by the parties thereto, together with any Notes (to the extent any Principal Debt owed to such assigning Lender is evidenced by a Note or Notes) subject to such assignment and payment of the processing fee, Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of EXHIBIT E hereto, (i) accept such Assignment and Acceptance Agreement, (ii) record the information contained therein in the Register, and (iii) give prompt notice thereof to the parties thereto.
(e) Subject to the provisions of this Section and in accordance with applicable Law, any Lender may, in the ordinary course of its commercial banking business and in accordance with applicable Law, at any time sell to one or more Persons (each a "PARTICIPANT") participating interests in its portion of the Obligation. In the event of any such sale to a Participant, (i) such Lender shall remain a "Lender" under the Loan Documents and the Participant shall not constitute a "Lender" hereunder, (ii) such Lender's obligations under the Loan Documents shall remain unchanged, (iii) such Lender shall remain solely responsible for the performance thereof, (iv) such Lender shall remain the holder of its share of the Principal Debt for all purposes under the Loan Documents, (v) Borrower and Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender's Rights and obligations under the Loan Documents, and (vi) such Lender shall be solely responsible for any withholding taxes or any filing or reporting requirements relating to such participation and shall hold Borrower and Administrative Agent and their respective successors, permitted assigns, officers, directors, employees, agents, and representatives harmless against the same. Participants shall have no Rights under the Loan Documents, other than certain voting Rights as provided below. Subject to the following, each Lender shall be entitled to obtain (on behalf of its Participants) the benefits of SECTION 4 with respect to all participations in its part of the Obligation outstanding from time to time, so long as Borrower shall not be obligated to pay any amount in excess of the amount that would be due to such Lender under SECTION 4 calculated as though no participations have been made. No Lender shall sell any participating interest under which the Participant shall have any Rights to approve any amendment, modification, or waiver of any Loan Document, except to the extent such amendment, modification, or waiver extends the due date for payment of any amount in respect of principal (other than mandatory prepayments), interest, or fees due under the Loan Documents, reduces the interest rate or the amount of principal or fees applicable to the Obligation (except such reductions as are contemplated by the Loan Documents), or releases all or any substantial portion of the Guaranties under the Loan Documents; provided that, in those cases where a Participant is entitled to the benefits of SECTION 4 or a Lender grants Rights to its Participants to approve amendments to or waivers of the Loan Documents respecting the matters previously described in this sentence, such Lender must include a voting mechanism in the relevant participation agreement or agreements, as the case may be, whereby a majority of such Lender's portion of the Obligation (whether held by such Lender or Participant) shall control the vote for all of such Lender's portion of the Obligation. Except in the case of the sale of a participating interest to another Lender, the relevant participation agreement shall not permit the Participant to transfer, pledge, assign, sell participations in, or otherwise encumber its portion of the Obligation, unless the consent of the transferring Lender (which consent will not be unreasonably withheld) has been obtained. NBPLP CREDIT AGREEMENT
(f) Notwithstanding any other provision set forth in this Agreement, any Lender may, without notice to, or the consent of Borrower or Administrative Agent, at any time assign and pledge all or any portion of its Borrowings and its Notes (to the extent any Principal Debt owed to such assigning Lender is evidenced by a Note or Notes) to any Federal Reserve Bank as collateral security pursuant to Regulation A and any Operating Circular issued by such Federal Reserve Bank or any Lender which is a fund may pledge all or any portion of its Borrowings and its Notes (to the extent any Principal Debt owed to such assigning Lender is evidenced by a Note or Notes) to its trustee in support of its obligations to its trustee. No such assignment shall release the assigning Lender from its obligations hereunder.
(g) Any Lender may furnish any information concerning the Loan Parties in the possession of such Lender from time to time to Eligible Assignees and Participants (including prospective Eligible Assignees and Participants), subject to the provisions of SECTION 14.14.):
Appears in 1 contract
Successors and Assigns; Assignments and Participations. (a) This Agreement shall be binding upon, and inure Subject to the benefit of the parties hereto and their respective successors and assigns, except that (iSections 12.2(c) Borrower may not, directly or indirectly, assign or transfer, or attempt to assign or transfer, any of its Rights, duties, or obligations under any Loan Documents without the express written consent of all Lenders, and (ii) except as permitted NBPLP CREDIT AGREEMENT under this Sectiond), no a Lender may transfer, pledge, assign, sell at any participation in, or otherwise encumber its portion of the Obligation.
(b) Each Lender may time assign to one or more Eligible Assignees all or a portion of its Rights rights and obligations under the Loan Documents (including, without limitation, delegate all or a portion of its Borrowings obligations under this Agreement and the other Loan Documents (including all its Notes rights and obligations with respect to the extent Loan) to one or more Persons other than the Borrower or any Principal Debt owed Affiliate of the Borrower (subject to the following proviso, each, a “Transferee”), provided, that unless an Event of Default has occurred and is continuing (in which event no such assigning restriction shall apply), no natural person, Non-Funding Lender or Affiliate of a Non-Funding Lender, direct competitor of Borrower or Holdings or any Person who is evidenced directly engaged in consumer lease financing to big box retail, or is controlled by a Person which is a direct competitor of Borrower or who is directly engaged in consumer lease financing to big box retail, shall constitute a Transferee hereunder and Borrower shall have a right to consent to any Transferee that is not an Approved Fund of a Lender (each such Person that is precluded from being a Transferee pursuant to this proviso, an “Ineligible Transferee”). Notwithstanding anything to the contrary in this Agreement, other than restrictions set forth in the definition of “Transferee”, there shall be no limitation or restriction on any Lender’s ability to assign, pledge or otherwise transfer any Note or Notes); provided, however, that:
(i) each such assignment shall be to an Eligible Assignee;
(ii) except in the case of an assignment to another Lender or in the case of an assignment of all of a Lender's Rights other Obligation. The Transferee and obligations under the Loan Documents, any such partial assignment under the Facility shall not be less than $5,000,000 unless Borrower and Administrative Agent consent thereto (in their sole discretion) in writing which may be evidenced by their acceptance and execution of the related Assignment and Acceptance Agreement; provided that, no partial assignment for the Facility (including any assignment among Lenders) may result in any Lender holding less than $10,000,000, provided further that, a Lender may hold an amount less than $10,000,000 but greater than $5,000,000 only if such Lender shall hold at least $10,000,000 in the aggregate of this Facility and the Multi- Year Revolving Agreement (notwithstanding the foregoing, in the event the Multi-Year Revolving Agreement is terminated, any Lender may continue to hold an amount in this Facility greater than or equal to the amount such Lender held on the date of the termination of the Multi-Year Revolving Agreement);
(iii) the parties to such assignment shall execute and deliver to Administrative Agent for its acceptance an Assignment and Acceptance Agreement recording in the form of EXHIBIT E heretoRegister, together with any Notes (to the extent any Principal Debt owed to such assigning a Lender is evidenced by a Note or Notes) subject to such assignment and a processing fee of $3,500, including, without limitation, any assignment between Lenders; and
(iv) so long as any Lender is an Agent under this Addition Agreement, such which shall be in form and substance reasonably acceptable to Agent in its Permitted Discretion (“Lender (or an Affiliate of such Lender) shall retain an economic interest in the Loan Documents, will not assign all of its Rights, duties, or obligations under the Loan Documents, except to an Affiliate of such Lender, and will not enter into any Assignment and Acceptance Agreement that would have the effect of such Lender assigning all of its Rights, duties, or obligations under the Loan Documents to any Person other than an Affiliate of such Lender unless such Agent has relinquished such title in accordance with SECTION 13.1 (with respect to Administrative Agent) or SECTION 13.10 (with respect to the other AgentsAddition Agreement”). Upon such execution, delivery, acceptance and acceptance of recording, from and after the effective date determined pursuant to such Assignment and Acceptance Lender Addition Agreement, (i) the assignee Transferee thereunder shall be a party hereto and, to the extent of provided in such assignmentLender Addition Agreement, have the obligationssame rights, Rights, benefits and benefits of obligations as it would if it were a Lender under the Loan Documents and the assigning Lender shall, to the extent of such assignment, relinquish its Rights and be released from its obligations under the Loan Documents. Upon the consummation of any assignment pursuant to this Section, but only upon the request of the assignor or assignee made through Administrative Agent, Borrower shall issue appropriate Notes to the assignor and the assignee, reflecting such Assignment and Acceptance. If the assignee is not incorporated under the laws of the United States of America or a state thereof, it shall deliver to Borrower and Administrative Agent certification as to exemption from deduction or withholding of Taxes in accordance with SECTION 4.6.
(c) Administrative Agent shall maintain at its address referred to in SECTION 14.3 a copy of each Assignment and Acceptance Agreement delivered to and accepted by it and a register for NBPLP CREDIT AGREEMENT the recordation of the names and addresses of the Lenders and the Commitment Percentage, and principal amount of the Borrowings owing to, each Lender from time to time (the "REGISTER"). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and Borrower, Administrative Agent and the Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of the Loan Documents. The Register shall be available for inspection by Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice. Upon the consummation of any assignment in accordance with this SECTION 14.13, SCHEDULE 2.1 shall automatically be deemed amended (to the extent required) by Administrative Agent to reflect the name, address, and, where appropriate, respective Committed Sums under the Facility (as the case may be) of the assignor and assignee.
(d) Upon its receipt of an Assignment and Acceptance Agreement executed by the parties thereto, together with any Notes (to the extent any Principal Debt owed to such assigning Lender is evidenced by a Note or Notes) subject to such assignment and payment of the processing fee, Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of EXHIBIT E hereto, (i) accept such Assignment and Acceptance Agreement, (ii) record the information contained therein in the Register, and (iii) give prompt notice thereof to the parties thereto.
(e) Subject to the provisions of this Section and in accordance with applicable Law, any Lender may, in the ordinary course of its commercial banking business and in accordance with applicable Law, at any time sell to one or more Persons (each a "PARTICIPANT") participating interests in its portion of the Obligation. In the event of any such sale to a Participant, (i) such Lender shall remain a "Lender" under the Loan Documents and the Participant shall not constitute a "Lender" hereunder, (ii) such Lender's obligations under the Loan Documents shall remain unchanged, (iii) such Lender shall remain solely responsible for the performance thereof, (iv) such Lender shall remain the holder of its share of the Principal Debt for all purposes under the Loan Documents, (v) Borrower and Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender's Rights and obligations under the Loan Documents, and (vi) such assigning Lender shall be solely responsible for any withholding taxes or any filing or reporting requirements relating to such participation and shall hold Borrower and Administrative Agent and their respective successors, permitted assigns, officers, directors, employees, agents, and representatives harmless against the same. Participants shall have no Rights under the Loan Documents, other than certain voting Rights as provided below. Subject to the following, each Lender shall be entitled to obtain (on behalf relieved of its Participants) the benefits of SECTION 4 obligations hereunder with respect to all participations in its part of the Obligation outstanding from time to time, so long as Borrower shall not be obligated to pay any amount in excess of the amount that would be due to such Lender under SECTION 4 calculated as though no participations have been made. No Lender shall sell any participating interest under which the Participant shall have any Rights to approve any amendment, modification, Advances or waiver of any Loan Document, except to the extent such amendment, modification, or waiver extends the due date for payment of any amount in respect of principal (other than mandatory prepayments), interest, or fees due under the Loan Documents, reduces the interest rate or the amount of principal or fees applicable to the Obligation (except such reductions as are contemplated by the Loan Documents), or releases all or any substantial assigned portion of the Guaranties under the Loan Documents; provided that, in those cases where a Participant is entitled to the benefits of SECTION 4 or a Lender grants Rights to its Participants to approve amendments to or waivers of the Loan Documents respecting the matters previously described in this sentence, such Lender must include a voting mechanism in the relevant participation agreement or agreementsthereof, as the case may be, whereby a majority of to the extent that such Lender's portion of obligations shall have been expressly assumed by the Obligation (whether held by Transferee pursuant to such Lender or Participant) shall control the vote for all of such Lender's portion of the Obligation. Except Addition Agreement (and, in the case of a Lender Addition Agreement covering all or the sale of a participating interest to another Lender, the relevant participation agreement shall not permit the Participant to transfer, pledge, assign, sell participations in, or otherwise encumber its remaining portion of the Obligation, unless the consent of the transferring Lender (which consent will not be unreasonably withheld) has been obtained. NBPLP CREDIT AGREEMENT
(f) Notwithstanding any other provision set forth in an assigning Lender’s rights and obligations under this Agreement, any Lender may, without notice to, or the consent of Borrower or Administrative Agent, at any time assign and pledge all or any portion of its Borrowings and its Notes (to the extent any Principal Debt owed to such assigning Lender is evidenced by shall cease to be a Note or Notes) party hereto but, with respect to any Federal Reserve Bank as collateral security pursuant matters occurring before such assignment, shall nevertheless continue to Regulation A and any Operating Circular issued by such Federal Reserve Bank or any Lender which is a fund may pledge all or any portion of its Borrowings and its Notes (be entitled to the extent any Principal Debt owed to such assigning Lender is evidenced by a Note or Notes) to its trustee in support benefits of its obligations to its trustee. No such assignment shall release the assigning Lender from its obligations hereunderSections 12.4 and 12.
(g) Any Lender may furnish any information concerning the Loan Parties in the possession of such Lender from time to time to Eligible Assignees and Participants (including prospective Eligible Assignees and Participants), subject to the provisions of SECTION 14.14.
Appears in 1 contract
Samples: Loan and Security Agreement (Katapult Holdings, Inc.)
Successors and Assigns; Assignments and Participations. (a) This Agreement shall be binding upon, and inure to the benefit of the parties hereto and their respective successors and assigns, except that EXCEPT THAT (i) Borrower may not, directly or indirectly, assign or transfer, or attempt to assign or transfer, any of its Rights, duties, or obligations under any Loan Documents without the express written consent of all Lenders, and (ii) except EXCEPT as permitted NBPLP CREDIT AGREEMENT under this Section, no Lender may transfer, pledge, assign, sell any participation in, or otherwise encumber its portion of the Obligation.
(b) Each Lender may assign to one or more Eligible Assignees all or a portion of its Rights and obligations under the Loan Documents (including, without limitation, all or a portion of its Borrowings and its Notes -- to the extent any Principal Debt owed to such assigning Lender is evidenced by a Note or Notes); providedPROVIDED, howeverHOWEVER, that:
(i) each such assignment shall be to an Eligible Assignee;
(ii) except in the case of an assignment to another Lender, an Affiliate of Lender or an Approved Fund of any Lender, or in the case of an assignment of all of a Lender's Rights and obligations under the Loan Documents, any such partial assignment under the any Facility or Discretionary Loan shall not be less than $5,000,000 the following amounts for the Facility or Discretionary Loan indicated (unless Borrower and Administrative Agent and, unless a Default or Potential Default has occurred and is continuing, Borrower consent thereto (in their sole discretion) in writing which may be evidenced by their acceptance and execution of the related Assignment and Acceptance Agreement): =============================================================================== FACILITY/ DISCRETIONARY LOAN MINIMUM ASSIGNMENT =============================================================================== Revolver Facility $2,500,000 (inclusive of any concurrent assignments under the Term Loan A Facility, the Term Loan B Facility, any Discretionary Revolver Loans, any Discretionary Term A Loans, or any Discretionary Term B Loans by the assigning Lender to the same assignee) ------------------------------------------------------------------------------- Discretionary Revolver Loans $2,500,000 (inclusive of any concurrent assignments under the Revolver Facility, the Term Loan A Facility, the Term Loan B Facility, any Discretionary Term A Loans, or any Discretionary Term B Loans by the assigning Lender to the same assignee) ----------------------------- ------------------------------------------------ Term Loan A Facility $2,500,000 (inclusive of any concurrent assignments under the Revolver Facility, the Term Loan B Facility, any Discretionary Revolver Loans, any Discretionary Term A Loans, or any Discretionary Term B Loans by the assigning Lender to the same assignee) ----------------------------- ------------------------------------------------ Discretionary Term A Loans $2,500,000 (inclusive of any concurrent assignments under the Revolver Facility, the Term Loan A Facility, the Term Loan B Facility, any Discretionary Revolver Loans, or any Discretionary Term B Loans by the assigning Lender to the same assignee) ----------------------------- ------------------------------------------------ Term Loan B Facility $1,000,000 ----------------------------- ------------------------------------------------ Discretionary Term B Loans $1,000,000 ============================= ================================================ ; provided thatPROVIDED THAT, no partial assignment for the any Facility or Discretionary Loan (including any assignment among Lenders) may result in any Lender holding less than $10,000,000, provided further that, a Lender may hold an amount less than $10,000,000 but greater than $5,000,000 only if such Lender shall hold at least $10,000,000 500,000 in the aggregate of this any Facility and the Multi- Year Revolving Agreement (notwithstanding the foregoing, in the event the Multi-Year Revolving Agreement is terminated, any Lender may continue to hold an amount in this Facility greater than or equal to the amount such Lender held on the date of the termination of the Multi-Year Revolving Agreement)Discretionary Loan;
(iii) each such assignment by a Lender shall be of a proportionate part of all of the assigning Lender's Rights and obligations under this Agreement and the Notes (to the extent any Principal Debt owed to such assigning Lender is evidenced by a Note or Notes), except that this CLAUSE (iii) shall not be construed to prohibit the assignment of
(iv) the parties to such assignment shall execute and deliver to Administrative Agent for its acceptance an Assignment and Acceptance Agreement substantially in the form of EXHIBIT E F hereto, together with any Notes (to the extent any Principal Debt owed to such assigning Lender is evidenced by a Note or Notes) subject to such assignment and a processing fee of $3,500, including, without limitation, any assignment between Lenders; and
(ivv) so long as any Lender is an Agent (OTHER THAN a Co-Agent or a Managing Agent) under this Agreement, such Lender (or an Affiliate of such Lender) shall retain an economic interest in the Loan Documents, will not assign all of its Rights, duties, or obligations under the Loan Documents, except to an Affiliate of such Lender, and will not enter into any Assignment and Acceptance Agreement that would have the effect of such Lender assigning all of its Rights, duties, or obligations under the Loan Documents to any Person other than an Affiliate of such Lender unless such Agent has relinquished such title in accordance with SECTION 13.1 12.1 (with respect to Administrative Agent) or SECTION 13.10 12.10 (with respect to the other Agents). Upon execution, delivery, and acceptance of such Assignment and Acceptance Agreement, the assignee thereunder shall be a party hereto and, to the extent of such assignment, have the obligations, Rights, and benefits of a Lender under the Loan Documents and the assigning Lender shall, to the extent of such assignment, relinquish its Rights and be released from its obligations under the Loan Documents. Upon the consummation of any assignment pursuant to this Section, but only upon the request of the assignor or assignee made through Administrative Agent, Borrower shall issue appropriate Notes to the assignor and the assignee, reflecting such Assignment and Acceptance. If the assignee is not incorporated under the laws of the United States of America or a state thereof, it shall deliver to Borrower and Administrative Agent certification as to exemption from deduction or withholding of Taxes in accordance with SECTION 4.6.
(c) Administrative Agent (acting solely for this administrative purpose as an agent for Borrower) shall maintain at its address referred to in SECTION 14.3 13.3 a copy of each Assignment and Acceptance Agreement delivered to and accepted by it and a register for NBPLP CREDIT AGREEMENT the recordation of the names and addresses of the Lenders and the Commitment Percentage, and principal amount of the Borrowings owing to, each Lender from time to time (the "REGISTER"). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and Borrower, Administrative Agent and the Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of the Loan Documents. The Register shall be available for inspection by Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice. Upon the consummation of any assignment in accordance with this SECTION 14.1313.13, SCHEDULE 2.1 shall automatically be deemed amended (to the extent required) by Administrative Agent to reflect the name, address, and, where appropriate, the respective Committed Sums under the Facilities and Discretionary Facility (as the case may be) of the assignor and assignee.
(d) Upon its receipt of an Assignment and Acceptance Agreement executed by the parties thereto, together with any Notes (to the extent any Principal Debt owed to such assigning Lender is evidenced by a Note or Notes) subject to such assignment and payment of the processing fee, Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of EXHIBIT E F hereto, (i) accept such Assignment and Acceptance Agreement, (ii) record the information contained therein in the Register, and (iii) give prompt notice thereof to the parties thereto.
(e) Subject to the provisions of this Section and in accordance with applicable Law, any Lender may, in the ordinary course of its commercial banking business and in accordance with applicable Law, at any time sell to one or more Persons (OTHER THAN Borrower or any Affiliate of Borrower) (each a "PARTICIPANT") participating interests in its portion of the Obligation. In the event of any such sale to a Participant, (i) such Lender shall remain a "LenderLENDER" under the Loan Documents and the Participant shall not constitute a "LenderLENDER" hereunder, (ii) such Lender's obligations under the Loan Documents shall remain unchanged, (iii) such Lender shall remain solely responsible for the performance thereof, (iv) such Lender shall remain the holder of its share of the Principal Debt for all purposes under the Loan Documents, (v) Borrower and Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender's Rights and obligations under the Loan Documents, and (vi) such Lender shall be solely responsible for any withholding taxes Taxes or any filing or reporting requirements relating to such participation and shall hold Borrower and Administrative Agent and their respective successors, permitted assigns, officers, directors, employees, agents, and representatives harmless against the same. Participants shall have no Rights under the Loan Documents, other than certain voting Rights as provided below. Subject to the following, each Lender shall be entitled to obtain (on behalf of its Participants) the benefits of SECTION 4 with respect to all participations in its part of the Obligation outstanding from time to time, so long as SO LONG AS Borrower shall not be obligated to pay any amount in excess of the amount that would be due to such Lender under SECTION 4 calculated as though no participations have been made. No Lender shall sell any participating interest under which the Participant shall have any Rights to approve any amendment, modification, or waiver of any Loan Document, except to the extent such amendment, modification, or waiver extends the due date for payment of any amount in respect of principal (other than OTHER THAN mandatory prepayments), interest, or fees due under the Loan Documents, reduces the interest rate or the amount of principal or fees applicable to the Obligation (except EXCEPT such reductions as are contemplated by the Loan Documents), or releases all or any substantial portion of the Guaranties or all or any substantial portion of the Collateral for the Obligation under the Loan DocumentsDocuments (EXCEPT such releases of Guaranties or Collateral as are contemplated in SECTION 6.5); provided thatPROVIDED THAT, in those cases where a Participant is entitled to the benefits of SECTION 4 or a Lender grants Rights to its Participants to approve amendments to or waivers of the Loan Documents respecting the matters previously described in this sentence, such Lender must include a voting mechanism in the relevant participation agreement or agreements, as the case may be, whereby a majority of such Lender's portion of the Obligation (whether held by such Lender or Participant) shall control the vote for all of such Lender's portion of the Obligation. Except in the case of the sale of a participating interest to another Lender, the relevant participation agreement shall not permit the Participant to transfer, pledge, assign, sell participations in, or otherwise encumber its portion of the Obligation, unless the consent of the transferring Lender (which consent will not be unreasonably withheld) has been obtained. NBPLP CREDIT AGREEMENT.
(f) Notwithstanding any other provision set forth in this Agreement, any Lender may, without notice to, or the consent of Borrower or Administrative Agent, at any time assign and pledge all or any portion of its Borrowings and its Notes (to the extent any Principal Debt owed to such assigning Lender is evidenced by a Note or Notes) to any Federal Reserve Bank as collateral security pursuant to Regulation REGULATION A and any Operating Circular issued by such Federal Reserve Bank or any Lender which is a fund may pledge all or any portion of its Borrowings and its Notes (to the extent any Principal Debt owed to such assigning Lender is evidenced by a Note or Notes) to its any trustee in support or to any other representative of its holders of obligations owed or securities issued by such fund as security for such obligations or securities; provided that any transfer to its trustee. No such assignment shall release any Person upon the assigning Lender from its obligations hereunder.
(g) Any Lender may furnish any information concerning the Loan Parties in the possession enforcement of such Lender from time to time to Eligible Assignees and Participants (including prospective Eligible Assignees and Participants), pledge or security interest may only be made subject to the provisions of this SECTION 14.1413.
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (Dobson Communications Corp)
Successors and Assigns; Assignments and Participations. (a) This Facility A Agreement shall be binding upon, and inure to the benefit of the parties hereto and their respective successors and assigns, except that (i) Borrower may not, directly or indirectly, assign or transfer, or attempt to assign or transfer, any of its Rights, duties, duties or obligations under any Loan Documents Papers without the express written consent of all Lenders, and (ii) except as permitted NBPLP CREDIT AGREEMENT under this Section, no Facility A Lender may transfer, pledge, assign, sell any participation in, or otherwise encumber its portion of the Obligation.
(b) Each Facility A Lender may assign to one or more Eligible Assignees all or a portion of its Rights and obligations under this Facility A Agreement and the other Facility A Loan Documents Papers (including, without limitation, all or a portion of its Borrowings and Borrowings, its Notes [to the extent any such Facility A Principal Debt owed to such assigning Facility A Lender is evidenced by a Note or Notes]); provided, however, that:
(i) each such assignment shall be to an Eligible Assignee;
(ii) except in the case of an assignment to another Facility A Lender or in the case of an assignment of all of a Facility A Lender's Rights and obligations under this Facility A Agreement and the other Facility A Loan DocumentsPapers, any such partial assignment shall be in an amount at least equal to $10,000,000;
(iii) each such assignment by a Facility A Lender shall be of a constant, and not varying, percentage of all of its Rights and obligations under this Facility A Agreement and the Notes (to the extent the Facility shall not be less than $5,000,000 unless Borrower and Administrative Agent consent thereto (in their sole discretion) in writing which may be A Principal Debt owed to the assigning Facility A Lender is evidenced by their acceptance and execution of the related Assignment and Acceptance Agreement; provided that, no partial assignment for the Facility (including any assignment among Lenders) may result in any Lender holding less than $10,000,000, provided further that, a Lender may hold an amount less than $10,000,000 but greater than $5,000,000 only if such Lender shall hold at least $10,000,000 in the aggregate of this Facility and the Multi- Year Revolving Agreement (notwithstanding the foregoing, in the event the Multi-Year Revolving Agreement is terminated, any Lender may continue to hold an amount in this Facility greater than or equal to the amount such Lender held on the date of the termination of the Multi-Year Revolving AgreementNotes);
(iiiiv) each such assignment shall exclude Competitive Borrowings, unless the assigning Facility A Lender is selling all of its Rights and obligations under the Facility A Loan Papers; and
(v) the parties to such assignment shall execute and deliver to the Administrative Agent for its acceptance an Assignment and Acceptance Agreement in the form of EXHIBIT E hereto, together with any Notes subject to such assignment (to the extent any the Facility A Principal Debt owed to such the assigning Facility A Lender is evidenced by a Note or any Notes) subject to such assignment and a processing fee of $3,500, including, without limitation, any assignment between Lenders; and
(iv) so long as any Lender is an Agent under this Agreement, such Lender (or an Affiliate of such Lender) shall retain an economic interest in the Loan Documents, will not assign all of its Rights, duties, or obligations under the Loan Documents, except to an Affiliate of such Lender, and will not enter into any Assignment and Acceptance Agreement that would have the effect of such Lender assigning all of its Rights, duties, or obligations under the Loan Documents to any Person other than an Affiliate of such Lender unless such Agent has relinquished such title in accordance with SECTION 13.1 (with respect to Administrative Agent) or SECTION 13.10 (with respect to the other Agents). Upon execution, delivery, and acceptance of such Assignment and Acceptance Agreement, the assignee thereunder shall be a party hereto and, to the extent of such assignment, have the obligations, Rights, and benefits of a Facility A Lender under the Facility A Loan Documents Papers and the assigning Facility A Lender shall, to the extent of such assignment, relinquish its Rights rights and be released from its obligations under the Facility A Loan DocumentsPapers. Upon the consummation of any assignment pursuant to this Section, but only upon the request of the assignor or assignee made through Administrative Agent, Borrower shall issue appropriate Notes to the assignor and the assignee, reflecting such Assignment and Acceptance. If the assignee is not incorporated under the laws of the United States of America or a state thereof, it shall deliver to Borrower and Administrative Agent certification as to exemption from deduction or withholding of Taxes in accordance with SECTION 4.610.9.
(c) The Administrative Agent shall maintain at its address referred to in SECTION 14.3 11.3 a copy of each Assignment and Acceptance Agreement delivered to and accepted by it and a register for NBPLP CREDIT AGREEMENT the recordation of the names and addresses of the Facility A Lenders and the Commitment PercentageFacility A Commitment, and principal amount of the Borrowings owing to, each Facility A Lender from time to time (the "REGISTER"). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and Borrower, Administrative Agent and the Facility A Lenders may treat each Person whose name is recorded in the Register as a Facility A Lender hereunder for all purposes of the Facility A Loan DocumentsPapers. The Register shall be available for inspection by Borrower or any Facility A Lender at any reasonable time and from time to time upon reasonable prior notice. Upon the consummation of any assignment in accordance with this SECTION 14.1311.14, SCHEDULE 2.1 shall automatically be deemed amended (to the extent required) by Administrative Agent to reflect the name, address, and, where appropriate, and respective Facility A Committed Sums under the Facility (as the case may be) of the assignor and assignee.
(d) Upon its receipt of an Assignment and Acceptance Agreement executed by the parties thereto, together with any Notes subject to such assignment (to the extent any the Facility A Principal Debt owed to such the assigning Facility A Lender is evidenced by a Note or any Notes) subject to such assignment and payment of the processing fee, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of EXHIBIT E hereto, (i) accept such Assignment and Acceptance Agreement, (ii) record the information contained therein in the Register, Register and (iii) give prompt notice thereof to the parties thereto.
(e) Subject to the provisions of this Section section and in accordance with applicable Law, any Facility A Lender may, in the ordinary course of its commercial banking business and in accordance with applicable Law, at any time sell to one or more Persons (each a "PARTICIPANT") participating interests in its portion of the Obligation. Obligation under Facility A. In the event of any such sale to a Participant, (i) such Facility A Lender shall remain a "Facility A Lender" under the Loan Documents this Facility A Agreement and the Participant shall not constitute a "Facility A Lender" hereunder, (ii) such Facility A Lender's obligations under the Loan Documents this Facility A Agreement shall remain unchanged, (iii) such Facility A Lender shall remain solely responsible for the performance thereof, (iv) such Facility A Lender shall remain the holder of its share of the Facility A Principal Debt for all purposes under the Loan Documentsthis Facility A Agreement, (v) Borrower and Administrative Agent shall continue to deal solely and directly with such Facility A Lender in connection with such Facility A Lender's Rights and obligations under the Facility A Loan DocumentsPapers, and (vi) such Facility A Lender shall be solely responsible for any withholding taxes or any filing or reporting requirements relating to such participation and shall hold Borrower and Administrative Agent and their respective successors, permitted assigns, officers, directors, employees, agents, and representatives harmless against the same. Participants shall have no Rights under the Facility A Loan DocumentsPapers, other than certain voting Rights as provided below. Subject to the following, each Facility A Lender shall be entitled to obtain (on behalf of its Participants) the benefits of SECTION 4 3 with respect to all participations in its part of the Obligation under Facility A outstanding from time to time, time so long as Borrower shall not be obligated to pay any amount in excess of the amount that would be due to such Facility A Lender under SECTION 4 3 calculated as though no participations have been made. No Facility A Lender shall sell any participating interest under which the Participant shall have any Rights to approve any amendment, modification, or waiver of any Facility A Loan DocumentPaper, except to the extent such amendment, modification, or waiver extends the due date for payment of any amount in respect of principal (other than mandatory prepayments), interest, or fees due under the Facility A Loan DocumentsPapers, reduces the interest rate or the amount of principal or fees applicable to the Obligation under Facility A (except such reductions as are contemplated by the Loan Documentsthis Facility A Agreement), or releases all any guaranty or any substantial portion of collateral, if any, for the Guaranties Obligation under the Loan DocumentsFacility A (except such releases as are contemplated by this Facility A Agreement); provided that, that in those cases where a Participant is entitled to the benefits of SECTION 4 3 or a Facility A Lender grants Rights to its Participants to approve amendments to or waivers of the Loan Documents respecting the matters previously described in this sentence, such Lender must include a voting mechanism in the relevant participation agreement or agreements, as the case may be, whereby a majority of such Lender's portion of the Obligation (whether held by such Lender or Participant) shall control the vote for all of such Lender's portion of the Obligation. Except in the case of the sale of a participating interest to another Lender, the relevant participation agreement shall not permit the Participant to transfer, pledge, assign, sell participations in, or otherwise encumber its portion of the Obligation, unless the consent of the transferring Lender (which consent will not be unreasonably withheld) has been obtained. NBPLP CREDIT AGREEMENT
(f) Notwithstanding any other provision set forth in this Agreement, any Lender may, without notice to, or the consent of Borrower or Administrative Agent, at any time assign and pledge all or any portion of its Borrowings and its Notes (to the extent any Principal Debt owed to such assigning Lender is evidenced by a Note or Notes) to any Federal Reserve Bank as collateral security pursuant to Regulation A and any Operating Circular issued by such Federal Reserve Bank or any Lender which is a fund may pledge all or any portion of its Borrowings and its Notes (to the extent any Principal Debt owed to such assigning Lender is evidenced by a Note or Notes) to its trustee in support of its obligations to its trustee. No such assignment shall release the assigning Lender from its obligations hereunder.
(g) Any Lender may furnish any information concerning the Loan Parties in the possession of such Lender from time to time to Eligible Assignees and Participants (including prospective Eligible Assignees and Participants), subject to the provisions of SECTION 14.14.
Appears in 1 contract
Successors and Assigns; Assignments and Participations. (a) This The provisions of this Agreement shall be binding upon, upon and inure to the benefit of the parties hereto and their respective successors and assignsassigns permitted hereby, except that Borrower may not assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of each Lender and no Lender may assign or otherwise transfer any of its rights or obligations hereunder except (i) Borrower may notto an Eligible Assignee in accordance with the provisions of SECTION 13.13(b), directly or indirectly, assign or transfer, or attempt to assign or transfer, any of its Rights, duties, or obligations under any Loan Documents without the express written consent of all Lenders, and (ii) except as permitted NBPLP CREDIT AGREEMENT under this Section, no Lender may transfer, pledge, assign, sell any by way of participation inin accordance with the provisions of SECTION 13.13(d), or otherwise encumber its portion (iii) by way of pledge or assignment of a security interest subject to the Obligationrestrictions of SECTION 13.13(f). Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby, Participants to the extent provided in SECTION 13.13(d) and, to the extent expressly contemplated hereby, the Indemnitees) any legal or equitable right, remedy or claim under or by reason of this Agreement.
(b) Each Any Lender may at any time assign to one or more Eligible Assignees all or a portion of its Rights rights and obligations under the Loan Documents this Agreement (including, without limitation, including all or a portion of its Commitment and outstanding Borrowings and its Notes at the time owing to the extent any Principal Debt owed to such assigning Lender is evidenced by a Note or Notesit); provided, however, provided that:
(i) each such assignment shall be to an Eligible Assignee;
(ii) except in the case of an assignment of the entire remaining amount of the assigning Lender's Commitment and outstanding Borrowings at the time owing to another Lender it or in the case of an assignment of all to a Lender or an Affiliate of a Lender or an Approved Fund (as defined in SECTION 13.13(g)) with respect to a Lender's Rights , the aggregate amount of the Commitment (which for this purpose includes Borrowings outstanding thereunder) subject to each such assignment, determined as of the date the Assignment and obligations under Assumption with respect to such assignment is delivered to Administrative Agent or, if "Trade Date" is specified in the Loan DocumentsAssignment and Assumption, any such partial assignment under as of the Facility Trade Date, shall not be less than $5,000,000 unless Borrower or a whole multiple of $500,000 in excess thereof, and Administrative Agent consent thereto (in their sole discretion) in writing which may be evidenced by their acceptance and execution of the related Assignment and Acceptance Agreement; provided thatafter such assignment, no partial assignment for the Facility (including any assignment among Lenders) may result in any Lender holding shall hold a Commitment of less than $10,000,0005,000,000 unless each of Administrative Agent and, provided further thatso long as no Event of Default has occurred and is continuing, Borrower otherwise consents (each such consent not to be unreasonably withheld or delayed); (ii) each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender's rights and obligations under this Agreement with respect to the Borrowings or the Commitment assigned; (iii) any assignment of a Commitment must be approved by Administrative Agent (which approval shall not be unreasonably withheld) unless the Person that is the proposed assignee is itself a Lender may hold (whether or not the proposed assignee would otherwise qualify as an amount less than $10,000,000 but greater than $5,000,000 only if such Lender shall hold at least $10,000,000 in the aggregate of this Facility Eligible Assignee); and the Multi- Year Revolving Agreement (notwithstanding the foregoing, in the event the Multi-Year Revolving Agreement is terminated, any Lender may continue to hold an amount in this Facility greater than or equal to the amount such Lender held on the date of the termination of the Multi-Year Revolving Agreement);
(iiiiv) the parties to such each assignment shall execute and deliver to Administrative Agent for its acceptance an Assignment and Acceptance Agreement in the form of EXHIBIT E heretoAssumption, together with any Notes (to the extent any Principal Debt owed to such assigning Lender is evidenced by a Note or Notes) subject to such assignment and a processing fee of $3,500, including, without limitation, any assignment between Lenders; and
(iv) so long as any Lender is an Agent under this Agreement, such Lender (or an Affiliate of such Lender) shall retain an economic interest in the Loan Documents, will not assign all of its Rights, duties, or obligations under the Loan Documents, except to an Affiliate of such Lender, and will not enter into any Assignment and Acceptance Agreement that would have the effect of such Lender assigning all of its Rights, duties, or obligations under the Loan Documents to any Person other than an Affiliate of such Lender unless such Agent has relinquished such title in accordance with SECTION 13.1 (with respect to Administrative Agent) or SECTION 13.10 (with respect to the other Agents). Upon execution, delivery, and acceptance of such Assignment and Acceptance Agreement, the assignee thereunder shall be a party hereto and, to the extent of such assignment, have the obligations, Rights, and benefits of a Lender under the Loan Documents and the assigning Lender shall, to the extent of such assignment, relinquish its Rights and be released from its obligations under the Loan Documents. Upon the consummation of any assignment pursuant to this Section, but only upon the request of the assignor or assignee made through Administrative Agent, Borrower shall issue appropriate Notes to the assignor and the assignee, reflecting such Assignment and Acceptance. If the assignee is not incorporated under the laws of the United States of America or a state thereof, it shall deliver to Borrower and Administrative Agent certification as to exemption from deduction or withholding of Taxes in accordance with SECTION 4.6.
(c) Administrative Agent shall maintain at its address referred to in SECTION 14.3 a copy of each Assignment and Acceptance Agreement delivered to and accepted by it and a register for NBPLP CREDIT AGREEMENT the recordation of the names and addresses of the Lenders and the Commitment Percentage, and principal amount of the Borrowings owing to, each Lender from time to time (the "REGISTER"). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and Borrower, Administrative Agent and the Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of the Loan Documents. The Register shall be available for inspection by Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice. Upon the consummation of any assignment in accordance with this SECTION 14.13, SCHEDULE 2.1 shall automatically be deemed amended (to the extent required) by Administrative Agent to reflect the name, address, and, where appropriate, respective Committed Sums under the Facility (as the case may be) of the assignor and assignee.
(d) Upon its receipt of an Assignment and Acceptance Agreement executed by the parties thereto, together with any Notes (to the extent any Principal Debt owed to such assigning Lender is evidenced by a Note or Notes) subject to such assignment and payment of the processing fee, Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of EXHIBIT E hereto, (i) accept such Assignment and Acceptance Agreement, (ii) record the information contained therein in the Register, and (iii) give prompt notice thereof to the parties thereto.
(e) Subject to the provisions of this Section and in accordance with applicable Law, any Lender may, in the ordinary course of its commercial banking business and in accordance with applicable Law, at any time sell to one or more Persons (each a "PARTICIPANT") participating interests in its portion of the Obligation. In the event of any such sale to a Participant, (i) such Lender shall remain a "Lender" under the Loan Documents and the Participant shall not constitute a "Lender" hereunder, (ii) such Lender's obligations under the Loan Documents shall remain unchanged, (iii) such Lender shall remain solely responsible for the performance thereof, (iv) such Lender shall remain the holder of its share of the Principal Debt for all purposes under the Loan Documents, (v) Borrower and Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender's Rights and obligations under the Loan Documents, and (vi) such Lender shall be solely responsible for any withholding taxes or any filing or reporting requirements relating to such participation and shall hold Borrower and Administrative Agent and their respective successors, permitted assigns, officers, directors, employees, agents, and representatives harmless against the same. Participants shall have no Rights under the Loan Documents, other than certain voting Rights as provided below. Subject to the following, each Lender shall be entitled to obtain (on behalf of its Participants) the benefits of SECTION 4 with respect to all participations in its part of the Obligation outstanding from time to time, so long as Borrower shall not be obligated to pay any amount in excess of the amount that would be due to such Lender under SECTION 4 calculated as though no participations have been made. No Lender shall sell any participating interest under which the Participant shall have any Rights to approve any amendment, modification, or waiver of any Loan Document, except to the extent such amendment, modification, or waiver extends the due date for payment of any amount in respect of principal (other than mandatory prepayments), interest, or fees due under the Loan Documents, reduces the interest rate or the amount of principal or fees applicable to the Obligation (except such reductions as are contemplated by the Loan Documents), or releases all or any substantial portion of the Guaranties under the Loan Documents; provided that, in those cases where a Participant is entitled to the benefits of SECTION 4 or a Lender grants Rights to its Participants to approve amendments to or waivers of the Loan Documents respecting the matters previously described in this sentence, such Lender must include a voting mechanism in the relevant participation agreement or agreements, as the case may be, whereby a majority of such Lender's portion of the Obligation (whether held by such Lender or Participant) shall control the vote for all of such Lender's portion of the Obligation. Except in the case of the sale of a participating interest to another Lender, the relevant participation agreement shall not permit the Participant to transfer, pledge, assign, sell participations in, or otherwise encumber its portion of the Obligation, unless the consent of the transferring Lender (which consent will not be unreasonably withheld) has been obtained. NBPLP CREDIT AGREEMENT
(f) Notwithstanding any other provision set forth in this Agreement, any Lender may, without notice to, or the consent of Borrower or Administrative Agent, at any time assign and pledge all or any portion of its Borrowings and its Notes (to the extent any Principal Debt owed to such assigning Lender is evidenced by a Note or Notes) to any Federal Reserve Bank as collateral security pursuant to Regulation A and any Operating Circular issued by such Federal Reserve Bank or any Lender which is a fund may pledge all or any portion of its Borrowings and its Notes (to the extent any Principal Debt owed to such assigning Lender is evidenced by a Note or Notes) to its trustee in support of its obligations to its trustee. No such assignment shall release the assigning Lender from its obligations hereunder.
(g) Any Lender may furnish any information concerning the Loan Parties in the possession of such Lender from time to time to Eligible Assignees and Participants (including prospective Eligible Assignees and Participants), subject to the provisions of SECTION 14.14.
Appears in 1 contract
Samples: Credit Agreement (Centex Corp)
Successors and Assigns; Assignments and Participations. (a) This Agreement shall be binding upon, and inure to the benefit Whenever any of the parties hereto and their respective to this Agreement is referred to in this Agreement, such reference shall be deemed to include the successors and assignsassigns of such party; provided, except however, that (i) Borrower neither of the Borrowers may not, directly or indirectly, assign or transfer, or attempt to assign or transfer, transfer any of its Rights, duties, rights or obligations under any Loan Documents this Agreement or under the Revolving Notes without the express prior written consent of all Lenders, and (ii) except as permitted NBPLP CREDIT AGREEMENT under this Section, no Lender may transfer, pledge, assign, sell any participation in, or otherwise encumber its portion of the ObligationLenders and the Administrative Agent.
(b) Each From time to time following the Closing Date, each Lender may assign to one or more Eligible Assignees all or a any portion of its Rights and obligations under the Loan Documents (including, without limitation, all or a portion of its Borrowings and its Notes to the extent any Principal Debt owed to such assigning Lender is evidenced by a Note or Notes)Commitment and/or Revolving Loans; provided, however, that:
that (i) each such assignment assignment, if not to a Lender or an Affiliate of the assigning Lender, shall be consented to an Eligible Assignee;
by Trendwest at all times other than during the existence of a Default or Event of Default and by the Administrative Agent, Issuing Lender, and the Australian Lender (which approval of Trendwest shall not be unreasonably withheld or delayed), (ii) a copy of a duly signed and completed Assignment and Acceptance shall be delivered to the Administrative Agent, (iii) except in the case of an assignment (A) to an Affiliate of the assigning Lender or to another Lender or in (B) of the case entire remaining Commitment of an assignment the assigning Lender, the portion of all of a Lender's Rights and obligations under the Loan Documents, any such partial assignment under the Facility Commitment assigned shall not be less than $5,000,000 unless Borrower 5,000,000, and (iv) the effective date of any such assignment shall be as specified in the Assignment and Acceptance, but not earlier than the date that is five Banking Days after the date on which the Administrative Agent has received the Assignment and Acceptance. Upon obtaining any consent thereto (required as set forth in their sole discretion) in writing which may be evidenced the prior sentence, any forms required by their acceptance Section 11.8 and execution payment of the related requisite fee described below, the assignee named in the Assignment and Acceptance Agreement; provided that, no partial assignment for the Facility (including any assignment among Lenders) may result in any Lender holding less than $10,000,000, provided further that, shall be a Lender may hold an amount less than $10,000,000 but greater than $5,000,000 only if such Lender shall hold at least $10,000,000 in the aggregate for all purposes of this Facility and the Multi- Year Revolving Agreement (notwithstanding the foregoing, in the event the Multi-Year Revolving Agreement is terminated, any Lender may continue to hold an amount in this Facility greater than or equal to the amount such Lender held on the date of the termination of the Multi-Year Revolving Agreement);
(iii) the parties to such assignment shall execute and deliver to Administrative Agent for its acceptance an Assignment and Acceptance Agreement in the form of EXHIBIT E hereto, together with any Notes (to the extent any Principal Debt owed to such assigning Lender is evidenced by a Note or Notes) subject to such assignment and a processing fee of $3,500, including, without limitation, any assignment between Lenders; and
the Assigned Interest (iv) so long as any Lender is an Agent under this Agreement, such Lender (or an Affiliate of such Lender) shall retain an economic interest defined in the Loan Documents, will not assign all of its Rights, duties, or obligations under the Loan Documents, except to an Affiliate of such Lender, and will not enter into any Assignment and Acceptance Agreement that would have the effect of such Lender assigning all of its Rights, duties, or obligations under the Loan Documents to any Person other than an Affiliate of such Lender unless such Agent has relinquished such title in accordance with SECTION 13.1 (with respect to Administrative Agent) or SECTION 13.10 (with respect to the other Agents). Upon execution, delivery, and acceptance of such Assignment and Acceptance AgreementAcceptance), and the assignee thereunder assigning Lender shall be a party hereto and, released from any further obligations under this Agreement to the extent of such assignmentAssigned Interest. Upon request, have the obligationsBorrowers shall execute and deliver new or replacement Revolving Notes to the assigning Lender and the assignee Lender to evidence Revolving Loans made by them. The Administrative Agent's consent to any assignment shall not be deemed to constitute any representation or warranty by any Indemnified Person as to any matter. For purposes of this Agreement, Rights, and benefits each mutual fund that is an Affiliate of a Lender under shall be deemed to be a single Eligible Assignee, whether or not such fund is managed by the Loan Documents and the assigning Lender shall, to the extent of such assignment, relinquish its Rights and be released from its obligations under the Loan Documents. Upon the consummation of any assignment pursuant to this Section, but only upon the request same fund manager as other mutual funds that are Affiliates of the assignor or assignee made through Administrative Agent, Borrower shall issue appropriate Notes to the assignor and the assignee, reflecting such Assignment and Acceptance. If the assignee is not incorporated under the laws of the United States of America or a state thereof, it shall deliver to Borrower and Administrative Agent certification as to exemption from deduction or withholding of Taxes in accordance with SECTION 4.6same Lender.
(c) After receipt of a completed Assignment and Acceptance, and receipt of an assignment fee of $3,500 from such Eligible Assignee and/or such assigning Lender (including in the case of assignments to Affiliates of assigning Lenders), the Administrative Agent shall maintain at its address referred to in SECTION 14.3 a copy of each Assignment and Acceptance Agreement delivered to and accepted by it and a register for NBPLP CREDIT AGREEMENT shall, promptly following the recordation of the names and addresses of the Lenders and the Commitment Percentageeffective date thereof, and principal amount of the Borrowings owing to, each Lender from time to time (the "REGISTER"). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and Borrower, Administrative Agent and the Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of the Loan Documents. The Register shall be available for inspection by Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice. Upon the consummation of any assignment in accordance with this SECTION 14.13, SCHEDULE 2.1 shall automatically be deemed amended (provide to the extent required) by Administrative Agent to reflect the name, address, and, where appropriate, respective Committed Sums under the Facility (as the case may be) of the assignor Borrowers and assigneeLenders a revised Schedule I giving effect thereto.
(d) Upon its receipt Each Lender may from time to time, without the consent of an Assignment and Acceptance Agreement executed by the parties theretoany other Person, together with any Notes (to the extent any Principal Debt owed to such assigning Lender is evidenced by a Note or Notes) subject to such assignment and payment of the processing fee, Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of EXHIBIT E hereto, (i) accept such Assignment and Acceptance Agreement, (ii) record the information contained therein in the Register, and (iii) give prompt notice thereof to the parties thereto.
(e) Subject to the provisions of this Section and in accordance with applicable Law, any Lender may, in the ordinary course of its commercial banking business and in accordance with applicable Law, at any time sell grant participations to one or more Persons other Person (each a "PARTICIPANT"including another Lender) participating interests in its all or any portion of its Ratable Share of the Obligation. In the event of any such sale to a ParticipantRevolving Loans and/or Aggregate Commitment; provided, however, that (i) such Lender shall remain a "Lender" under the Loan Documents and the Participant shall not constitute a "Lender" hereunder, (ii) such Lender's obligations under the Loan Documents this Agreement shall remain unchanged, (iiiii) such Lender shall remain solely responsible to the other parties to this Agreement for the performance thereofof such obligations, (iii) the participating banks or other financial institutions shall not be a Lender under this Agreement for any purpose except, if the participation agreement so provides, for the purposes of Sections 2.3 through 2.10 (but only to the extent that the cost of such benefits to the Borrowers does not exceed the cost that the Borrowers would have incurred in respect of such Lender absent the participation) and subject to Sections 10.11 and 11.6, (iv) such Lender shall remain the holder of its share of Borrowers, the Principal Debt for all purposes under the Loan Documents, (v) Borrower and Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender's Rights rights and obligations under this Agreement, (v) the Loan Documentsparticipation agreement shall not restrict an increase in the Aggregate Commitment or in the granting Lender's Commitment or Ratable Share, so long as the amount of the participation interest is not increased, and (vi) the consent of the holder of such participation interest shall not be required for amendments or waivers of provisions of this Agreement; provided, however, that the assigning Lender shall be solely responsible for may, in any withholding taxes agreement with a participant, give such participant the right to consent to any matter that (A) extends the Revolving Credit Termination Date as to such participant or any filing or reporting requirements relating other date upon which any payment of money is due to such participant, (B) reduces the rate of interest owing to such participant, any fee or any other monetary amount owing to such participant, or (C) reduces the amount of any installment of principal owing to such participant. Any Lender that sells a participation to any Person that is a "foreign corporation, partnership or trust" within the meaning of the Code shall include in its participation agreement with such Person a covenant by such Person that such Person will comply with the provisions of Section 11.8 as if such Person were a Lender and shall hold Borrower and provide that the Administrative Agent and their respective successors, permitted assigns, officers, directors, employees, agents, and representatives harmless against the same. Participants shall have no Rights under the Loan Documents, other than certain voting Rights as provided below. Subject to the following, each Lender Borrowers shall be entitled to obtain third party beneficiaries of such covenant.
(on behalf of its Participantse) the benefits of SECTION 4 with respect to all participations in its part of the Obligation outstanding from time to time, so long as Borrower KeyBank National Association shall not be obligated enter into any agreement with any other Lender pursuant to pay any amount in excess of the amount that would be due to such Lender under SECTION 4 calculated as though no participations have been made. No Lender shall sell any participating interest under which the Participant shall have any Rights former agrees not to approve consent to any amendment, modification, modification or waiver of any Loan Document, except to the extent such amendment, modification, or waiver extends the due date for payment provision of any amount in respect of principal (other than mandatory prepayments), interest, or fees due under the Loan Documents, reduces the interest rate or the amount of principal or fees applicable to the Obligation (except such reductions as are contemplated by the Loan Documents), or releases all or any substantial portion of the Guaranties under the Loan Documents; provided that, in those cases where a Participant is entitled to the benefits of SECTION 4 or a Lender grants Rights to its Participants to approve amendments to or waivers of the Loan Documents respecting the matters previously described in this sentence, such Lender must include a voting mechanism in the relevant participation agreement or agreements, as the case may be, whereby a majority of such Lender's portion of the Obligation (whether held by such Lender or Participant) shall control the vote for all of such Lender's portion of the Obligation. Except in the case of the sale of a participating interest to another Lender, the relevant participation agreement shall not permit the Participant to transfer, pledge, assign, sell participations in, or otherwise encumber its portion of the Obligation, unless Agreement without the consent of the transferring Lender (which consent will not be unreasonably withheld) has been obtained. NBPLP CREDIT AGREEMENTsuch other Lender.
(fi) Notwithstanding any other provision set forth anything to the contrary contained in this Agreement, any Lender may(a "Designating Lender") may grant to one or more special purpose funding vehicles (each, without notice toan "SPV"), or the consent of Borrower or Administrative Agent, at any time assign and pledge all or any portion of its Borrowings and its Notes (to the extent any Principal Debt owed to identified as such assigning Lender is evidenced by a Note or Notes) to any Federal Reserve Bank as collateral security pursuant to Regulation A and any Operating Circular issued by such Federal Reserve Bank or any Lender which is a fund may pledge all or any portion of its Borrowings and its Notes (to the extent any Principal Debt owed to such assigning Lender is evidenced by a Note or Notes) to its trustee in support of its obligations to its trustee. No such assignment shall release the assigning Lender from its obligations hereunder.
(g) Any Lender may furnish any information concerning the Loan Parties in the possession of such Lender writing from time to time to Eligible Assignees and Participants (including prospective Eligible Assignees and Participants), subject by the Designating Lender to the provisions Administrative Agent and Trendwest, the option to provide to the Borrowers all or any part of SECTION 14.14any Revolving Loan that such Designating Lender would otherwise be obligated to make to the Borrowers pursuant to this Agreement; provided, however, that (A) nothing in this Agreement shall constitute a commitment by any SPV to make any Revolving Loan, (B) if an SPV elects not to exercise such option or otherwise fails to provide all or any part of such Revolving Loan, the Designating Lender shall be obligated to make such Revolving Loan pursuant to the terms of this Agreement, and (C) the Designating Lender shall remain liable for any indemnity or other payment obligation with respect to its Commitment. The making of a Revolving Loan by an SPV shall utilize the Commitment of the Designating Lender to the same extent, and as if, such Revolving Loan were made by such Designating Lender.
(ii) As to any Revolving Loans or portion thereof made by it, each SPV shall have all the rights that a Lender making such Revolving Loans or portion thereof would have had under this Agreement; provided, however, that each SPV shall have granted to its Designating Lender an irrevocable power of attorney, to deliver and receive all communications and notices under this Agreement (and any related documents) and to exercise on such SPV's behalf, all of such SPV's voting rights under this Agreement. No additional Revolving Note shall be required to evidence the Revolving Loans or portion thereof made by an SPV; and the related Designating Lender shall be deemed to hold its Revolving Note as agent for such SPV to the extent of the Revolving Loans or portion thereof funded by such SPV. In addition, any payments for the account of any SPV shall be paid to its Designating Lender as agent for such SPV.
(iii) Each party to this Agreement hereby agrees that no SPV shall be liable for any indemnity or payment under this Agreement for which a Lender would otherwise be liable. In furtherance of the foregoing, each such party hereby agrees (which agreements shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior indebtedness of any SPV, it will not institute against, or join any other person in instituting against, such SPV any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any State thereof.
(iv) In addition, notwithstanding anything to the contrary contained in this Section 11.7(f) or otherwise in this Agreement, any SPV may (A) at any time and without paying any processing fee therefor, assign or participate all or a portion of its interest in any Revolving Loans to the Designating Lender or to any financial institutions providing liquidity and/or credit support to or for the account of such SPV to support the funding or maintenance of Revolving Loans and (B) disclose on a confidential basis any non-public information relating to its Revolving Loans to any rating agency, commercial paper dealer or provider of any surety, guarantee or credit or liquidity enhancements to such SPV. This Section 11.7(f) may not be amended without the written consent of any Designating Lender affected thereby.
Appears in 1 contract
Successors and Assigns; Assignments and Participations. (a) This Agreement shall be binding upon, and inure to the benefit of the parties hereto and their respective successors and assigns, except that (i) Borrower may not, directly or indirectly, assign or transfer, or attempt to assign or transfer, any of its Rights, duties, duties or obligations under any Loan Documents without the express written consent of all Lenders, and (ii) except as permitted NBPLP CREDIT AGREEMENT under this SectionSECTION 13.13, no Lender may transfer, pledge, assign, sell any participation in, or otherwise encumber its portion of the Obligation.
(b) Each Lender may assign to one or more Eligible Assignees all or a portion of its Rights and obligations under this Agreement and the other Loan Documents (including, without limitation, including all or a portion of its Borrowings Commitment, Borrowings, and its Notes to the extent any Principal Debt owed to such assigning Lender is evidenced by a Note or Notes); provided, however, that:
(i) each such assignment shall be to an Eligible Assignee;
(ii) except in the case of an assignment to another Lender or in the case of an assignment of all of a Lender's Rights and obligations under this Agreement and the other Loan Documents, any such partial assignment under the Facility shall not be less than in an amount at least equal to $10,000,000 or an integral multiple of $5,000,000 unless Borrower and Administrative Agent consent thereto (in their sole discretion) in writing which may be evidenced by their acceptance and execution of the related Assignment and Acceptance Agreement; provided that, no partial assignment for the Facility (including any assignment among Lenders) may result in any Lender holding less than $10,000,000, provided further that, a Lender may hold an amount less than $10,000,000 but greater than $5,000,000 only if such Lender shall hold at least $10,000,000 in the aggregate of this Facility and the Multi- Year Revolving Agreement (notwithstanding the foregoing, in the event the Multi-Year Revolving Agreement is terminated, any Lender may continue to hold an amount in this Facility greater than or equal to the amount such Lender held on the date of the termination of the Multi-Year Revolving Agreement)excess thereof;
(iii) each such assignment by a Lender shall be of a constant, and not varying, percentage of all of its Rights and obligations under this Agreement and the Notes; and
(iv) the parties to such assignment shall execute and deliver to Administrative Agent for its acceptance an Assignment and Acceptance Agreement in the form of EXHIBIT E heretoE, together with any Notes (to the extent any Principal Debt owed to such assigning Lender is evidenced by a Note or Notes) subject to such assignment and a processing fee of $3,500, including, without limitation, any assignment between Lenders; and
(iv) so long as any Lender is an Agent under this Agreement, such Lender (or an Affiliate of such Lender) shall retain an economic interest in the Loan Documents, will not assign all of its Rights, duties, or obligations under the Loan Documents, except to an Affiliate of such Lender, and will not enter into any Assignment and Acceptance Agreement that would have the effect of such Lender assigning all of its Rights, duties, or obligations under the Loan Documents to any Person other than an Affiliate of such Lender unless such Agent has relinquished such title in accordance with SECTION 13.1 (with respect to Administrative Agent) or SECTION 13.10 (with respect to the other Agents). Upon execution, delivery, and acceptance of such Assignment and Acceptance Agreement, the assignee thereunder shall be a party hereto and, to the extent of such assignment, have the obligations, Rights, and benefits of a Lender under the Loan Documents and the assigning Lender shall, to the extent of such assignment, relinquish its Rights rights and be released from its obligations under the Loan Documents. Upon the consummation of any assignment pursuant to this SectionSECTION 13.13(b), but only upon the request of the assignor or assignee made through assignor, Administrative Agent, and Borrower shall issue make appropriate arrangements so that, if required, new Notes are issued to the assignor and the assignee, reflecting such Assignment and Acceptance. If the assignee is not incorporated under the laws Legal Requirements of the United States of America or a state thereof, then it shall deliver to Borrower and Administrative Agent certification as to exemption from deduction or withholding of Taxes in accordance with SECTION 4.6.
(c) Administrative Agent shall maintain at its address referred to in SECTION 14.3 13.3 a copy of each Assignment and Acceptance Agreement delivered to and accepted by it (and deliver a copy of each to Borrower) and a register for NBPLP CREDIT AGREEMENT the recordation of the names and addresses of the Lenders and the Commitment PercentageCommitment, and principal amount of the Borrowings owing to, each Lender from time to time (the "REGISTER"). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and Borrower, Administrative Agent Agent, and the Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of the Loan Documentsthis Agreement. The Register shall be available for inspection by Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice. Upon the consummation of any assignment in accordance with this SECTION 14.13, SCHEDULE 2.1 shall automatically be deemed amended (to the extent required) by Administrative Agent to reflect the name, address, and, where appropriate, respective Committed Sums under the Facility (as the case may be) of the assignor and assignee.
(d) Upon its receipt of an Assignment and Acceptance Agreement executed by the parties thereto, together with any Notes (to the extent any Principal Debt owed to such assigning Lender is evidenced by a Note or Notes) subject to such assignment and payment of the processing fee, Administrative Agent shall, if such Assignment and Acceptance Agreement has been completed and is in substantially the form of EXHIBIT E heretoE, (i) accept such Assignment and Acceptance Agreement, (ii) record the information contained therein in the Register, and (iii) give prompt notice thereof to the parties thereto.
(e) Subject to the provisions of this Section and in accordance with applicable Law, any Each Lender may, in the ordinary course of its commercial banking business and in accordance with applicable Law, at any time may sell participations to one (1) or more Persons (each in all or a "PARTICIPANT") participating interests in its portion of the Obligation. In the event its Rights and obligations under this Agreement including all or a portion of any such sale to a Participantits Commitment, Borrowings, and Notes; provided, however, that (i) such Lender shall remain a "Lender" under the Loan Documents and the Participant shall not constitute a "Lender" hereunder, (ii) such Lender's obligations under the Loan Documents this Agreement shall remain unchanged, (iiiii) such Lender shall remain solely responsible to the other parties hereto for the performance thereofof such obligations, (iii) the participant shall be entitled to the benefit of the yield protection provisions in SECTION 4 and the right of setoff in SECTION 3.12, and (iv) such Lender shall remain the holder of its share of the Principal Debt for all purposes under the Loan Documents, (v) Borrower and Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender's Rights and obligations under the Loan Documentsthis Agreement, and (vi) such Lender shall be solely responsible for any withholding taxes or any filing or reporting requirements retain the sole right to enforce the obligations of Borrower relating to such participation its Borrowings and shall hold Borrower its Notes and Administrative Agent and their respective successors, permitted assigns, officers, directors, employees, agents, and representatives harmless against the same. Participants shall have no Rights under the Loan Documents, other than certain voting Rights as provided below. Subject to the following, each Lender shall be entitled to obtain (on behalf of its Participants) the benefits of SECTION 4 with respect to all participations in its part of the Obligation outstanding from time to time, so long as Borrower shall not be obligated to pay any amount in excess of the amount that would be due to such Lender under SECTION 4 calculated as though no participations have been made. No Lender shall sell any participating interest under which the Participant shall have any Rights to approve any the amendment, modification, or waiver of any Loan Document, except to the extent such amendment, modification, or waiver extends the due date for payment provision of any amount in respect of principal this Agreement (other than mandatory prepayments)amendments, interestmodifications, or fees due under the Loan Documents, reduces the interest rate or waivers decreasing the amount of principal or fees applicable to the Obligation (except such reductions as are contemplated by the Loan Documents)of, or releases all or any substantial portion of the Guaranties under the Loan Documents; provided that, in those cases where a Participant rate at which interest is entitled to the benefits of SECTION 4 or a Lender grants Rights to its Participants to approve amendments to or waivers of the Loan Documents respecting the matters previously described in this sentencepayable on, such Lender must include a voting mechanism in Borrowings or Notes, extending any scheduled principal payment date or date fixed for the relevant participation agreement payment of interest on such Borrowings or agreements, as the case may be, whereby a majority of such Lender's portion of the Obligation (whether held by such Lender or Participant) shall control the vote for all of such Lender's portion of the Obligation. Except in the case of the sale of a participating interest to another Lender, the relevant participation agreement shall not permit the Participant to transfer, pledge, assign, sell participations inNotes, or otherwise encumber extending or increasing its portion of the Obligation, unless the consent of the transferring Lender (which consent will not be unreasonably withheld) has been obtained. NBPLP CREDIT AGREEMENTCommitment).
(f) Notwithstanding any other provision set forth in this Agreement, any Lender may, without notice to, or the consent of Borrower or Administrative Agent, may at any time assign and pledge all or any portion of its Borrowings and its Notes (to the extent any Principal Debt owed to such assigning Lender is evidenced by a Note or Notes) to any Federal Reserve Bank as collateral security pursuant to Regulation A and any Operating Circular issued by such Federal Reserve Bank or any Lender which is a fund may pledge all or any portion of its Borrowings and its Notes (to the extent any Principal Debt owed to such assigning Lender is evidenced by a Note or Notes) to its trustee in support of its obligations to its trusteeBank. No such assignment shall release the assigning Lender from its obligations hereunder.
(g) Any Lender may furnish any information concerning the Loan Parties Companies in the possession of such Lender from time to time to Eligible Assignees assignees and Participants participants (including prospective Eligible Assignees assignees and Participants), subject participants) to the provisions of SECTION 14.14extent such proposed assignee or participant has executed a customary confidentiality agreement.
Appears in 1 contract
Successors and Assigns; Assignments and Participations. (a) This Agreement shall be binding uponSubject to Sections 12.2(f) and (h), and inure to so long as such assignment does not result in there being more than eighty (80) Note Purchasers and Participants in the benefit aggregate, a Note Purchaser may at any time, with the consent of the parties hereto Administrative Agent and their respective successors and assigns, except that the Issuer (i) Borrower may not, directly or indirectlysuch consent not to be unreasonably withheld), assign or transfer, or attempt to assign or transfer, any of its Rights, duties, or obligations under any Loan Documents without the express written consent of all Lenders, and (ii) except as permitted NBPLP CREDIT AGREEMENT under this Section, no Lender may transfer, pledge, assign, sell any participation in, or otherwise encumber its portion of the Obligation.
(b) Each Lender may assign to one or more Eligible Assignees all or a portion of its Rights rights and obligations under the Loan Documents (including, without limitation, delegate all or a portion of its Borrowings Revolving Commitment under this Agreement and the other Transaction Documents (including all its Notes rights and obligations with respect to the extent any Principal Debt owed Notes) to such assigning Lender is evidenced by one or more Persons (a Note or Notes“Transferee”); provided, however, that:
that Issuer consent shall not be required (i) each such in connection with an assignment shall be to an Eligible Assignee;
of a Note Purchaser’s Note Fundings hereunder, (ii) except in the case of an assignment to another Lender or in the case of an connection with a Note Purchaser’s assignment of all of a Lender's Rights and obligations under the Loan Documents, any such partial assignment under the Facility shall not be less than $5,000,000 unless Borrower and Administrative Agent consent thereto (in their sole discretion) in writing which may be evidenced by their acceptance and execution of the related Assignment and Acceptance Agreement; provided that, no partial assignment for the Facility (including any assignment among Lenders) may result in any Lender holding less than $10,000,000, provided further that, a Lender may hold an amount less than $10,000,000 but greater than $5,000,000 only if such Lender shall hold at least $10,000,000 in the aggregate of this Facility and the Multi- Year its Revolving Agreement (notwithstanding the foregoing, in the event the Multi-Year Revolving Agreement is terminated, any Lender may continue to hold an amount in this Facility greater than or equal to the amount such Lender held on the date of the termination of the Multi-Year Revolving Agreement);
(iii) the parties to such assignment shall execute and deliver to Administrative Agent for its acceptance an Assignment and Acceptance Agreement in the form of EXHIBIT E hereto, together with any Notes (to the extent any Principal Debt owed to such assigning Lender is evidenced by a Note or Notes) subject to such assignment and a processing fee of $3,500, including, without limitation, any assignment between Lenders; and
(iv) so long as any Lender is an Agent under this Agreement, such Lender (or an Affiliate of such Lender) shall retain an economic interest in the Loan Documents, will not assign all of its Rights, duties, or obligations under the Loan Documents, except Commitment to an Affiliate of such LenderNote Purchaser or (iii) upon the occurrence and continuance of an Event of Default or Early Wind-Down Trigger Event. Notwithstanding anything to the contrary in this Agreement, prior to the occurrence of an Event of Default, no Note Purchaser shall assign, pledge or otherwise transfer any Note or other Obligation to an Issuer Competitor without the prior written consent of Issuer. The Transferee and will not enter into any Assignment such Note Purchaser shall execute and Acceptance Agreement that would have deliver for acceptance and recording in the effect of such Lender assigning all of its RightsNote Purchaser Register, dutiesa Note Purchaser Addition Agreement, or obligations under the Loan Documents to any Person other than an Affiliate of such Lender unless such Agent has relinquished such title which shall be in accordance with SECTION 13.1 (with respect form and substance reasonably acceptable to Administrative Agent) or SECTION 13.10 Agent in its sole discretion (with respect to the other Agents“Note Purchaser Addition Agreement”). Upon such execution, delivery, acceptance and acceptance of recording, from and after the effective date determined pursuant to such Assignment and Acceptance Note Purchaser Addition Agreement, (i) the assignee Transferee thereunder shall be a party hereto and, to the extent of provided in such assignmentNote Purchaser Addition Agreement, have the obligationssame rights, Rights, benefits and benefits of a Lender under the Loan Documents and the assigning Lender shall, to the extent of such assignment, relinquish its Rights and be released from its obligations under the Loan Documents. Upon the consummation of any assignment pursuant to this Section, but only upon the request of the assignor or assignee made through Administrative Agent, Borrower shall issue appropriate Notes to the assignor and the assignee, reflecting such Assignment and Acceptance. If the assignee is not incorporated under the laws of the United States of America or a state thereof, as it shall deliver to Borrower and Administrative Agent certification as to exemption from deduction or withholding of Taxes in accordance with SECTION 4.6.
(c) Administrative Agent shall maintain at its address referred to in SECTION 14.3 a copy of each Assignment and Acceptance Agreement delivered to and accepted by would if it and a register for NBPLP CREDIT AGREEMENT the recordation of the names and addresses of the Lenders and the Commitment Percentage, and principal amount of the Borrowings owing to, each Lender from time to time (the "REGISTER"). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and Borrower, Administrative Agent and the Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of the Loan Documents. The Register shall be available for inspection by Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice. Upon the consummation of any assignment in accordance with this SECTION 14.13, SCHEDULE 2.1 shall automatically be deemed amended (to the extent required) by Administrative Agent to reflect the name, address, and, where appropriate, respective Committed Sums under the Facility (as the case may be) of the assignor and assignee.
(d) Upon its receipt of an Assignment and Acceptance Agreement executed by the parties thereto, together with any Notes (to the extent any Principal Debt owed to such assigning Lender is evidenced by were a Note or Notes) subject to such assignment and payment of the processing fee, Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of EXHIBIT E hereto, (i) accept such Assignment and Acceptance Agreement, (ii) record the information contained therein in the Register, and (iii) give prompt notice thereof to the parties thereto.
(e) Subject to the provisions of this Section and in accordance with applicable Law, any Lender may, in the ordinary course of its commercial banking business and in accordance with applicable Law, at any time sell to one or more Persons (each a "PARTICIPANT") participating interests in its portion of the Obligation. In the event of any such sale to a Participant, (i) such Lender shall remain a "Lender" under the Loan Documents and the Participant shall not constitute a "Lender" Purchaser hereunder, (ii) such Lender's obligations under the Loan Documents assigning Note Purchaser shall remain unchanged, (iii) such Lender shall remain solely responsible for the performance thereof, (iv) such Lender shall remain the holder be relieved of its share of the Principal Debt for all purposes under the Loan Documents, (v) Borrower and Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender's Rights and obligations under the Loan Documents, and (vi) such Lender shall be solely responsible for any withholding taxes or any filing or reporting requirements relating to such participation and shall hold Borrower and Administrative Agent and their respective successors, permitted assigns, officers, directors, employees, agents, and representatives harmless against the same. Participants shall have no Rights under the Loan Documents, other than certain voting Rights as provided below. Subject to the following, each Lender shall be entitled to obtain (on behalf of its Participants) the benefits of SECTION 4 hereunder with respect to all participations in its part of the Obligation outstanding from time to time, so long as Borrower shall not be obligated to pay any amount in excess of the amount that would be due to such Lender under SECTION 4 calculated as though no participations have been made. No Lender shall sell any participating interest under which the Participant shall have any Rights to approve any amendment, modification, Note Fundings or waiver of any Loan Document, except to the extent such amendment, modification, or waiver extends the due date for payment of any amount in respect of principal (other than mandatory prepayments), interest, or fees due under the Loan Documents, reduces the interest rate or the amount of principal or fees applicable to the Obligation (except such reductions as are contemplated by the Loan Documents), or releases all or any substantial assigned portion of the Guaranties under the Loan Documents; provided that, in those cases where a Participant is entitled to the benefits of SECTION 4 or a Lender grants Rights to its Participants to approve amendments to or waivers of the Loan Documents respecting the matters previously described in this sentence, such Lender must include a voting mechanism in the relevant participation agreement or agreementsthereof, as the case may be, whereby a majority of to the extent that such Lender's portion of obligations shall have been expressly assumed by the Obligation Transferee pursuant to such Note Purchaser Addition Agreement (whether held by such Lender or Participant) shall control the vote for all of such Lender's portion of the Obligation. Except and, in the case of a Note Purchaser Addition Agreement covering all or the sale of a participating interest to another Lender, the relevant participation agreement shall not permit the Participant to transfer, pledge, assign, sell participations in, or otherwise encumber its remaining portion of the Obligation, unless the consent of the transferring Lender (which consent will not be unreasonably withheld) has been obtained. NBPLP CREDIT AGREEMENT
(f) Notwithstanding any other provision set forth in an assigning Note Purchaser’s rights and obligations under this Agreement, any Lender may, without notice to, or the consent of Borrower or Administrative Agent, at any time assign and pledge all or any portion of its Borrowings and its Notes (to the extent any Principal Debt owed to such assigning Lender is evidenced by a Note or Notes) to any Federal Reserve Bank as collateral security pursuant to Regulation A and any Operating Circular issued by such Federal Reserve Bank or any Lender which is a fund may pledge all or any portion of its Borrowings and its Notes (to the extent any Principal Debt owed to such assigning Lender is evidenced by a Note or Notes) to its trustee in support of its obligations to its trustee. No such assignment shall release the assigning Lender from its obligations hereunder.
(g) Any Lender may furnish any information concerning the Loan Parties in the possession of such Lender from time to time to Eligible Assignees and Participants (including prospective Eligible Assignees and Participants), subject to the provisions of SECTION 14.14.such
Appears in 1 contract
Samples: Note Issuance and Purchase Agreement (Enova International, Inc.)
